546
Opinion of the Court
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 banc, 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 banc and no judge in active service has requested a vote to rehear the matter en banc." 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.
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