OCTOBER TERM, 1997
Syllabus
CALDERON
v. THOMPSON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-215. Argued December 9, 1997-Decided April 29, 1998
In 1983, respondent Thompson was convicted of rape and murder
and sentenced to death in a California state court. The special
circumstance of murder during the commission of rape made him
eligible for the death penalty. In ruling on his first federal
habeas petition in 1995, the District Court,
inter alia,
granted relief on his rape conviction and the rape special
circumstance, thus invalidating his death sentence. A Ninth Circuit
panel reversed the grant in June 1996, and it denied Thompson's
petition for rehearing and suggestion for hearing en banc in March
1997. In June, Thompson's certiorari petition was denied, and the
Ninth Circuit issued a mandate denying all habeas relief. The State
then set an August execution date, and the State Supreme Court
denied Thompson's fourth state habeas petition. Two days before the
execution, however, the en banc Ninth Circuit recalled its mandate
sua sponte, based on claims and evidence presented in
Thompson's first habeas petition. The court had delayed action in
the interests of comity until the conclusion of his fourth state
habeas proceeding. It asserted it had recalled the mandate because
procedural misunderstandings at the court prevented it from calling
for en banc review before the mandate issued, and because the
original panel's decision would lead to a miscarriage of justice.
In granting habeas relief, the court found that Thompson was denied
effective assistance of counsel at trial by his attorney's failure
to contest the conclusions of the State's forensic expert and to
impeach the credibility of two jailhouse informants.
Held:
1. The courts of appeals' inherent power to recall their
mandates, subject to review for an abuse of discretion,
Hawaii
Housing Authority v.
Midkiff, 463 U. S. 1323, 1324
(REHNQUIST, J., in chambers), is a power of last resort, to be held
in reserve against grave, unforeseen circumstances. The Ninth
Circuit's recall decision rests on the most doubtful of grounds.
Even if its en banc process somehow malfunctioned, the court
compounded the error by delaying further action for more than four
months after the alleged misunderstandings occurred. The promptness
with which a court acts to correct its mistakes is evidence of the
adequacy of its grounds for reopening the case. Here, just two days
before the scheduled execution, the court recalled a judgment
on
539
which the State, not to mention this Court, had placed heavy
reliance. It is no answer for the court to assert it delayed action
in the interests of comity when it considered only the State
Supreme Court's interest in resolving Thompson's fourth habeas
petition and not the more vital interests of California's executive
branch. Pp. 549-553.
2. The recall was consistent with the letter of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
which sets limits on successive federal habeas applications. Since
the court's specific recitation that it acted on the exclusive
basis of Thompson's first federal petition is not disproved by
consideration of matters presented in a later filing, the court is
deemed to have acted on the first, rather than a successive,
application. Although AEDPA's terms do not govern this case, a
court of appeals must exercise its discretion in a manner
consistent with the objects of that statute and, in a habeas case,
must be guided by the general principles underlying this Court's
habeas jurisprudence. Pp. 553-554.
(a) "[T]he profound societal costs that attend the exercise of
habeas jurisdiction,"
Smith v.
Murray, 477 U. S. 527,539, make
it necessary to impose significant limits on the federal courts'
discretion to grant habeas relief. These limits reflect the Court's
enduring respect for "the State's interest in the finality of
convictions that have survived direct [statecourt] review."
Brecht v.
Abrahamson, 507 U. S. 619, 635.
Finality is essential to the criminal law's retributive and
deterrent functions, and it enhances the quality of judging. It
also serves to preserve the federal balance, for "a [State's power]
to pass laws means little if the State cannot enforce them."
McCleskey v.
Zant, 499 U. S. 467, 491. A
State's finality interests are compelling when a federal court of
appeals issues a mandate denying federal habeas relief. Only with
an assurance of real finality can the State execute its moral
judgment and can victims of crime move forward knowing the moral
judgment will be carried out. Unsettling these expectations
inflicts a profound injury to the "powerful and legitimate interest
in punishing the guilty,"
Herrera v.
Collins, 506 U.
S. 390, 421 (O'CONNOR, J., concurring), an interest shared by the
State and crime victims alike. In these circumstances, the prisoner
has already had extensive review of his claims in federal and state
courts. In the absence of a strong showing of actual innocence, the
State's interests in actual finality outweigh the prisoner's
interest in obtaining yet another opportunity for review. Pp.
554-557.
(b) Unless it acts to avoid a miscarriage of justice as defined
by this Court's habeas jurisprudence, a federal court of appeals
abuses its discretion when it
sua sponte recalls its mandate
to revisit the merits of an earlier decision denying habeas relief
to a state prisoner. This
540
Syllabus
standard is altogether consistent with AEDPA's central concern
that the merits of concluded criminal proceedings not be revisited
in the absence of a strong actual innocence showing. The rules
applicable in all cases where the court recalls its mandate further
ensure the practice is limited to the most rare and extraordinary
case. Moreover, like other applicable habeas standards, this rule
is objective in content, well defined in the case law, and familiar
to federal courts.
McCleskey, supra, at 496. Pp.
558-559.
(c) The miscarriage of justice standard was not met in this
case.
The standard is concerned with actual, as compared to legal,
innocence.
Sawyer v.
Whitley, 505 U. S. 333, 339. To be
credible, the claim must be based on reliable evidence not
presented at trial.
Schlup v.
Delo, 513 U. S. 298, 324. A
petitioner asserting his actual innocence of the underlying crime
must show "it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence" presented in
his habeas petition.
Id., at 327. A capital petitioner
challenging his death sentence in particular must show "by clear
and convincing evidence" that no reasonable juror would have found
him eligible for the death penalty in light of the new evidence.
Sawyer, supra, at 348. Thompson's claims fail under either
standard. The record of his first federal habeas petition governs
his actual innocence claim. He presents little evidence to
undermine the trial evidence. The prosecution presented ample
evidence showing that he committed rape, and his own
testimony-riddled with inconsistencies and falsehoods-was
devastating. Neither the additional evidence he presented to
impeach the credibility of two jailhouse informants nor a
pathologist's testimony disputing opinions of prosecution trial
witnesses meets the "more likely than not" showing necessary to
vacate his stand-alone rape conviction, much less the "clear and
convincing" showing necessary to vacate his death sentence. There
is no basis for a miscarriage of justice finding. Pp. 559-566.
120 F.3d
1045, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined.
SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG,
and BREYER, JJ., joined,
post, p. 566.
Holly D. Wilkens, Supervising Deputy Attorney General of
California, argued the cause for petitioner. With her on the briefs
were
Daniel E. Lungren, Attorney General,
George
Williamson, Chief Assistant Attorney General,
Dane
541
R. Gillette, Senior Assistant Attorney General, and
Pamela A. Ratner, Supervising Deputy Attorney General.
Gregory A. Long argued the cause for respondent. With him
on the brief were
Quin Denvir and
Andrew S.
Love, by appointment of the Court, 522 U. S. 1014.*
JUSTICE KENNEDY delivered the opinion of the Court. Thomas M.
Thompson was convicted in California state court of the rape and
murder of Ginger Fleischli. More than 15 years after the crime, 13
years after Thompson's conviction, and 7 years after Thompson filed
his first petition for federal habeas relief, the United States
Court of Appeals for the Ninth Circuit issued its mandate denying
the writ of habeas corpus. Two days before Thompson's scheduled
execution, however, the Court of Appeals, sitting en bane, recalled
the mandate and granted habeas relief to Thompson. The case
presents two issues: First, whether the Court of Appeals' order
recalling its mandate violated 28 U. S. C. § 2244(b) (1994 ed.,
Supp. II), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. 104-132, § 104, 110 Stat.
1218; and second, whether the
*Briefs of
amici curiae urging reversal were filed for
the State of Arizona et al. by
Grant Woods, Attorney General
of Arizona,
Paul J.
McMurdie, and
Randall M.
Howe, Assistant Attorney General, joined by the Attorneys
General for their respective States as follows:
M. Jane
Brady of Delaware,
Robert A. Butterworth of Florida,
Alan G.
