with whom T.G. NELSON, and KLEINFELD, Circuit Judges join, dissenting:
We dissent from the majority’s unprecedented and arbitrary exercise of the court’s power to recall our mandate.
I.
By recalling the mandate, and reconsidering the merits of our original opinion, the court has encouraged and enabled Thompson’s attempt to end run the restrictions of the Antiterrorism and Effective Death Penalty Act (“the AEDPA”). The AEDPA requires that a habeas corpus petitioner base a second or successive application on a new rule of constitutional law or newly discovered facts that establish by clear and convincing evidence that no reasonable jury could have found guilt in the absence of constitutional error. 28 U.S.C. § 2244(b)(2). It also requires that any claim already presented in a prior application must be dismissed. 28 U.S.C. § 2244(b)(1). Finally, the petitioner must file an application making a prima facie showing that he meets these requirements and receive our permission before he can file a second petition. 28 U.S.C. § 2244(b)(3). We have expressly forbidden the recall of our mandate simply to avoid these procedural bars. Nevius v. Sumner, 105 F.3d 453, 461-62 (9th Cir.1996). Otherwise, the successive petition constraints of the AEDPA are a dead letter.
Thompson’s motion to recall the mandate is not — and no one should think it is — a request to recall the mandate for a genuine reason. It is, pure and simple, an attempt to skirt the AEDPA’s successive petition requirements. Thompson’s motion to recall the mandate was based exclusively on claims of newly discovered evidence.1 That motion was virtually identical, as counsel admitted at oral argument, to his Rule 60(b) motion filed in district court the same day.2 If we treat the motion as a successive petition, as Rule 60(b) motions are and as this motion ought to be, the en banc court has no jurisdiction to entertain it. The court has not given permis*1065sion for a successive petition to be filed, and indeed Thompson disclaims any intention of filing one. The en banc court therefore lacks jurisdiction under the AEDPA to go further.
When the majority disclaims Thompson’s reliance on newly discovered evidence and bases its recall on the opinion reported at 109 F.3d 1358, it blatantly disregards the AED-PA and the Federal Rules of Appellate Procedure. Congress has made it very clear that a petitioner may not present for a second time claims which failed in prior habeas petitions. See 28 U.S.C. § 2244(b)(1). If Thompson tried solely to revisit the claims rejected in his first petition, his second petition (no matter how it is cloaked) must be dismissed by the court. 28 U.S.C. § 2244(b)(3)(B)-(C). The court’s denial of such an application is not appealable and may not be the subject of a petition for rehearing. 28 U.S.C. § 2244(b)(3).3 Although we maintain the power to recall our mandate, we cannot exercise that power in violation of our statutory jurisdiction.
II.
There are no “exceptional circumstances” justifying recall of the mandate in this case. The court’s opinion filed today does not claim that there has been an intervening change in the law that would require us to revisit our settled judgment, nor does it rely upon any allegedly new facts supporting a claim of “actual innocence.” What purports to be exceptional in this case is the neglect of two judges to make a timely call for en banc review upon belatedly deciding that they wished they had called one when they first received notice. While the majority gives lip service to the “exceptional circumstances” standard for recalling the mandate, the reasons given, oversight of two judges of this court, would not even rise to the level of “excusable neglect” under Rule 6(b) of the Federal Rules of Appellate Procedure. See Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 392, 113 S.Ct. 1489, 1496, 123 L.Ed.2d 74 (1993) (“inadvertence, ignorance of the law or mistakes construing the rules do not usually constitute ‘excusable’ neglect”), quoted in Committee v. Yost, 92 F.3d 814, 824 (9th Cir.1996) (Fletcher, J.).
When discussing “excusable neglect” in Pioneer, the Court said that the inquiry is an equitable one, taking into account all relevant circumstances, id. at 395, 113 S.Ct. at 1498, which include “the risk of prejudice to the nonmoving party, the extent of the delay, and the potential effect on judicial proceedings, the reason for the delay and whether the moving party acted in good faith.” Reynolds v. Wagner, 55 F.3d 1426, 1429 (9th Cir.1995). The majority’s narrow focus on the neglect of two members of this court leads it to wipe from the books everything that has since happened, including the Supreme Court’s denial of Thompson’s petition for certiorari, the denial of his successive petition by the California Supreme Court, the denial of his Rule 60(b) motion by the district court, and the denial of his motion to recall the mandate by the panel. This neglect cannot be used to reverse the system of justice that has proceeded as a result of, and in reliance on, this court’s final judgment.
