Thompson

Opinion by Chief Judge HUG; Concurrence by Judge KOZINSKI; Concurrence by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge TASHIMA.

JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLETCHER, JUDGE REINHARDT, JUDGE TASHIMA, JUDGE THOMAS concurring in Parts I, II, III, and IV, and JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLET.CHER, JUDGE THOMAS concurring in Part V. JUDGE BROWNING, JUDGE SCHROEDER, JUDGE FLECTCHER, JUDGE'KO-ZINSKI, JUDGE O’SCANNLAIN, JUDGE T.G. NELSON, JUDGE KLEÍNFELD, JUDGE THOMAS concurring in the judgment. JUDGE REINHARDT and JUDGE TASHIMA dissenting from part V and from the judgment.

I.

The procedural history, evidence, and facts in this case are set out in the Supreme Court’s opinion reversing our decision to recall the mandate. Calderon v. Thompson, - U.S.-, 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998). Therefore, we will limit our discussion of the procedural history to the *920 events related to Thompson’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).

On July 23, 1997, while the motion to recall the mandate was pending before the en banc court, Thompson filed…

concurring in the judgment, with whom O’SCANNLAIN, Circuit Judge, joins:

I join that portion of Judge Kleinfeld’s concurrence (the second, third and fourth full paragraphs on page 930) that recognizes the full court never voted to take en banc Thompson’s motion for authorization to file a successive habeas petition.

Further, the full court never voted to consider en banc case No. 97-99018, Thompson’s appeal from the denial of his Rule 60(b) motion. Nor were the procedures of Circuit Rule 22-3(a)(3) followed. This court’s July 30, 1997, order announces that the majority of the active judges had voted to take en banc Nos. 95-99014 and 95-99015; there is no mention of No. 97-99018. The ease is therefore still properly pending before the three-judge panel. Our August 3, 1997, order dismissing No. 97-99018, and our May 13, 1998, order reinstating it, were ultra vires.

Because I believe we have no authority to speak, I say nothing further. ■

concurring in the judgment, with whom O’SCANNLAIN and T.G. NELSON, Circuit Judges, join, and with whom KOZINSKI, Circuit Judge, joins in part:

I concur in the result the majority reaches, that Thompson has not demonstrated an en *927 titlement…

concurring and dissenting:

I concur in Parts I, II, III and IV of the majority opinion. However, because, in my opinion, Thomas Thompson has made a pri-ma facie showing of facts which, if believed, would mean that no reasonable juror could find him guilty of rape, I dissent from Part V. I would grant Thompson permission to file a second habeas petition and remand to the district court for a full hearing on the new evidence that he has presented.

This court’s refusal to allow Thompson to file a habeas petition will result in the execution of a man who was convicted and sentenced to death in a trial that violated fundamental principles of fairness, in which the constitutional violations were so egregious that seven former prosecutors, themselves highly experienced in death penalty cases, took the remarkable step of filing an amicus brief on his behalf with the United States Supreme Court. 1 Last August, this en banc court held Thompson’s trial constitutionally defective by a seven to four vote — a conclusion that has not to date been refuted by any court. 2 While we are barred on procedural grounds from reversing Thompson’s conviction and death sentence on the basis of these most…