Lance of Idaho,
Carla J.
Stovall of Kansas,
Richard P. Ieyoub of Louisiana,
Jeremiah W Nixon of Missouri,
Joseph P. Mazurek of
Montana,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Dennis C.
Vacco of New York,
Michael F.
Easley of North Carolina,
Betty D.
Montgomery of Ohio,
W A. Drew Edmondson of Oklahoma,
D. Michael Fisher of Pennsylvania,
Charles M. Condon
of South Carolina,
Mark W Barnett of South Dakota,
Jan
Graham of Utah,
Christine O.
Gregoire of
Washington, and
Richard Cullen of Virginia; and for the
Criminal Justice Legal Foundation by
Kent
Edward M. Chikofsky and
Barbara E. Bergman filed a
brief for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance.
542
order was an abuse of the court's discretion. The recall of the
mandate was not controlled by the precise terms of AEDPA, but this
does not save the order, which, we hold, was a grave abuse of
discretion.
I A
Thompson met his 20-year-old victim, Ginger Fleischli, in the
summer of 1981. Fleischli shared a Laguna Beach studio apartment
with David Leitch, with whom she had an intermittent sexual
relationship. In August of that year, Fleischli moved out and
Thompson moved in. Fleischli took up residence with Tracy Leitch,
the former wife of David Leitch.
On September 11, 1981, at about 7:30 p.m., Fleischli and Tracy
Leitch encountered Thompson and David Leitch at a pizza parlor.
Fleischli told Tracy Leitch she was afraid Thompson might kill her
if she were left alone with him. The group later went to a bar
together, but David and Tracy Leitch soon departed. At 9:30 p.m.,
Afshin Kashani joined Thompson and Fleischli, drinking with both of
them and smoking hashish with Thompson. The trio went to a second
bar before walking to Thompson's apartment around 1 a.m. At about 2
a.m., after Fleischli had gone to a nearby liquor store to buy
soda, Thompson told Kashani he wanted to have sexual intercourse
with Fleischli that night. He assured Kashani, however, that
Kashani could "have" Fleischli after Thompson and David Leitch left
for Thailand to smuggle refugees and drugs back to the United
States. App.7.
Before Fleischli returned to the apartment, Kashani began
walking to his truck, which seems to have been left at a local bar.
On the way, Kashani realized he had forgotten his cigarettes. He
returned to the apartment, where Thompson met him at the door.
Thompson appeared nervous and made Kashani wait outside while
Thompson retrieved the cigarettes. After returning to his truck,
Kashani looked for
543
Fleischli at a nearby liquor store and, not finding her, went
home.
Tracy Leitch visited Thompson's apartment the morning of
September 12, asking where Fleischli was. Lying, Thompson said she
had left the Sandpiper Inn with Kashani the night before. At a
party that evening, Tracy Leitch again asked Thompson where
Fleischli was. In response, Thompson described Fleischli in the
past tense, saying he had liked her. The next day, Tracy Leitch
filed a missing person's report with the local police
department.
On September 14, police found Fleischli's body buried in a field
10 miles from the apartment shared by Thompson and David Leitch.
The body was wrapped in rope as well as a sleeping bag and blanket,
both taken from the apartment. Fleischli's head was wrapped with
duct tape, two towels, a sheet, and her jacket. She had been
stabbed five times in the head near the right ear. The body was
bruised on the ankles, palms, and left wrist; the right wrist was
crushed. Fleischli's shirt and bra had been cut down the middle and
pulled to her elbows, restraining her arms and exposing her
breasts. She had on unbuttoned jeans, but no underwear, shoes, or
socks. A vaginal swab revealed semen consistent with Thompson's
blood type.
Police found two footprints near the body, one smooth and one
with a wavy pattern matching a shoe worn by David Leitch. Fibers
from the blanket around the body were identical to fibers found in
the trunk of David Leitch's car. The rope around the body was
smeared with paint from the car's trunk. Other fibers matched the
carpet in the apartment, which was stained with Fleischli's
blood.
On or around the day police found the body, Thompson and David
Leitch went to Mexico. Leitch returned to the United States, but
Mexican authorities arrested Thompson on September 26, 1981. He had
handcuffs with him. When questioned by police after his return to
the United States, Thompson claimed Fleischli had left his
apartment with Ka-
544
shani the night of the murder. He also said Fleischli had been
stabbed in the head, though this information had not yet been made
public. He further claimed not to have had sex with Fleischli, but
later asserted they had engaged in consensual sex.
We next recount the lengthy procedural history of the
case.
B
On November 4, 1983, an Orange County Superior Court jury
convicted Thompson of the first-degree murder and forcible rape of
Fleischli. The jury made a special finding that "the homicide of
Ginger Lorraine Fleischli was an intentional killing personally
committed by the defendant Thomas Martin Thompson." 45 Cal. 3d 86,
117, n. 23, 753 P. 2d 37, 56, n. 23 (1988). The jury further found
the special circumstance of murder during the commission of rape,
making Thompson eligible for the death penalty. After penalty phase
proceedings the jury was unanimous in recommending a capital
sentence, which the trial judge imposed. In a later trial, a
different jury found David Leitch guilty of seconddegree murder for
his role in Fleischli's slaying.
On April 28, 1988, the California Supreme Court unanimously
affirmed Thompson's rape and murder convictions and the jury's
finding of the rape special circumstance. The court also affirmed
Thompson's death sentence, with two of seven justices dissenting.
The dissenters concurred in the affirmance of the murder and rape
convictions and the rape special circumstance, but asserted the
jury's sentencing recommendation had been influenced in an improper
manner by evidence that Thompson had solicited the murder of David
Leitch.
Id., at 144-145, 753 P. 2d, at 74-75. Thompson
petitioned for rehearing, which the court denied in June 1988.
Thompson also filed a petition for certiorari with this Court,
which we denied. 488 U. S. 960 (1988).
Thompson filed his first state habeas petition, which the
California Supreme Court denied in March 1989. Thompson
545
filed a federal habeas petition in January 1990. The District
Court held Thompson's petition in abeyance while Thompson pursued
unexhausted claims in state court. In January 1991, the California
Supreme Court denied Thompson's second state habeas petition. In
February 1993, the California Supreme Court denied Thompson's third
state habeas petition.
In November 1993, the United States District Court for the
Central District of California held an evidentiary hearing on the
claims raised in Thompson's federal habeas petition. In an order
dated March 28, 1995, the District Court granted habeas relief as
to the rape conviction and rape special circumstance and denied
relief as to the murder conviction. In the District Court's view,
Thompson's trial attorney rendered ineffective assistance of
counsel as to the rape charge. The District Court cited two
failings by the attorney. First, the court held, counsel failed to
contest certain of the conclusions offered by the State's forensic
expert at trial. Second, the court determined, counsel should have
impeached the credibility of two jailhouse informants to a greater
extent than he did. In the District Court's view, these failings
prejudiced Thompson under the rule of
Strickland v.
Washington, 466 U. S. 668 (1984).
Having granted relief as to the rape special circumstance, the
District Court ruled Thompson's death sentence was invalid. As to
the murder conviction, the District Court rejected Thompson's claim
he had been prejudiced by what Thompson alleged were
inconsistencies between the prosecution's theories at his trial and
the later trial of David Leitch. Having read the transcripts of
both trials, the court found "the trials differed mainly in
emphasis." App. 71.
The timing of later federal proceedings is critical to the
issues we now resolve. On June 19, 1996, a unanimous three-judge
panel of the Court of Appeals reversed the District Court's grant
of habeas relief as to the rape conviction and rape special
circumstance, affirmed the denial of habeas
546
relief as to the murder conviction, and reinstated Thompson's
death sentence. Noting that "[t]he State presented strong evidence
of rape" at Thompson's trial,
109 F.3d
1358, 1365 (CA9 1997), the court held that, irrespective of
whether the performance of Thompson's counsel was deficient in the
manner Thompson alleged, Thompson could not demonstrate prejudice
under
Strickland.
