538
OCTOBER TERM, 1997
Syllabus
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
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