Kevin Cooper v. Arthur Calderon, Warden of California State Prison at San Quentin

308 F.3d 1020 Kevin COOPER, Petitioner-Appellant, v. Arthur CALDERON, Warden of California State Prison at San Quentin, et al., Respondent-Appellee. No. 98-99023. United States Court of Appeals, Ninth Circuit. October 18, 2002. As Amended November 13, 2002. Before BROWNING, RYMER, and GOULD, Circuit Judges. ORDER 1 Judges Rymer and Gould vote to dismiss the petition for rehearing and rehearing en banc to the extent that the petition for rehearing and rehearing en banc requests reconsideration of the denial of authorization to file a second or successive application, and to deny the petition to the extent that it requests reconsideration of whether his petition is a second or successive petition under 28 U.S.C. § 2244 (b). Judge Browning votes to grant the petition for rehearing and makes no recommendation whether the case should be reheard en banc. He dissents from the order, which we enter for the reasons that follow. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on the petition. Fed. R. App. P. 35. 2 First, we held that Cooper's petition is a second or successive petition under 28 U.S.C. § 2244 (b),…

ORDER

Judges Rymer and Gould vote to dismiss the petition for rehearing and rehearing en banc to the extent that the petition for rehearing and rehearing en banc requests reconsideration of the denial of authorization to file a second or successive application, and to deny the petition to the extent that it requests reconsideration of whether his petition is a second or successive petition under 28 U.S.C. § 2244 (b). Judge Browning votes to grant the petition for rehearing and makes no recommendation whether the case should be reheard en banc. He dissents from the order, which we enter for the reasons that follow. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on the petition. Fed. R. App. P. 35.

First, we held that Cooper’s petition is a second or successive petition under 28 U.S.C. § 2244 (b), and that he may not proceed with it. Cooper v. Calderon, 274 F.3d 1270, 1275 (9th Cir.2001). Therefore, we must dismiss Cooper’s petition for rehearing, because denial of authorization by a court of appeals to file a second or successive application “shall not be the subject of a petition for rehearing.” 28 U.S.C. §…

dissenting.

I respectfully dissent from the denial of rehearing. Although I joined in the panel’s per curiam opinion published at 274 F.3d 1270 , I would grant rehearing based on further consideration of the record. 1 Kevin Cooper may be executed without any court considering the merits of color-able evidence that another individual, Kenneth Koon, confessed to the murders. This result is not compelled by AEDPA’s restrictions on “second or successive” ha-beas petitions. Because Cooper’s current habeas petition merely reasserts a claim that he raised in the first habeas petition but was never adjudicated, I do not believe that it should be barred as second or successive.

Cooper’s first habeas petition was regrettably vague. It alleged that trial counsel had been ineffective for failing to investigate a purported confession by Calvin Booker, and another purported confession by unspecified “persons in Vacaville.” After reexamining the record, I believe *1023 that Cooper made it sufficiently clear through other briefs and affidavits that the latter referred to a purported confession by Kenneth Koon to informant Anthony Wisely, both inmates of Vacaville prison. The panel opinion is…