On August 5, 1996, Thompson filed a petition for rehearing and
suggestion for rehearing en bane, which circulated to "each active
judge" of the court. See U. S. Court of Appeals for the Ninth
Circuit General Orders 5.4(a)(1), p. 30 (Aug. 1997). In an order
dated March 6, 1997, the original panel denied the petition and
rejected the suggestion, observing that "[t]he full court has been
advised of the suggestion for rehearing en bane and no judge in
active service has requested a vote to rehear the matter en bane."
App. 137. In the same order, the panel reissued its opinion in the
case with minor changes. Thompson filed a petition for certiorari
with this Court, which we denied on June 2, 1997. 520 U. S. 1259.
The Court of Appeals issued its mandate denying all habeas relief
in Thompson's case on June 11, 1997. In response, the State of
California scheduled Thompson's execution for August 5, 1997.
Thompson filed a fourth state habeas petition on July 3, 1997.
In it, he alleged David Leitch had stated in a parole hearing that
he had witnessed Thompson and Fleischli engaged in what appeared to
be consensual intercourse on the night of Fleischli's murder. The
California Supreme Court denied the petition on July 16, 1997.
On July 22, 1997, Thompson filed a motion with the Court of
Appeals to recall its mandate denying habeas relief. The following
day, Thompson filed a motion in United States District Court for
relief from judgment pursuant to Federal Rule of Civil Procedure
60(b). In support of both motions, Thompson cited Leitch's alleged
statement that he had seen Thompson and Fleischli engaged in
consensual sex.
547
The District Court denied Thompson's Rule 60(b) motion on July
25, 1997. The court construed the motion to be a successive
petition under 28 U. s. C. § 2244 as amended by AEDPA, ruling that
Thompson "must not be permitted to utilize a Rule 60(b) motion to
make an end-run around the requirements" of AEDPA. App. 170. The
court observed that the alleged new statement by Leitch conflicted
with Thompson's own account of the specifics of his encounter with
Fleischli, the physical evidence in the case, and the previous
stories told by Leitch himself. Thus, the court held, Thompson
"certainly cannot make the requisite showing that he is actually
innocent such that his execution would be a miscarriage of
justice."
Id., at 188.
The Court of Appeals denied Thompson's motion to recall the
mandate on July 28, 1997. Two days later, however, the full court
voted to consider en banc whether to recall its earlier mandate "to
consider whether the panel decision of our court would result in a
fundamental miscarriage of justice."
120 F.3d
1042, 1043. The court scheduled oral argument on this question
for August 1, 1997, four days before Thompson's scheduled
execution.
Meanwhile, on July 29, 1997, the Governor of California held a
hearing on whether to grant clemency to Thompson. In addition to
the arguments presented by Thompson's attorneys during the hearing,
the Governor reviewed "the materials submitted on [Thompson's]
behalf, the petition and letters signed by supporters of clemency,
the submissions of the Orange County District Attorney, the letters
of the trial judge concerning clemency," all the court opinions in
Thompson's case, and "the materials and recommendation provided to
[him] by the Board of Prison Terms." App. to Brief for Criminal
Justice Legal Foundation as
Amicus Curiae A-2 to A-3
(Decision of Governor Pete Wilson). In a comprehensive decision
dated July 31, 1997, the Governor found Thompson "ha[d] not
remotely approached making any" showing of innocence of rape or
murder.
Id., at A-16. The
548
Governor agreed with the view of the judge who presided over
Thompson's trial, that "it would be an absolute tragedy and a
travesty of justice to even seriously consider clemency in this
case."
Ibid. (internal quotation marks omitted). Clemency
was denied.
Two days before Thompson was to be executed, a divided en bane
panel of the Court of Appeals recalled the court's mandate of June
11, 1997. This action came 53 days after the mandate had issued and
almost a full year after Thompson had filed his suggestion for
rehearing en bane. The Court of Appeals asserted it did not recall
the mandate on the basis of Thompson's later motion for recall, but
did so
sua sponte, on the basis of the claims and evidence
presented in Thompson's first federal habeas petition. Thus, the
court said, its "recall of the mandate is not predicated on any new
evidence or claims Thompson raises in his motion to recall the
mandate."
120 F.3d
1045, 1049, n. 3. The court stated it had considered whether to
recall the mandate sooner, but had chosen to wait until the
conclusion of Thompson's statecourt proceedings before taking
action.
The court presented two bases for recalling its earlier mandate.
First, the court asserted that, absent certain "procedural
misunderstandings within [the] court," it would have called for en
bane review of the underlying decision before issuing the mandate
denying relief.
Id., at 1047. These procedural
misunderstandings included a mishandled law clerk transition in one
judge's chambers and the failure of another judge to notice that
the original panel had issued its opinion in the case.
Id.,
at 1067 (Kozinski, J., dissenting). Second, the en bane court
asserted the decision of the original panel "would lead to a
miscarriage of justice."
Id., at 1048.
Having recalled the mandate in Thompson's case, the en bane
court went on to address the merits of his first federal habeas
petition. The court held that Thompson's trial counsel had provided
ineffective assistance as to the rape charge
549
and rape special circumstance, to the defendant's prejudice. A
plurality of the court would have granted habeas relief on the
additional ground of inconsistent theories by the prosecution at
his trial and the later trial of David Leitch. The majority made no
effort to determine whether Thompson was actually innocent of the
rape and murder of Fleischli. The court nonetheless affirmed the
District Court's grant of the writ as to the rape conviction and
rape special circumstance, vacated Thompson's death sentence, and
further "remand[ed] the question of the murder conviction for [the
District Court's] initial consideration in light of our vacatur of
the rape conviction."
Id., at 1060. Thus, almost 16 years
after Fleischli's murder, the Ninth Circuit directed the District
Court to "enter the partial writ unless the State elects to retry
Thompson within a reasonable time."
Ibid.
Four judges dissented. Judge Hall argued the majority's decision
allowed Thompson to evade AEDPA's restrictions on successive
petitions.
Id., at 1064-1066. Judge Kozinski detailed the
circumstances which led the majority to find its en banc process
had malfunctioned. He asserted that, contrary to the majority's
conclusion, the court's en banc process "operated just as it's
supposed to."
Id., at 1067. In a third dissenting opinion,
Judge Kleinfeld recited in detail the evidence of Thompson's guilt
of rape.
Id., at 1073.
Within hours of the Court of Appeals' order recalling its
mandate, the State of California filed with this Court a second
petition for a writ of mandamus, which we construed as a petition
for certiorari. We granted the petition, 521 U. S. 1136 (1997), and
now reverse.
II
Although some Justices have expressed doubt on the point, see,
e. g.,
United States v.
Ohio Power Co.,
353 U. S. 98,
102103 (1957) (Harlan, J., dissenting), the courts of appeals are
recognized to have an inherent power to recall their mandates,
subject to review for an abuse of discretion.
Hawaii
550
Housing Authority v.
Midkiff, 463 U. S. 1323, 1324
(1983) (REHNQUIST, J., in chambers); see also
Hazel-Atlas Glass
Co. v.
Hartford-Empire Co., 322 U. S. 238, 249-250
(1944). In light of "the profound interests in repose" attaching to
the mandate of a court of appeals, however, the power can be
exercised only in extraordinary circumstances. 16 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure § 3938, p.
712 (2d ed. 1996). The sparing use of the power demonstrates it is
one of last resort, to be held in reserve against grave, unforeseen
contingencies.
The en banc majority asserted extraordinary circumstances
justified its order recalling the mandate in Thompson's case
because, "[b]ut for procedural misunderstandings by some judges of
this court, an en banc call would have been made and voted upon at
the ordinary time." 120 F. 3d, at 1048. As noted earlier, the
original panel issued its decision denying habeas relief on June
19, 1996, and Thompson filed a petition for rehearing and
suggestion for rehearing en banc on August 5,1996. On January
17,1997, the panel notified the full court of its intention to
reject the suggestion.
