with whom HALL, BRUNETTI, TROTT and KLEINFELD, Circuit Judges, join dissenting:
A majority of the active judges of the court have authorized an en banc court to reconsider an order denying the motion to recall the mandate which issued from this court on June 11,1997.
We issued the mandate in compliance with Fed. R.App. P. 41(b) after the United States Supreme Court denied a petition for certiorari seeking review of the opinion in Thompson v. Calderon, 109 F.3d 1358 (9th Cir.1997). On July 22,1997, Thompson moved this court for an order recalling the mandate, asserting “newly discovered evidence confirming that petitioner had consensual intercourse with, and did not rape, Ginger Fleischli.” Thompson further asserted that this evidence was withheld by the state and undercuts our pri- or holding that there was no prejudical ineffective assistance of counsel. Thompson’s motion was denied by a panel order filed on July 28,1997.
The en banc court has not advised the parties whether the court intends to limit its reconsideration to the petitioner’s motion to recall the mandate, whether it intends to reconsider matters which the Supreme Court considered when it denied the petition for certiorari or whether it intends to consider setting aside the penalty of death based on the newly discovered evidence claim.
If the en banc court limits the scope of its reconsideration to recall the mandate and, in fact, recalls the mandate, such an order will have several consequences.
First, when the mandate is recalled, a first petition for writ of habeas corpus will be actively pending before the court. Our death penalty rules expressly provide for a stay of execution while the court considers the merits of the pending motion. Ninth Circuit Rule 22-4(e) provides, in part: ‘When the panel affirms a denial or reverses a grant of a first petition or motion, it shall enter an order staying the mandate pursuant to FRAP 41(b).” Without respect to the circuit rule an en banc court can consider entry of a stay of execution. Since Thompson’s pending application for recall of the mandate is, in practical effect, a second or successive petition, the standard to be applied is set down by the Supreme Court in Delo v. Blair, 509 U.S. 823, 823, 113 S.Ct. 2922, 125 L.Ed.2d 751 (1993), as follows:
It is an abuse of discretion for a federal court to interfere with the orderly process of a State’s criminal justice system in a case raising claims that are for all relevant purposes indistinguishable from those we recently rejected in Herrera [v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)]. Accordingly, the Court of Appeals’ stay must be vacated.
The California Supreme Court denied Thompson’s petition for writ of habeas corpus claiming newly discovered evidence on the merits. In re Thompson, No. S062592 (Cal. July 16,1997).
Second, there is no recorded new evidence before the court upon which to set aside jury verdicts finding Thompson guilty of murder and rape and finding him subject to imposition of the death penalty.
*1044Third, if the claim of newly discovered evidence is considered as made in a first petition rather than in a second or successive petition, the petitioner will be relieved of the constraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996. In Nevius v. Sumner, 105 F.3d 453, 461 (9th Cir.1996), we make plain the abuse which flows from a recall of the mandate in a capital case. Writing for our court, Judge Canby says:
Nevius’ motion suffers from the fact that it is not grounded in any real infirmity in our previous decision, either when it was entered or when it is viewed in the light of later Supreme Court decision. Nevius wants us to recall our mandate in Nevius I not to nullify an erroneous decision, but to reopen the proceeding so that he may present new claims that now cannot be addressed in a subsequent petition. The reasons that those claims cannot be addressed in a second petition are that severe limits have been placed on second petitions by the Supreme Court in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and by Congress in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(a), (b). To grant Nevius’ motion simply to avoid the effect of those two procedural bars would thoroughly undermine McCleskey and the Act. That we may not do.
Id.
We conclude that recall of the mandate based on asserted newly discovered evidence is improper relief to be granted by an en banc court just as the grant of a Fed.R.Civ.P. 60(b) motion would be improper in a district court. Clark v. Lewis, 1 F.3d 814, 825-26 (9th Cir.1993). The sole avenue available to Thompson at this stage of the procedural history of this ease is to make application to this court for permission to file a second or successive petition for a writ of habeas corpus in compliance with the Antiterrorism and Effective Death Penalty Act of 1996.
We respectfully dissent from the order granting en banc consideration.