572
Souter, J., dissenting
Why AEDPA is thought to counsel review of recalls of mandates under anything but the traditional abuse-of-discretion standard is unexplained by anything in the majority opinion. The majority, like me, accepts the Court of Appeals's position that it was not covertly allowing respondent to litigate a second habeas petition; the majority assumes that the Ninth Circuit was acting on its own motion to recall the mandate, in order to allow reconsideration of the first habeas petition. Ante, at 554. On these assumptions, AEDPA has no application to the issue before us. Nothing in AEDPA speaks to the courts of appeals' inherent power to recall a mandate, as such, and so long as the power over mandates is not abused to enable prisoners to litigate otherwise forbidden "second or successive" habeas petitions, see 28 U. S. C. § 2244(b), AEDPA is not violated.
Nor are the policies embodied in AEDPA served by today's novelty. Section 2244(b) provides that if a claim raised in a second or successive petition was presented in a prior application, it shall be dismissed. I suppose that if the claim under en banc review were to bear analogy to anything covered by AEDPA, it would be to the previously raised claim covered by subsection (b)(1), since the claim reviewed en banc was the actual claim previously reviewed by the panel. And yet the majority does not draw any such analogy and does not dismiss on this basis. Subsection (b)(2) provides that when a second or successive petition raises a claim not previously presented, it too shall be dismissed unless based on a new and retroactive rule of constitutional law, § 2244(b)(2)(A), or based on previously undiscoverable evidence that would show to a clear and convincing degree that no reasonable factfinder would have convicted, considering all the evidence, had it not been for constitutional error, § 2244(b)(2)(B). Here, again, the majority fails to draw any analogy, for if reconsideration of a claim after sua sponte recall were thought to resemble a claim mentioned in subsection (b)(2), the majority would presumably require more than
Page: Index Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 NextLast modified: October 4, 2007