Id., at 1067 (Kozinski, J.,
dissenting). The panel reissued its earlier opinion with minor
revisions on March 6, 1997. In the March 6 order, the panel also
denied Thompson's petition for rehearing and rejected his
suggestion for rehearing en banco The panel observed that, although
the full court had been advised of Thompson's suggestion, no judge
in active service had requested a vote to rehear the case en banc
within the time specified in the General Orders of the Ninth
Circuit. App. 137.
It appears from Judge Kozinski's opinion that the following
events also transpired. On March 12, 1997, an off-panel judge wrote
to the panel, requesting an opportunity to make a belated call for
a vote to rehear the case en banco The judge stated that the
panel's decision had been "circulated shortly before a law clerk
transition" in the judge's chambers, and that "the old and new law
clerks assigned to the
551
case failed to communicate." 120 F. 3d, at 1067 (dissenting
opinion). Another judge seconded the request and asked:
"Was [the panel's January 17, 1997, notice of intention to
reject the suggestion for rehearing en banc] circulated? Did I miss
it?"
Ibid. The author of the panel opinion denied the
request for a belated en banc call, explaining that the requesting
judges had been notified two months earlier of the panel's
intention to reject Thompson's suggestion, id., at 1067-1068, which
itself had circulated to every active judge of the court on August
5, 1996.
The panel stayed the issuance of its mandate pending Thompson's
petition to this Court for certiorari review. We denied Thompson's
petition on June 2, 1997. 520 U. S. 1259. The Court of Appeals
issued its mandate on June 11, 1997. According to the en banc
majority, "[a] sua sponte request to consider en banc whether to
recall the mandate was made shortly thereafter, even before the
mandate was spread in the district court." 120 F. 3d, at 1049.
"[I]n the interests of comity," however, the court delayed further
action until the California Supreme Court had denied Thompson's
fourth state petition for habeas relief.
Ibid. It was not
until August 3, 1997-two days before Thompson was scheduled to be
executed-that the Ninth Circuit voted to recall its mandate.
Measured even by standards of general application, the Court of
Appeals' decision to recall the mandate rests on the most doubtful
of grounds. A mishandled law clerk transition in one judge's
chambers, and the failure of another judge to notice the action
proposed by the original panel, constitute the slightest of bases
for setting aside the "deep rooted policy in favor of the repose of
judgments."
Hazel-Atlas Glass Co., supra, at 244. This is
especially true where the only consequence of the oversights was
the failure of two judges to contribute their views to a
determination that had been given full consideration on the merits
by a panel of the court.
552
Even if the Ninth Circuit's en banc process did somehow
malfunction-which is itself open to question, see 120 F. 3d, at
1067 (Kozinski, J., dissenting) ("[T]he process operated just as
it's supposed to")-the court only compounded its error when it
delayed further action for more than four months after the alleged
misunderstandings took place. The promptness with which a court
acts to correct its mistakes is evidence of the adequacy of its
grounds for reopening the case. In this case, the two judges first
revealed their oversights to the full court in March 1997. At that
point the two judges remained free to "request that the [full]
court vote to suspend" its time limits for voting to rehear the
case en banco See Ninth Circuit General Orders 11.11, at 83. They
chose not to do so, instead waiting another four months to make
what was, in effect, an identical request. The Court of Appeals for
all practical purposes lay in wait while this Court acted on the
petition for certiorari, the State scheduled a firm execution date
for Thompson, and the Governor conducted an exhaustive clemency
review. Then, only two days before Thompson was scheduled to be
executed, the court came forward to recall the judgment on which
the State, not to mention this Court, had placed heavy
reliance.
It is no answer for the Court of Appeals to assert it delayed
action in the interests of comity. Comity is not limited to the
judicial branch of a state government. In this case, the executive
branch of California's government took extensive action in reliance
on the mandate denying relief to Thompson. Rather than focus only
on the California Supreme Court's interest in considering
Thompson's fourth (and, as could be predicted, meritless) state
habeas petition, the Court of Appeals should have considered as
well the more vital interests of California's executive branch.
It would be the rarest of cases where the negligence of two
judges in expressing their views is sufficient grounds to frustrate
the interests of a State of some 32 million persons in enforcing a
final judgment in its favor. Even if this were
553
a case implicating no more than ordinary concerns of finality,
we would have grave doubts about the actions taken by the Court of
Appeals.
III
Thompson's is not an ordinary case, however, because he seeks
relief from a criminal judgment entered in state court. To decide
whether the Court of Appeals' order recalling the mandate was
proper in these circumstances, we measure it not only against
standards of general application, but also against the statutory
and jurisprudential limits applicable in habeas corpus cases.
A
California argues the Court of Appeals' recall of its mandate
was barred by 28 U. S. C. § 2244(b) (1994 ed., Supp. II) as amended
by AEDPA. Section 2244(b)(1) provides: "A claim presented in a
second or successive habeas corpus application under section 2254
that was presented in a prior application shall be dismissed."
Subsection 2244(b)(2) provides: "A claim presented in a second or
successive application under section 2254 that was not presented in
a prior application shall be dismissed" unless a narrow exception
applies. The immediate question is whether the Court of Appeals
recalled its mandate on the basis of a "second or successive
application" for habeas relief.
In a § 2254 case, a prisoner's motion to recall the mandate on
the basis of the merits of the underlying decision can be regarded
as a second or successive application for purposes of § 2244(b).
Otherwise, petitioners could evade the bar against relitigation of
claims presented in a prior application, § 2244(b)(1), or the bar
against litigation of claims not presented in a prior application,
§ 2244(b)(2). If the court grants such a motion, its action is
subject to AEDPA irrespective of whether the motion is based on old
claims (in which case § 2244(b)(1) would apply) or new ones (in
which case § 2244(b)(2) would apply).
554
As a textual matter, § 2244(b) applies only where the court acts
pursuant to a prisoner's "application." This carries implications
for cases where a motion to recall the mandate is pending, but the
court instead recalls the mandate on its own initiative. Whether
these cases are subject to § 2244(b) depends on the underlying
basis of the court's action. If, in recalling the mandate, the
court considers new claims or evidence presented in a successive
application for habeas relief, it is proper to regard the court's
action as based on that application. In these cases, § 2244(b)(2)
applies irrespective of whether the court characterizes the action
as
sua sponte.
In Thompson's case, however, the Court of Appeals was specific
in reciting that it acted on the exclusive basis of Thompson's
first federal habeas petition. The court's characterization of its
action as
sua sponte does not, of course, prove this point;
had the court considered claims or evidence presented in Thompson's
later filings, its action would have been based on a successive
application, and so would be subject to § 2244(b). But in
Thompson's case the court's recitation that it acted on the
exclusive basis of his first federal petition is not disproved by
consideration of matters presented in a later filing. Thus we deem
the court to have acted on his first application rather than a
successive one. As a result, the court's order recalling its
mandate did not contravene the letter of AEDPA.
Although the terms of AEDPA do not govern this case, a court of
appeals must exercise its discretion in a manner consistent with
the objects of the statute. In a habeas case, moreover, the court
must be guided by the general principles underlying our habeas
corpus jurisprudence. We now consider those principles as applied
to this case.
B
In light of "the profound societal costs that attend the
exercise of habeas jurisdiction,"
Smith v.
Murray,
477 U. S. 527,
539 (1986), we have found it necessary to impose signifi-
555
cant limits on the discretion of federal courts to grant habeas
relief. See,
e. g., McCleskey v.
Zant, 499 U. S. 467, 487 (1991)
(limiting "a district court's discretion to entertain abusive
petitions");
Wainwright v.
Sykes, 433 U. S. 72, 90-91 (1977)
(limiting courts' discretion to entertain procedurally defaulted
claims);
Teague v.
Lane, 489 U. S. 288, 308-310
(1989) (plurality opinion of O'CONNOR, J.) (limiting courts'
discretion to give retroactive application to "new rules" in habeas
cases);
Brecht v.
Abrahamson, 507 U. S. 619, 637-638
(1993) (limiting courts' discretion to grant habeas relief on the
basis of "trial error").
These limits reflect our enduring respect for "the State's
interest in the finality of convictions that have survived direct
review within the state court system."
