Cite as: 523 U. S. 538 (1998)
Souter, J., dissenting
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 Kyles 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-
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