concurring in the judgment, with whom O’SCANNLAIN, Circuit Judge, joins:
I join that portion of Judge Kleinfeld’s concurrence (the second, third and fourth full paragraphs on page 930) that recognizes the full court never voted to take en banc Thompson’s motion for authorization to file a successive habeas petition.
Further, the full court never voted to consider en banc case No. 97-99018, Thompson’s appeal from the denial of his Rule 60(b) motion. Nor were the procedures of Circuit Rule 22-3(a)(3) followed. This court’s July 30, 1997, order announces that the majority of the active judges had voted to take en banc Nos. 95-99014 and 95-99015; there is no mention of No. 97-99018. The ease is therefore still properly pending before the three-judge panel. Our August 3, 1997, order dismissing No. 97-99018, and our May 13, 1998, order reinstating it, were ultra vires.
Because I believe we have no authority to speak, I say nothing further. ■
KLEINFELD, Circuit Judge,concurring in the judgment, with whom O’SCANNLAIN and T.G. NELSON, Circuit Judges, join, and with whom KOZINSKI, Circuit Judge, joins in part:
I concur in the result the majority reaches, that Thompson has not demonstrated an en*927titlement to any relief in this proceeding. I also agree with the majority that Thompson has not submitted evidence that would entitle him to authorization to file a second or successive petition. But I would not reach that issue, because our eleven judge en banc panel would have no authority to grant the authorization even if we thought Thompson had presented sufficient evidence to be entitled to it.
Thompson filed what Congress calls a “second or successive application” in the United States District Court. He sought a federal writ of habeas corpus addressed to his California state conviction and death penalty. That he styled his papers a motion for relief under Federal Rule of Civil Procedure 60(b)(2), (3), and (6), does not enable him to avoid the statutory limitations on second and successive applications.
Thompson had previously petitioned for a writ of habeas corpus in district court and his case had gone to final judgment. He had prevailed in district court on a theory of ineffective assistance in counsel, but we reversed and ruled that a writ would not issue. Thompson v. Calderon, 109 F.3d 1358 (9th Cir.1997). Thompson petitioned for certiora-ri, it wás denied, Thompson v. Calderon, - U.S. -, 117 S.Ct. 2426, 138 L.Ed.2d 188 (1997), our mandate issued and the district court entered judgment.
A week later, Thompson filed new papers seeking a federal writ of habeas corpus to obtain relief from his state confinement and death sentence. He claimed that newly discovered evidence that he did not rape Ginger Fleischli, and prosecution failure to disclose the new evidence to him during and after his trial, entitled him to a writ. . Though Thompson styled his papers as a motion under Federal Rules of Civil Procedure 60(b)(2), (3) and (6), rather than as a petition for a writ of habeas corpus, that does not entitle him to avoid the limitations of 28 U.S.C. § 2244(b) on “a second or successive application.” •
I doubt there could be any form of papers seeking, as a practical matter, federal relief from a state conviction and sentence, after federal relief had previously been denied, that would not fall within the statutory provisions governing second or successive applications. In Clark v. Lewis, 1 F.3d 814, 825 (9th Cir.1993), we said that “where a habeas petitioner tries to raise new facts or new claims not included in prior proceedings in a Rule 60(b) motion, such motion should be treated as the equivalent of a second petition for writ of habeas corpus.” Likewise in Nevius v. Sumner, 105 F.3d 453, 461 (9th Cir.1996), we treated a motion to recall a mandate as a subsequent petition for a writ of habeas corpus, because to do otherwise would be to evade the strictures of McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and the Antiterrorism and Effective Death Penalty Act of 1996.
Even if there might be a category of second or successive applications .for federal relief from state criminal confinement and death sentences not covered by 28 U.S.C. § 2244(b), this application would not fall within it. Thompson sought habeas corpus relief based on a claim of innocence of an aggravating circumstance and prosecutorial misconduct. These are grounds ordinarily and frequently asserted in habeas corpus petitions, and unquestionably covered by the statutory restrictions on second.and successive petitions.