Id., at 635; accord,
Wood v.
Bartholomew, 516 U. S. 1, 8 (1995)
(per curiam); Sawyer v.
Whitley, 505 U. S. 333, 338
(1992);
Keeney v.
Tamayo-Reyes, 504 U. S. 1, 7 (1992);
McCleskey, supra, at 491-492;
Teague, supra, at 309;
Murray v.
Carrier, 477 U. S. 478,487 (1986);
Engle v.
Isaac, 456 U. S. 107, 127
(1982). Finality is essential to both the retributive and the
deterrent functions of criminal law. "Neither innocence nor just
punishment can be vindicated until the final judgment is known."
McCleskey, supra, at 491. "Without finality, the criminal
law is deprived of much of its deterrent effect."
Teague,
supra, at 309.
Finality also enhances the quality of judging. There is perhaps
"nothing more subversive of a judge's sense of responsibility, of
the inner subjective conscientiousness which is so essential a part
of the difficult and subtle art of judging well, than an
indiscriminate acceptance of the notion that all the shots will
always be called by someone else." Bator, Finality in Criminal Law
and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev.
441, 451 (1963).
Finality serves as well to preserve the federal balance.
Federal habeas review of state convictions frustrates" 'both the
States' sovereign power to punish offenders and their
556
good-faith attempts to honor constitutional rights.'"
Murray v.
Carrier, supra, at 487 (quoting
Engle,
supra, at 128). "Our federal system recognizes the independent
power of a State to articulate societal norms through criminal law;
but the power of a State to pass laws means little if the State
cannot enforce them."
McCleskey, 499 U. S., at 491.
A State's interests in finality are compelling when a federal
court of appeals issues a mandate denying federal habeas relief. At
that point, having in all likelihood borne for years "the
significant costs of federal habeas review," id., at 490-491, the
State is entitled to the assurance of finality. When lengthy
federal proceedings have run their course and a mandate denying
relief has issued, finality acquires an added moral dimension. Only
with an assurance of real finality can the State execute its moral
judgment in a case. Only with real finality can the victims of
crime move forward knowing the moral judgment will be carried out.
See generally
Payne v.
Tennessee, 501 U. S. 808 (1991). To
unsettle these expectations is to inflict a profound injury to the
"powerful and legitimate interest in punishing the guilty,"
Herrera v.
Collins, 506 U. S. 390, 421 (1993)
(O'CONNOR, J., concurring), an interest shared by the State and the
victims of crime alike.
This case well illustrates the extraordinary costs associated
with a federal court of appeals' recall of its mandate denying
federal habeas relief. By July 31, 1997, to vindicate the laws
enacted by the legislature of the State of California, a jury had
convicted Thompson of rape and murder and recommended that he be
executed; the trial judge had imposed a sentence of death; the
California Supreme Court had affirmed Thompson's sentence and on
four occasions refused to disturb it on collateral attack; and, in
a comprehensive and public decision, the Governor had determined
the sentence was just. Relying upon the mandate denying habeas
relief to Thompson, the State of California had invoked its entire
legal and moral authority in support of executing its judg-
557
ment. Yet, after almost 13 years of state and federal review of
Thompson's conviction and sentence, almost one year after Thompson
filed his petition for rehearing and suggestion for rehearing en
banc, a full 53 days after issuance of the mandate denying relief,
and a mere two days before Thompson was scheduled to be executed,
the Ninth Circuit recalled its mandate and granted the writ of
habeas corpus. The costs imposed by these actions are as severe as
any that can be imposed in federal habeas review.
We should be clear about the circumstances we address in this
case. We deal not with the recall of a mandate to correct mere
clerical errors in the judgment itself, similar to those described
in Federal Rule of Criminal Procedure 36 or Federal Rule of Civil
Procedure 60(a). The State can have little interest, based on
reliance or other grounds, in preserving a mandate not in
accordance with the actual decision rendered by the court. This
also is not a case of fraud upon the court, calling into question
the very legitimacy of the judgment. See
Hazel-Atlas Glass
Co. v.
Hartford-Empire Co.,
322 U. S. 238 (1944). Nor
is this a case where the mandate is stayed under Federal Rule of
Appellate Procedure 41 pending the court's disposition of a
suggestion for rehearing en banco
Rather, we are concerned with cases where, as here, a court of
appeals recalls its mandate to revisit the merits of its earlier
decision denying habeas relief. In these cases, the State's
interests in finality are all but paramount, without regard to
whether the court of appeals predicates the recall on a procedural
misunderstanding or some other irregularity occurring prior to its
decision. The prisoner has already had extensive review of his
claims in federal and state courts. In the absence of a strong
showing of "actua[l] innocen[ce],"
Murray v.
Carrier,
supra, at 496, the State's interests in actual finality
outweigh the prisoner's interest in obtaining yet another
opportunity for review.
558
Based on these considerations, we hold the general rule to be
that, where a federal court of appeals
sua sponte recalls
its mandate to revisit the merits of an earlier decision denying
habeas corpus relief to a state prisoner, the court abuses its
discretion unless it acts to avoid a miscarriage of justice as
defined by our habeas corpus jurisprudence. The rule accommodates
the need to allow courts to remedy actual injustice while
recognizing that, at some point, the State must be allowed to
exercise its "'sovereign power to punish offenders.'"
McCleskey,
supra, at 491 (quoting
Murray v.
Carrier, 477 U.
S., at 487).
This standard comports with the values and purposes underlying
AEDPA. Although AEDPA does not govern this case, see
supra,
at 554, its provisions "certainly inform our consideration" of
whether the Court of Appeals abused its discretion.
Felker
v.
Turpin, 518
U. S. 651, 663 (1996). Section 2244(b) of the statute is
grounded in respect for the finality of criminal judgments. With
the exception of claims based on new rules of constitutional law
made retroactive by this Court, see § 2244(b)(2)(A), a federal
court can consider a claim presented in a second or successive
application only if the prisoner shows, among other things, that
the facts underlying the claim establish his innocence by clear and
convincing evidence. See § 2244(b)(2)(B). It is true that the
miscarriage of justice standard we adopt today is somewhat more
lenient than the standard in § 2244(b)(2)(B). See,
e. g., §
2244(b)(2)(B)(i) (factual predicate for claim must "not have been
discover[able] previously through the exercise of due diligence").
The miscarriage of justice standard is altogether consistent,
however, with AEDPA's central concern that the merits of concluded
criminal proceedings not be revisited in the absence of a strong
showing of actual innocence. And, of course, the rules applicable
in all cases where the court recalls its mandate, see
supra,
at 549-553, further ensure the practice is limited to the most rare
and extraordinary case.
559
Like other standards applicable in habeas cases, moreover, the
miscarriage of justice standard is objective in content, "[w]ell
defined in the case law," and "familiar to federal courts."
McCleskey, 499 U. S., at 496. It is indeed the standard the
Ninth Circuit determined to apply in voting to consider en bane
whether to recall the mandate in Thompson's case. See App. 194
(Order of July 30, 1997) ("The full court has voted to consider
whether to recall the mandate to consider whether the panel
decision of our court would result in a fundamental miscarriage of
justice"). Hence the standard is not only a just but also " 'a
sound and workable means of channeling the discretion of federal
habeas courts.'"
McCleskey, supra, at 496 (quoting
Murray v.
Carrier, supra, at 497).
We now determine whether this standard was met in Thompson's
case.
C
"[T]he miscarriage of justice exception is concerned with actual
as compared to legal innocence."
Sawyer, 505 U. S., at 339.
We have often emphasized "the narrow scope" of the exception.
Id., at 340; accord,
Harris v.
Reed, 489 U. S. 255, 271 (1989)
(O'CONNOR, J., concurring) ("narrow exception" for the
"'extraordinary case' "). "To be credible," a claim of actual
innocence must be based on reliable evidence not presented at
trial.
Schlup v.
Delo, 513 U. S. 298, 324
(1995). Given the rarity of such evidence, "in virtually every
case, the allegation of actual innocence has been summarily
rejected."
Ibid. (internal quotation marks omitted).
