570
Souter, J., dissenting
there were reason to suppose that the sua sponte recall would be overused or abused in either respect, we might well see its use as unreasonable in a given case simply to deter resort to it in too many cases. But as matters stand, we have no reason for such fears and no reason to circumscribe the Court of Appeals's response to its otherwise legitimate concerns. If history should show us up as too optimistic, we will have every occasion to revisit the issue.
Going from the legitimacy of the Court of Appeals's concerns to the reasonableness of invoking them on the facts here, I need mention only two points. The first arises on the question whether administrative mistakes in the chambers of only two judges could be seen as causing what the court saw as the threatened miscarriage of justice in permitting the execution of someone who was ineligible for death; two failures to vote for en banc review are not the cause of a miscarriage when the vote against such review is otherwise unanimous. Such at least is the math. But anyone who has ever sat on a bench with other judges knows that judges are supposed to influence each other, and they do. One may see something the others did not see, and then they all take another look. So it was reasonable here for the en banc court to believe that when only two judges mistakenly failed to vote for en banc rehearing, their misunderstandings could well have affected the result.
The only remaining bar to the application of the appeals court's policies to the facts of this case is said to be that the en banc court was mistaken in thinking the panel had committed error when it reversed the trial court's conclusion that ineffective assistance of counsel in the rape case had been prejudicial within the meaning of Strickland v. Washington, 466 U. S. 668, 693-694 (1984). But whether the en banc majority was correct on this question of law and fact is
ject to the constraints of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See, e. g., Nevius v. Sumner, 105 F. 3d 453, 461 (CA9 1996).
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