In its decision reversing our sua sponte recall of the mandate from our earlier decision, the Supreme Court said that the precise claim before us today would be a second or successive application limited by 28 U.S.C. § 2244(b). The Court said “had the court considered claims or evidence presented in Thompson’s later filings, its action would have been based on a successive application, and so would be subject to § 2244(b).” Calderon v. Thompson, - U.S.-,-, 118 S.Ct. 1489, 1500, 140 L.Ed.2d 728 (1998). Though the statement was dicta because the Court did not use it to resolve any issues in dispute, Thompson’s • argument that we should not do as the Court said cannot be accepted. Thompson argues that to the extent his motion in district'court was based on fraud under Federal Rule of Civil Procedure 60(b)(3), the policy of prohibiting successive petitions to avoid manipulative withholding of claims does not apply. But the statute applies to second and successive applications *928regardless, as the Supreme Court has said in this very case.
Congress has established the procedure to be used for second and successive applications, as this is, in the Antiterrorism and Effective Death Penalty Act of 1996. The Act states that “[bjefore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Thompson did not move in this court for an order authorizing the district court to consider his application. Because he did not obtain an order authorizing the district court to consider the application, as required by 28 U.S.C. § 2244(b)(3)(A), the district court dismissed the application. The statute plainly required the district court to do exactly what it did. That should be the end of this case. We should simply affirm the dismissal on the ground that Thompson had not obtained an order authorizing him to file his second or successive application in district court, so the district court lacked jurisdiction to act on it under 28 U.S.C. § 2244(b)(3)(A).
There is no reason to think that Thompson made a mere technical error or error of form. He has been very skillfully counseled by excellent lawyers, and may well have made a tactical decision to proceed as he did. Had Thompson moved for authorization to file his second or successive application, his motion would have gone to the same three judge panel that had previously heard his case. See Circuit Rule 22-3(a)(3). That panel had reversed the district court’s grant of the writ, Thompson v. Calderon, 109 F.3d 1358 (9th Cir.1997), and denied his motion to recall its mandate, Thompson v. Calderon, 122 F.3d 28 (1997). That panel expressly instructed in its published order that “[pjetitioner may file a second petition for habeas corpus after moving this court for authorization under 28 U.S.C. § 2244(b)(3)(A).” Id. at 30.
The majority today considers Thompson’s request for § 2244(b) authorization on the merits and denies it. While that would be the correct decision, were we entitled to reach the merits, we are not. My disagreement with the majority regarding jurisdiction may affect future cases, so is worth setting out.
Thompson did not make a motion in this court for authorization. He filed a notice of appeal in district court, from the order denying his motion for relief from judgment under Federal Rule of Civil Procedure 60(b). Thompson did not seek appellate authorization to file a second or successive application until after we had, in an eleven judge en banc panel order, required supplemental briefs. Only then, in his concluding sentence, Thompson asked us to vacate and reverse the district court decision, “or, in the alternative, authorize the district court to consider Petitioner’s successor petition.”
If Thompson’s request in his brief amounts to a motion under Federal Rule of Appellate Procedure 27, then it has to go to a three judge panel. The reason is that Congress said that “[a] motion in the court of appeals for an order authorizing a second or successive application shall be determined by a three-judge panel of the court of appeals.” 28 U.S.C. § 2244(b)(3)(B). Statutes get no clearer than that. We are eleven. “Three” does not mean the same thing as “eleven.” An eleven judge en banc panel cannot grant or deny a- motion for leave to file a second or successive application, because 28 U.S.C. § 2244(b)(3)(B) says “three-judge panel.”