Although demanding in all cases, the precise scope of the
miscarriage of justice exception depends on the nature of the
challenge brought by the habeas petitioner. If the petitioner
asserts his actual innocence of the underlying crime, he must show
"it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence" presented in his habeas
petition.
Id., at 327. If, on the other hand, a capital
petitioner challenges his death sentence
560
in particular, he must show "by clear and convincing evidence"
that no reasonable juror would have found him eligible for the
death penalty in light of the new evidence.
Sawyer, supra,
at 348.
The
Sawyer standard has a broader application than is at
first apparent. As the Court explained in
Schlup, when a
capital petitioner challenges his underlying capital murder
conviction on the basis of an element that "function[s] essentially
as a sentence enhancer," the
Sawyer "clear and convincing"
standard applies to the claim.
Schlup, supra, at 326. Thus,
to the extent a capital petitioner claims he did not kill the
victim, the
Schlup "more likely than not" standard applies.
To the extent a capital petitioner contests the special
circumstances rendering him eligible for the death penalty, the
Sawyer "clear and convincing" standard applies, irrespective
of whether the special circumstances are elements of the offense of
capital murder or, as here, mere sentencing enhancers.
A claim like Thompson's could present some difficulty concerning
whether to apply
Schlup or
Sawyer. Thompson makes no
appreciable effort to assert his innocence of Fleischli's murder.
Instead, he challenges, first, his rape conviction, and second, the
jury's finding of the special circumstance of rape. The former
challenge is subject to the
Schlup "more likely than not"
standard; the latter challenge is subject to the
Sawyer
"clear and convincing" standard. In theory, then, it would be
possible to vacate Thompson's stand-alone conviction of rape but to
let stand his conviction of murder and sentence of death. This
anomaly perhaps reflects some tension between
Sawyer and the
later decided
Schlup. The anomaly need not detain us,
however, for Thompson's claims fail under either standard.
At trial, the prosecution presented ample evidence to show
Thompson committed the rape. A vaginal swab of Fleischli's body
revealed semen consistent with Thompson's blood type. App. 109. In
addition, there was extensive evidence
561
of restraint consistent with rape. Dr. Robert Richards, a
pathologist who performed the autopsy on Fleischli and testified
for the prosecution at trial, stated that, at or near the time of
death, Fleischli suffered a crushing injury to her right wrist with
surrounding bruising.
Id., at 9. Deputy Darryl Coder, who in
his 23 years as a law enforcement officer had seen "hundreds" of
handcuff injuries, testified the injury to Fleischli's right wrist
was consistent with injuries caused by handcuffs, a pair of which
were in Thompson's possession when he was arrested in Mexico.
Id., at 13, n. 9. Dr. Richards further testified that
Fleischli had other bruises on her ankles, palms, left elbow, and
left wrist, all of which were caused at or near the time of death.
Id., at 9, 10 Record 1619. Fleischli's shirt and bra had
been cut down the middle and pulled down to her elbows, exposing
her breasts and restraining her arms. App. 7, 109. Fleischli's
mouth had been gagged with duct tape. 9 Record 1505, 11 id., at
1772.
There was further evidence of rape. As Judge Kleinfeld noted in
dissent, "Fleischli was murdered by Thompson, a fate more frequent
among rape victims than friendly sex partners." 120 F. 3d, at 1073.
Two jailhouse informants, though discredited to a substantial
extent at trial, testified that Thompson had confessed the rape (as
well as the murder) to them.
As the District Court observed, moreover, Thompson's own
testimony "was devastating to his defense." App. 51. Contrary to
the emphatic advice of trial counsel, Thompson chose to testify.
The result was by all accounts a disaster for his claim that he did
not rape or murder Fleischli. The prosecution got Thompson to admit
he lied to police after his arrest, when he denied having sex with
Fleischli. He also admitted having lied to police about Fleischli's
whereabouts the night of the murder, telling them she had left his
apartment with Kashani. When asked about this lie, Thompson
replied, "Mr. Kashani seemed as likely a candidate [as] any-
562
body at that time." 18 Record 2378. He then presented his most
recent, and perhaps most fantastic, account of the events of the
night of the murder. Thompson testified that, after having
consensual sex with Fleischli, he fell asleep and remained asleep
while, not more than six feet away, someone else stabbed Fleischli
five times in the head, wrapped her head and body with duct tape,
two towels, a sheet, her jacket, a sleeping bag, and a rope, moved
her body from the apartment, and scrubbed the carpet to remove her
blood. The District Court found Thompson's testimony "was riddled
with inconsistencies and outright falsehoods." App. 51. The
District Court further stated: "Thompson's testimony no doubt
affected the jury's verdict."
Id., at 51. The point is
beyond dispute; since Thompson lied about almost every other
material aspect of the case, the jury had good reason to believe he
lied about whether the sex was consensual.
Thompson presents little evidence to undermine the evidence
presented at trial. The en banc court based its decision only on
the claims and evidence presented in Thompson's first petition for
federal habeas relief. Had it considered the additional evidence or
claims presented in Thompson's motion to recall the mandate, of
course, its decision would have been subject to § 2244(b). See
supra, at 554. Hence the record of Thompson's first federal
habeas petition will govern whether he has demonstrated actual
innocence of rape.
The evidence in Thompson's petition falls into two categories.
First, Thompson presented additional evidence to impeach the
credibility of Fink and Del Frate, the jailhouse informants who
testified Thompson confessed the rape and murder to them. In the
case of Fink, Thompson presented additional evidence of Fink's
history as an informant and of law enforcement favors for Fink.
Thompson also presented statements by law enforcement officials to
the effect that Fink was an unreliable witness. In the case of Del
Frate, Thompson presented evidence that law enforcement
officials
563
and certain members of Del Frate's family regarded Del Frate as
dishonest, that Del Frate shared a jail cell with David Leitch
prior to meeting Thompson, that Del Frate's statements to police
tracked newspaper accounts of the crime, and that Del Frate
neglected to mention at trial his prior convictions for grand theft
and distribution of hallucinogens without a license.
This impeachment evidence provides no basis for finding a
miscarriage of justice. As in
Sawyer, the evidence is a step
removed from evidence pertaining to the crime itself. 505 U. S., at
348. It tends only to impeach the credibility of Fink and Del
Frate. To find that these matters in all probability would have
altered the outcome of Thompson's trial, we should have to assume,
first, that there was little evidence of rape apart from the
informant's testimony; and second, that the jury accepted the
informants' testimony without reservation. The former assumption is
belied by the evidence recited above. The latter one is belied by
the substantial impeachment evidence Thompson's attorney did
introduce.
With regard to Fink, Thompson's trial counsel presented the
following evidence: Fink had four prior felony convictions and had
spent a total of 14 years in prison at the time of trial. He used
heroin on a frequent basis during the 15 years preceding trial,
including the period in which he gave his statement to police. He
lied about his identity as a matter of routine. He acted as an
informant on numerous other occasions, including one occasion where
he informed on another inmate to gain protective custody in prison.
He requested and received a transfer to another penal facility in
exchange for his statement against Thompson. And he admitted being
unable to explain why criminals confessed to him with such
frequency.
With regard to Del Frate, Thompson's trial counsel presented the
following evidence: Del Frate had served time for second-degree
murder and credit card forgery. At the time
564
of trial, Del Frate faced felony charges in Ohio and California.
Del Frate admitted claiming another murderer confessed to him
during the period in which Thompson confessed to him. He also
admitted changing his account of Thompson's confession to him
numerous times. Given the trial evidence impeaching each informant,
we would disrespect the jury in Thompson's case if we were to find
that, had it been presented with still more impeachment evidence,
it would have reached a different verdict.
