Bush

dissenting:

In my view, we should not be exercising jurisdiction in this case. We submitted this case on October 20, 2005, and we issued a memorandum disposition that was filed December 13, 2005 and published at 162 FedAppx. 689 (9th Cir.2005). The mandate issued on January 4, 2006.

Issuance of the mandate means the case was all over and final. The reason we are now issuing this disposition in a case that came before the district court in 2001, and before our court in 2005, is that Bush moved to recall the mandate because his attorney failed to file a petition of certiora-ri to the Supreme Court. We granted this request, though I dissented. In a death penalty case where we recalled the mandate, the Supreme Court reversed us because recalling the mandate was “a grave abuse of discretion.” Calderon v. Thompson, 523 U.S. 538, 542 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998). In Calderon v. Thompson, the Court held that we can recall the mandate “only in extraordinary circumstances,” and that our power to recall a mandate is “to be held in reserve against grave, unforseen contingencies.” Id. at 550 , 118 S.Ct. 1489 . I cannot see that any contingency here is “unforseen,” nor that the…

ORDER GRANTING PETITION FOR REHEARING AND WITHDRAWING MEMORANDUM DISPOSITION

The petition for panel rehearing, filed April 5, 2007, is GRANTED. The memorandum disposition filed on December 13, 2005, and appearing at 162 FedAppx. 689 (9th Cir.2005) is withdrawn. The superseding memorandum disposition will be filed concurrently with this order. The parties may file an additional petition for rehearing or rehearing en banc. All other pending motions are denied as moot.

Judge Kleinfeld dissents from this order.

MEMORANDUM **

Anthony Bush (“Bush”) appeals the district court’s denial of his 28 U.S.C. § 2254 *578 (“Section 2254”) petition for a writ of habe-as corpus. Bush claims that the State violated his constitutional rights via (1) the trial court’s failure to require that the prosecutor provide a race-neutral explanation for using a peremptory challenge to excuse the last African-American juror from the alternate jury panel, (2) the trial court’s admission into evidence of irrelevant and prejudicial excerpts from letters authored by Bush and the prosecutor’s use of those excerpts to comment improperly on Bush’s failure to testify at trial, (3) the trial court’s exclusion of…