Thompson argues that the legislative history shows- that when it said “three,” all Congress meant was “more than one.” His citation is to a remark by Senator Specter that “Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court.” Cong. Rec., June 7,1995, S7805 (remarks of Sen. Specter). This legislative history provides no support for the argument, for several reasons. First, the Senator did not even mention en bane proceedings and was not discussing them, so inferring that he meant to allow them is unwarranted speculation. The Senator appears to have been speaking to the risk of a single idiosyncratic appellate judge acting in error. Second, individual senators do not make laws; majorities of the House and Sen*929ate do. See Puerta v. United States, 121 F.3d 1338, 1344 (9th Cir.1997). Finally, there is no ambiguity in the statute that would entitle us to resort to legislative history to figure out how to interpret away the ambiguity. Fernandez v. Brock, 840 F.2d 622, 632 (9th Cir.1988).
“Three” is among the plainest words Congress can use. If we could construe “three” to mean “eleven,” imagine what we could do with “two.” The Constitution says “two Senators from each State,” Art. I, § 3. But because construing “two” to mean “two” would conflict with evolving standards of “one person one vote,” perhaps we could construe “two” to mean “no fewer than two,” allowing for perhaps “seven” Senators from a large state.
The majority takes the' position that anything a three judge panel can do, an en banc panel can do. Generally that is true, but not in this case. The statute regarding second and successive applications, 28 U.S.C. § 2244(b)(3)(B), says “three-judge panel,” and § 2244(b)(3)(E) says the three judge panel’s decision “shall not be appealable and shall not be the subject of a petition for rehearing.” Those words in the statute exclude the. possibility that we may proceed in the ordinary way to rehear matters en banc, or hear them initially en banc. We have held that 28 U.S.C. § 2244(b)(3)(E) requires us to dismiss a suggestion for rehearing en banc as unauthorized. See United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997).
The majority construes the statutory prohibition on “petition for rehearing” to leave room for sua sponte rehearing en banc. In our decision recalling the mandate, reversed by the Supreme Court, we had avoided the statutory restraints in § 2244(b) on second habeas petitions by proceeding “sua sponte” on Thompson’s first habeas petition. See Thompson v. Calderon, 120 F.3d 1045, 1049 (9th Cir.1997) (en banc), reversed on other grounds - U.S. -, 118 S.Ct. 1489, 140 L.Ed.2d 728. But proceeding sua sponte can at most avoid the § 2244(b)(3)(E) prohibition of “petition” for rehearing. Acting without a petition cannot avoid the § 2244(b)(3)(B) command that a motion “shall be determined by a three-judge panel.”
We generally have authority under 28 U.S.C. •§ 46 to order initial hearing or rehearing of any matter en banc. But it is elementary that a -more recent and specific statute is reconciled with a more general, older one by treating the more specific as an exception which controls in the circumstances to which it applies. 2B Sutherland on Statutory Construction § 51.02 (5th ed.1992). The more recent and specific statute says “three-judge panel.” Thus it is plain that there is an exception to our general authority to hear any matter en banc, where the matter is a motion for authorization to file a second or successive application. Congress could have so provided in order to avoid the greater delays inherent in considering any matter before a larger panel.
The majority bases its contrary conclusion on Triestman v. United States, 124 F.3d 361, 367 (2d Cir.1997) and In re Vial, 115 F.3d 1192 (4th Cir.1997) (en banc). But those cases do not establish the point. Triestman holds that the statutory prohibition of “a petition for rehearing” does not limit a court’s power sua sponte to rehear a matter. But the sua sponte rehearing in Triestman was by the three judge panel that had previously heard the matter, not a larger panel, so the court had no occasion to consider the statutory command that motions for authorization “shall be determined by a three-judge panel.” 28 U.S.C. § 2244(b)(3)(B). Because Triestman construed subsection (E) and not subsection (B), it is not on point. Because Triestman involved a three-judge panel’s sua sponte rehearing of its own decision, and not en banc hearing or rehearing, it establishes no precedent for en bane rather than three judge panel hearing or rehearing.