Even worse, the majority only looks to that inexcusable neglect as part of the “totality of circumstances.” According to the majority, recall of our mandate does not rely exclusively upon procedural “misunderstandings.” Without assigning any factor particular weight, the majority also weighs Thompson’s claims that: (1) he may be innocent; (2) the panel’s decision may be wrong; and (3) the consequences are serious. Maj. Op. at 1051. These contentions are remarkably common and many a failed habeas petitioner will believe that he fits into a similar “totality of circumstances.” In short order, this court will be flooded by motions to recall our established decisions. Worst of all, citing this case as precedent, many of these petitioners will be heard despite being barred by the AEDPA from seeking relief.
*1066III.
Not only does the en banc court lack jurisdiction under the AE DPA, but it lacks authority under the court’s rules to do anything more than what it was authorized to do when the court voted to go en banc. The active judges of this court voted to rehear the panel’s decision which deuáed the motion to recall the mandate. Because there has never been a vote on whether to take the initial panel decision en banc, in effect the majority’s approach amounts to a waiver of the requirement in section 5.4.b.(2) of our General Orders that an en banc call be made within 14 days after the panel gives notice that it rejects a party’s suggestion for en banc rehearing.4
The notion that an en banc court can itself decide whether to set aside our General Orders and authorize its own untimely en banc review of a panel decision suggests it can improperly bypass the General Orders themselves. Suspension of the General Orders can come only upon a proper two-thirds vote of the court, which, itself must follow the appropriate procedures. See G.O. 11.11.5 If, on the other hand, the court’s earlier vote to go en banc was also — sub silentio — one to set aside our General Orders and take the initial panel decision en banc, that vote failed to obtain the two-thirds majority required for the purpose. See G.O. 11.11. Thus, the merits of the initial panel decision cannot have been taken en banc as a result of that vote.
IV.
Rather than compound the error in the court’s opinion filed today, we simply state that we would reverse the district court for the reasons stated in the court’s original opinion. Thompson v. Calderon, 109 F.3d 1358 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2426, 138 L.Ed.2d 188 (1997).
With respect to the successive habeas petition (disguised as a Rule 60(b) motion further disguised as a motion to recall the mandate), we would deny Thompson’s petition if the court had the jurisdiction to do so. Thompson introduces alleged newly discovered evidence of actual innocence which, he argues, compounds his assertion of constitutional error at trial. Evidence of that innocence must be “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995). “[T]he evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.” Id. As the district court properly concluded, Thompson’s evidence — hearsay statements by Leitch which Leitch repeatedly contradicted — do not approach this standard. See Thompson v. Calderon, No. CV-89-3630-DT (C.D.Cal. July 25, 1997).
CONCLUSION
The alleged newly discovered evidence, whether presented as a Rule 60(b) motion or as a request to recall the mandate, must be treated as a second and successive petition under the AEDPA. By entertaining this motion, the court nullifies Congress’s clear intent in passing that act.
. Despite the majority’s disclaimer of this "evidence" as grounds for their decision to recall the mandate, Thompson's motion is based solely on those grounds. It is that motion — filed by Thompson — which reflects his intent to end run the AEDPA. It was the denial of that motion which triggered this court’s vote on whether to recall the mandate. See note 3, infra.
. The district court denied that motion on July 25, 1997, correctly holding that the Rule 60(b) motion was to be treated as a successive petition for habeas corpus. Clark v. Lewis, 1 F.3d 814, 825 (9th Cir.1993); see also Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.1996); Blair v. Armon-trout, 976 F.2d 1130, 1134 (8th Cir.1992); Kyles v. Whitley, 5 F.3d.806, 808 (5th Cir.1993), rev’d on other grounds, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The court then concluded that it lacked jurisdiction to consider Thompson’s motion because he had not received prior authorization in this court to file a successive habeas petition, as required by § 2244(b)(3) of the AEDPA.
. Nor could the en banc court decide sua sponte to recall the mandate. This court only has jurisdiction to rehear en banc "an appeal or other proceeding.” F.R.App. P. 35(a). Absent a successful or failed motion to recall our mandate, there is no "appeal or other proceeding” to rehear.
. When a party has suggested rehearing en banc, the General Orders for a sua sponte call do not apply. See G.O. 5.4.c.(1)(a) ("Any judge may request a vote on rehearing a case en banc: (1) sua sponte; (2) in response to a panel’s rejection of a judge’s proposal for amendment {see G.O. 5.3, supra); or (3) in response to a party’s suggestion or a panel’s recommendation that a suggestion be rejected (see G.O. 5.4.(b)(2), supra).") (emphasis added).
. "Any active judge may request that the court vote to suspend a provision or provisions of these orders.... Any proposed suspension must be approved by the number of votes that equals or exceeds two-thirds of the eligible judges.” G.O. 11.11.