Siripongs

dissenting:

Petitioner raises serious and substantial issues that bear on an “accomplice defense.” These issues implicate the fundamental fairness and validity of the trial, particularly its penalty phase, and should be resolved at an evidentiary hearing before we determine whether to recall our earlier mandate or grant a second habeas petition. In the meantime, a stay of execution is warranted.

We must consider a motion for stay of execution and application for leave to file a successive petition for writ of habeas corpus under 28 U.S.C. § 2244 (b)(3)(A). We also consider a petition to recall the mandate.

This is the fourth time this capital case has been before this panel. Petitioner Jaturun Siripongs was convicted and sentenced to death in 1983 for the brutal murders of the owner and an employee of a Thai market in Orange County. On his first habeas petition, we remanded to the district court for an evidentiary hearing on his claims of ineffective assistance of counsel in the guilt and penalty phases of his trial. See Siripongs v. Calderon, 35 F.3d 1308 (9th Cir.1994) (Siripongs I). We were concerned that his trial lawyer had failed to put on a defense that the crimes were actually committed by an accomplice whom Siripongs refused to identify because of his Thai cultural values. See id. at 1315-16 .

The evidentiary hearing revealed that Siri-pongs was an accomplished informant who held no cultural beliefs that would interfere with his disclosing the name of his accomplice. See Siripongs v. Calderon, 133 F.3d 732, 735 (9th Cir.1998) (Siripongs II). We affirmed the…