In Vial, the Fourth Circuit convened en banc to consider a request for permission to file a second or successive application. All thirteen judges sat, so the case is indeed precedent for sua sponte consideration by’an en bane panel of more than three, as. the majority says. But Vial should be distinguished, for two reasons. First, the case does not cite subsection (b)(3)(B) and does not discuss at all the question whether a panel of more than three judges would comply with the statute. Because the question *930appears not to have arisen, the Fourth Circuit cannot be taken to have answered it.
Second, a peculiarity of our circuit gives the difference between a three judge panel and an en banc panel a different meaning from what it has in the Fourth Circuit or any other. Our en banc courts consist of the chief judge and ten additional judges drawn by lot. Circuit Rule 35-3. For that reason, en banc hearing or rehearing consists of a different set of judges, both from a three judge panel, and from the entire court. This difference allows for manipulation of a case to gamble on a more favorable panel for one side or the other, if we do not carefully comply with applicable statutes, rules and general orders. On the Fourth Circuit, where Vial came down, there is no difference between the en banc court deciding something, and the full court deciding that the en bane court ought to decide something. But in the Ninth Circuit there is a big difference. We currently consist of 21 active judges, but only 11 sit on an en banc panel. For that reason, in the Ninth Circuit, judges not drawn for an en banc panel can affect what the en banc panel considers only when they vote on whether to take the case en banc. A majority of the court, necessary to take a case en banc, consists of 11, but a majority of an en banc panel consist of only 6, and cannot usurp the authority of the full court to decide which cases to take en banc.
Because a “case” may be heard en banc only on a vote of the entire court, the majority is mistaken when it asserts that “the en banc court designated to hear this Thompson case would always be in a position to review sua sponte the decision of the three judge panel.” “Cases and controversies” may be taken en banc only if “ordered by a majority of the circuit judges of the circuit who are in regular active service.” 28 U.S.C. § 46(c). But the full court has never voted to take this case on banc.
When we voted to go en banc last July, Thompson had not even made a motion- for authorization to file a second or successive application. He did not do so until we, as an en banc panel, ordered supplemental briefing after the Supreme Court reversed our earlier sua sponte recall of our mandate. As we stated in our order taking Thompson’s earlier case en banc, “[t]he full court has voted to consider whether to recall the mandate to consider whether the panel decision of our court would result in a fundamental miscarriage of justice.” Thompson v. Calderon, 120 F.3d 1042, 1043 (9th Cir.1997). Our decision recalling the mandate sua sponte recited that the full court had “voted to reconsider en banc whether to recall the mandate.” Thompson v. Calderon, 120 F.3d 1045, 1048 (9th Cir.1997) (en. banc).
We stated expressly in our previous en bane decision that' the case at issue was “Thompson’s first habeas petition.” Id. Today, we rule on his second habeas petition. This is a different case. This time, we are not hearing en banc the motion for recall of our mandate regarding Thompson’s first ha-beas petition. We heard that ease, decided it, and were reversed by the Supreme Court. That case is over. A second or successive application is by definition a new case, albeit by the same plaintiff against the same defendant. That is why it cannot be filed without authorization.
Fortunately, we have agreed upon the proper result, despite our disagreements on some aspects of the proper procedure for doing so. It has been seventeen years since Thompson murdered Ginger Fleischli. During that time Thompson has had the most extensive and careful consideration of his case at every level of the state, and federal systems, including two decisions, one to deny certiorari and another on the merits, before the Supreme Court. Great numbers of the most highly talented lawyers have devoted the utmost zeal to advocating every possible theory on his behalf. That he murdered Ms. Fleischli has not been put seriously in doubt. The issue has been whether the trial jury was right that Thompson raped Ms. Fleischli before he murdered her, or whether he had sexual intercourse with Ms. Fleischli with her consent before he put a knife through her head. Justice requires a conclusion. Proper procedure does not prevent a case from ever reaching a conclusion.
While I concur in the result reached by the court, I believe that our en banc panel would *931have had no jurisdiction to grant relief in any event.