In support of his first federal habeas petition, Thompson also
presented the opinions of Dr. Irving Root, a pathologist who
testified on Thompson's behalf during the evidentiary hearing in
Federal District Court. Dr. Root disputed certain of the opinions
offered by Dr. Richards and Deputy Coder at trial. First, Dr. Root
disagreed with Deputy Coder's conclusion that the crushing injury
to Fleischli's left wrist was caused by handcuffs. Dr. Root stated
the injury was unlike handcuff injuries he had seen on other
corpses. 1 Tr. 52-54, 62-63 (Aug. 5, 1997). He did not, however,
offer any alternative explanation as to how the injury might have
been caused. Second, Dr. Root disputed Dr. Richards' conclusions
regarding the bruises on Fleischli's body. Dr. Root opined the
bruises to Fleischli's ankles and left wrist were caused at least
11 hours before death.
Id., at 47-50. He further stated the
bruises to Fleischli's palms were the result of lividity, i.
e., the settling of blood by gravity after death.
Id., at 48. Third, Dr. Root noted there had been
"infrequent" sperm on the vaginal swab of Fleischli's body.
Id., at 63. Dr. Root suggested this finding could be the
result of low sperm count for the male, or douching or drainage
after intercourse.
Ibid. He further suggested the other
evidence in the case ruled out the possibility of drainage.
Id., at 63-64. He did not, however, opine as to whether low
sperm count or douching was the more probable of the remaining
possibilities. Finally, Dr. Root summarized his tes-
565
timony by agreeing "there was remarkably little in the way of
trauma to the decedent's body."
Id., at 52.
Dr. Root's testimony provides no occasion for disturbing the
findings of the jury in Thompson's case. His testimony that the
crushing injury to Fleischli's wrist was not caused by handcuffs is
far from compelling, given Deputy Coder's extensive experience with
handcuff injuries (albeit with living persons) and Dr. Root's
failure to offer any alternative explanation as to how the crushing
injury might have occurred. His testimony that the other bruises to
Fleischli's body were caused well before death is more plausible.
Unlike Dr. Richards, however, Dr. Root based his conclusions not on
his own examination of the body, but on his review of the record of
Dr. Richards' examination. See id., at 70. It is improbable,
moreover, that Fleischli had been walking about with bruises all
over her body, without any witness having noticed her condition in
the days and hours before Thompson murdered her. As for the
infrequent sperm on the vaginal swab, Dr. Root himself suggested
the cause might have been low sperm count for the male, a
possibility consistent with rape.
Id., at 63. Finally, Dr.
Root's assessment of the overall trauma to the body was to a large
extent consistent with Dr. Richards' testimony at trial. For
instance, Dr. Richards testified there was no evidence of vaginal
tearing or bruising in Fleischli's case, though he indicated (and
Dr. Root did not dispute) there was no such evidence in the
majority of rape cases. 10 Record 1629. As Dr. Root himself
acknowledged, his conclusion that there was "remarkably little"
trauma to Fleischli's body was lifted verbatim from Dr. Richards'
own autopsy report in Fleischli's case. 1 Tr. 52 (Aug. 5,
1997).
To say that no reasonable juror would have convicted Thompson of
rape if presented with Dr. Root's testimony, then, we would have to
ignore the totality of evidence of Thompson's guilt. This we cannot
do.
566
In conclusion, Thompson's evidence does not meet the "more
likely than not" showing necessary to vacate his stand-alone
conviction of rape, much less the "clear and convincing" showing
necessary to vacate his sentence of death. The judgment of the
State of California will not result in a miscarriage of justice.
The Court of Appeals abused its discretion in holding the
contrary.
IV
The judgment of the Court of Appeals is reversed, and the case
is remanded with instructions to reinstate the June 11, 1997,
mandate denying habeas relief to Thompson.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
Like the majority, I accept the representation of the Court of
Appeals that it was acting
sua sponte in its decision to
recall its previous mandate on August 3, 1997, a position supported
by the record. On July 28, 1997, the panel denied respondent's
motion to recall the mandate, which was an effort to seek whatever
advantage he might obtain from newly discovered evidence, and
during the en banc rehearing ultimately granted the court
considered nothing beyond the record presented in respondent's
first
habeas corpus proceeding.
Even on my assumption that the Court of Appeals acted on its own
and in the interest of the integrity of its appellate process,
however, the timing of its actions is a matter for regret. The
court has indicated that it chose to initiate consideration of a
recall
sua sponte shortly after this Court denied certiorari
to review the appeals court's first judgment on June 2, 1997,
109 F.3d
1358 (CA9), cert. denied, 520 U. S. 1259 (1997), but chose to
take no immediate action in the interest of comity as between the
state and federal systems.
567
The Court of Appeals accordingly refrained from acting on the
merits until after the state courts had adjudicated a fourth state
postconviction claim, the Governor of California had undertaken a
comprehensive review of the case and had denied clemency, and the
State had scheduled respondent's execution. As a consequence, the
concern for comity that motivated the court came to look like hope
that a state decisionmaker would somehow obviate the federal
court's need to advertise its own mistakes and take corrective
action.
But as unfortunate as the Court of Appeals's timing may have
been, that is not the ground on which the majority reverses the
judgment entered on the en banc rehearing. In rejecting the
conclusion of the en banc court, the Court applies a new and
erroneous standard to review the recall of the mandate, and I
respectfully dissent from its mistaken conclusion.
Like the majority, I begin with the longstanding view that a
court's authority to recall a mandate in order to correct error is
inherent in the judicial power,
ante, at 549-550 (citing
Hawaii Housing Authority v.
Midkiff, 463 U. S. 1323, 1324
(1983) (REHNQUIST, J., in chambers);
Hazel-Atlas Glass Co.
v.
Hartford-Empire Co., 322 U. S. 238, 249-250
(1944)), and subject to review only for abuse of discretion,
ante, at 549. Although we have had no occasion to discuss
the abuse standard as applied to actions of a court of appeals as
distinct from those of a trial court, there is no reason to suppose
the criterion should be affected merely because it is an appellate
court that has exercised the discretionary power to act in the
first instance. It is true, of course, that the variety of subjects
left to discretionary decision requires caution in synthesizing
abuse of discretion cases. See Friendly, Indiscretion About
Discretion, 31 Emory L. J. 747, 762-764 (1982); Rosenberg, Judicial
Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.
Rev. 635, 650-653 (1971). At the least, however, one can say that a
high degree of deference to the court exercising discretionary
authority is the
568
hallmark of such review.
General Electric Co. v.
Joiner, 522 U.
S. 136, 143-147 (1997);
National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U. S. 639, 642 (1976)
(per curiam). Thus, in such a case as this one, deference
may be accorded to any reasonable selection of factors as relevant
to the exercise of a court's discretion (since the determination to
recall is one for which criteria of decision have not become
standardized), see
United States v.
Criden, 648 F.2d
814, 818 (CA3 1981), and to the weighing of these factors in
light of the particular facts, see
Lawson Prods., Inc. v.
Avnet, Inc., 782 F.2d
1429, 1437 (CA7 1986); 1 S. Childress & M. Davis, Federal
Standards of Review §4.21, p. 4-163 (2d ed. 1992) ("It could be
said, then, that in run-of-the-mill discretionary calls, review
applies differently by the context, facts, and factors, but that
many times the actual level of deference boils down to one similar
to that used for the clearly erroneous rule. As a general
proposition, then, abuse of discretion deference is closer to a
clear error test than to the jury review test of irrationality");
cf.
Citizens to Preserve Overton Park, Inc. v.
Volpe,
401 U. S. 402,
416 (1971) (explaining the standard of review under 5 U. S. C. §
706(2)(A), which requires agencies to make choices that are not
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law");
ibid. ("To make thee] finding
[required under § 706(2)(A)] the court must consider whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment"). The obligation
of deference is only underscored here by the fact that the reason
for the recall was to consider an en banc rehearing, a matter of
administration for the Courts of Appeals on which this Court has
been careful to avoid intrusion, see
Western Pacific Railroad
Case, 345 U. S.
