Cite as: 523 U. S. 538 (1998)
Opinion of the Court
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
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