566
Souter, J., dissenting
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.
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