247, 259, and
The factors underlying the action of the Court of Appeals in
this case were wholly appropriate, the court's stated justi-
569
fication having been to exercise extreme care to counter the
malfunction of its own procedural mechanisms where the result
otherwise might well be a constitutionally erroneous imposition of
the death penalty. Indeed, the only serious question raised about
the validity of such considerations goes to the legitimacy of
employing en banc rehearings to correct a panel's error in the
application of settled law. See
120 F.3d
1045, 1069-1070 (CA9 1997) (Kozinski, J., dissenting). But
however true it is that the en banc rehearing process cannot
effectively function to review every three-judge panel that
arguably goes astray in a particular case, surely it is nonetheless
reasonable to resort to en banc correction that may be necessary to
avoid a constitutional error standing between a life sentence and
an execution. It is, after all, axiomatic that this Court cannot
devote itself to error correction, and yet in death cases the
exercise of our discretionary review for just this purpose may be
warranted. See
Ky les v.
Whitley, 514 U. S. 419, 422
(1995);
id., at 455 (STEVENS, J., concurring).
To be sure, there lurks in the background the faint specters of
overuse and misuse of the recall power. All would agree that the
power to recall a mandate must be reserved for "exceptional
circumstances," 120 F. 3d, at 1048; 16 C. Wright, A. Miller, &
E. Cooper, Federal Practice and Procedure § 3938, pp. 716-717, n.
14 (1996) (citing cases from the various Courts of Appeals
recognizing that the power must be used sparingly), in the
interests of stable adjudication and judicial administrative
efficiency, on which growing caseloads place a growing premium. All
would agree, too, that the
sua sponte recall of mandates
could not be condoned as a mechanism to frustrate the limitations
on second and successive habeas petitions, see,
e. g., 28 U.
S. C. § 2244(b).1 If
1 The Ninth Circuit itself seems to recognize that a motion to
recall the mandate filed by a petitioner subsequent to a previous
request for federal habeas relief is analogous to a second or
successive petition that is sub-
570
there were reason to suppose that the
sua sponte recall
would be overused or abused in either respect, we might well see
its use as unreasonable in a given case simply to deter resort to
it in too many cases. But as matters stand, we have no reason for
such fears and no reason to circumscribe the Court of Appeals's
response to its otherwise legitimate concerns. If history should
show us up as too optimistic, we will have every occasion to
revisit the issue.
Going from the legitimacy of the Court of Appeals's concerns to
the reasonableness of invoking them on the facts here, I need
mention only two points. The first arises on the question whether
administrative mistakes in the chambers of only two judges could be
seen as causing what the court saw as the threatened miscarriage of
justice in permitting the execution of someone who was ineligible
for death; two failures to vote for en bane review are not the
cause of a miscarriage when the vote against such review is
otherwise unanimous. Such at least is the math. But anyone who has
ever sat on a bench with other judges knows that judges are
supposed to influence each other, and they do. One may see
something the others did not see, and then they all take another
look. So it was reasonable here for the en bane court to believe
that when only two judges mistakenly failed to vote for en bane
rehearing, their misunderstandings could well have affected the
result.
The only remaining bar to the application of the appeals court's
policies to the facts of this case is said to be that the en bane
court was mistaken in thinking the panel had committed error when
it reversed the trial court's conclusion that ineffective
assistance of counsel in the rape case had been prejudicial within
the meaning of
Strickland v.
Washington, 466 U. S. 668, 693-694
(1984). But whether the en bane majority was correct on this
question of law and fact is
ject to the constraints of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). See,
e. g.,
Nevius v.
Sumner, 105 F.3d
453, 461 (CA91996).
571
not the issue here. The issue on abuse-of-discretion review is
simply whether those voting to recall the mandate to allow en bane
review could reasonably have thought the earlier panel had been
mistaken, and the conclusions of the District Court suffice to
answer yes to that question. See
Thompson v.
Calderon, Civ. No. 89-3630-RG (CD Cal., Mar. 29, 1995),
reprinted at App. 14-16. The ultimate merit of either court's
answer to the underlying question is not the touchstone of
abuse-of-discretion review, see
National Hockey League, 427
U. S., at 642 (under abuse-of-discretion review, the relevant
question is not whether the reviewing court would have reached the
same result), and here we review only for abuse, not the merits of
the underlying case (the question whether prejudice should be found
on the record of this case not warranting review).2
The majority, of course, adhere to the terminology of abuse of
discretion in reversing the Ninth Circuit. But it is abuse of
discretion "informed by" the 1996 amendments to the habeas corpus
statute enacted by certain provisions of AEDPA, Pub. L. 104-132,
110 Stat. 1217,
ante, at 558; see
Felker v.
Turpin, 518 U.
S. 651 (1996), and as so informed the abuse-of-discretion
standard is beyond recognition. That aside, the Court's
reformulation is as unwarranted on the Court's own terms as it is
by the terms of AEDPA.
2 Abuse-of-discretion review of the likelihood of a miscarriage
of justice is analogous to the abuse-of-discretion review of Rule
11 sanctions for frivolous filings. In that context, we held that
reviewing courts should defer to district courts' conclusions about
substantial legal justification.
Cooter &
Gell v.
Hartmarx Corp., 496 U. S. 384, 401-405
(1990). In the present circumstances, where the subject of our
review for an abuse of discretion is an appellate court's
conclusion that a threatened miscarriage of justice is sufficient
to justify recalling the mandate, I believe that we similarly must
give some deference to the Court of Appeals's preliminary analysis
that there may have been a misapplication of a legal standard, even
though we would not defer to it if we were addressing the ultimate
question on the merits, whether a trial court had committed legal
error.
572
Why AEDPA is thought to counsel review of recalls of mandates
under anything but the traditional abuse-ofdiscretion standard is
unexplained by anything in the majority opinion. The majority, like
me, accepts the Court of Appeals's position that it was not
covertly allowing respondent to litigate a second habeas petition;
the majority assumes that the Ninth Circuit was acting on its own
motion to recall the mandate, in order to allow reconsideration of
the first habeas petition.
Ante, at 554. On these
assumptions, AEDPA has no application to the issue before us.
Nothing in AEDPA speaks to the courts of appeals' inherent power to
recall a mandate, as such, and so long as the power over mandates
is not abused to enable prisoners to litigate otherwise forbidden
"second or successive" habeas petitions, see 28 U. S. C. § 2244(b),
AEDPA is not violated.
Nor are the policies embodied in AEDPA served by today's
novelty. Section 2244(b) provides that if a claim raised in a
second or successive petition was presented in a prior application,
it shall be dismissed. I suppose that if the claim under en banc
review were to bear analogy to anything covered by AEDPA, it would
be to the previously raised claim covered by subsection (b)(l),
since the claim reviewed en banc was the actual claim previously
reviewed by the panel. And yet the majority does not draw any such
analogy and does not dismiss on this basis. Subsection (b)(2)
provides that when a second or successive petition raises a claim
not previously presented, it too shall be dismissed unless based on
a new and retroactive rule of constitutional law, § 2244(b)(2)(A),
or based on previously undiscoverable evidence that would show to a
clear and convincing degree that no reasonable factfinder would
have convicted, considering all the evidence, had it not been for
constitutional error, § 2244(b)(2)(B). Here, again, the majority
fails to draw any analogy, for if reconsideration of a claim after
sua sponte recall were thought to resemble a claim mentioned
in subsection (b)(2), the majority would presumably require more
than
573
it does today. In fact, the majority goes no further than to
call for a showing of actual innocence sufficient for relief under
our earlier cases,
ante, at 557; yet as the Court realizes,
our standard dealing with innocence of an underlying offense
requires no clear and convincing proof,
ante, at 560, see
Schlup v.
Delo, 513 U. S. 298, 327
(1995), and the Court would be satisfied with a demonstration of
innocence by evidence "not presented at trial,"
ante, at
559, even if it had been discovered, let alone discoverable but
unknown, that far back.
Whatever policy the Court is pursuing, it is not the policy of
AEDPA. Nor is any other justification apparent. In this particular
case, when all else is said, we simply face a recall occasioned by
some administrative inadvertence awkwardly corrected; while that
appellate process may have left some unfortunate impressions,
neither its want of finesse nor AEDPA warrant the majority's
decision to jettison the flexible abuse-of-discretion standard for
the sake of solving a systemic problem that does not exist.
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