concurring and dissenting:
I concur in Parts I, II, III and IV of the majority opinion. However, because, in my opinion, Thomas Thompson has made a pri-ma facie showing of facts which, if believed, would mean that no reasonable juror could find him guilty of rape, I dissent from Part V. I would grant Thompson permission to file a second habeas petition and remand to the district court for a full hearing on the new evidence that he has presented.
This court’s refusal to allow Thompson to file a habeas petition will result in the execution of a man who was convicted and sentenced to death in a trial that violated fundamental principles of fairness, in which the constitutional violations were so egregious that seven former prosecutors, themselves highly experienced in death penalty cases, took the remarkable step of filing an amicus brief on his behalf with the United States Supreme Court.1 Last August, this en banc court held Thompson’s trial constitutionally defective by a seven to four vote — a conclusion that has not to date been refuted by any court.2 While we are barred on procedural grounds from reversing Thompson’s conviction and death sentence on the basis of these most serious constitutional violations, they nonetheless must color the prism through which we view the evidence of rape and the procedures to which he is now entitled. Today’s decision bars Thompson from presenting, at a hearing which could establish his actual innocence, newly discovered evidence that was improperly withheld by the state. The end result is that a man who did not receive a fair trial and is likely innocent of the conduct for which he received a capital sentence will nevertheless be put to death by the state without ever having received any form of fair hearing and without ever having had an opportunity to present the most critical evidence of his innocence át a fair fact-finding proceeding.3
Thompson has made a prima facie showing of actual innocence of rape as required by AEDPA: “facts ... [which] if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). A prima facie showing is established by “a sufficient showing of possible merit to warrant a further exploration by the district court.” Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997) (per curiam) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
*932Thompson has submitted newly discovered evidence which, if believed, would cause any reasonable juror to have a reasonable doubt about his guilt of the rape charge and thus the rape enhancement: evidence that David Leitch, Fleischli’s former lover who was also accused and convicted of Fleischli’s murder, has admitted that on the night of the murder, he walked into the apartment he shared with Thompson and observed Thompson and Fleischli engaged in consensual sex. By this admission, Leitch placed himself at the murder scene before the murder occurred — a most damaging admission given the contrary story he has generally told.
Leitch’s admissions directly contradict the prosecution’s theory that a violent rape occurred — a rape that would have been obvious to any observer. Accordingly, no jury that believed that Leitch was telling the truth could credit the prosecution’s theory, and thus, no jury that credited the Leitch admissions could convict Thompson of rape. Therefore, the question of whether Thompson can establish his actual innocence by clear and convincing evidence comes down to a pure credibility determination. Are the Leitch admissions true? As I will explain later, it is reasonably likely that they are. Thompson has therefore not only made the showing that § 2244(b) requires in order to obtain permission to obtain a hearing before an impartial district judge, but has clearly established the need for a full and fair evi-dentiary hearing at which the version of events contained in Leitch’s admissions can be tested by examining and cross-examining witnesses with actual knowledge of the facts. Instead we opt to execute a man on the basis of a prosecutorial theory that is supported largely by circumstantial evidence.
As this en bane court’s earlier unrefuted opinion determined, Thompson was convicted of rape by a jury which had never heard a defense to the charge, because Thompson’s lawyer — whose performance fell far below minimal constitutional standards for effective assistance of counsel — decided to argue without any evidentiary basis that Leitch was “the rapist.” He did so instead of challenging the prosecutor’s fundamental premise that a rape occurred — a premise based almost entirely on circumstantial evidence that the sexual act between Thompson and Fleischli was non-consensual rather than consensual. Thus, the prosecution’s theory that a rape was committed — the theory that underlies Thompson’s capital sentence — was never adequately tested. Also, as our earlier en banc opinion concluded, Thompson was prosecuted by a district attorney who at two separate trials presented two contradictory theories of who was responsible for murdering Ginger Fleischli, and earlier at two separate proceedings in Thompson’s case presented two contradictory theories as to whether a rape had occurred.4 Thompson was convicted in part on the testimony of two jailhouse informants who claimed that he had confessed rape and murder to them. Their version of the crime directly contradicted the version testified to by four other jailhouse informants who had appeared for the prosecution at Thompson’s preliminary hearing.5 It is ironic in light of the glaring inconsistencies in the prosecutor’s theories and the stories of the prosecutor’s witnesses that the majority, deprives Thompson of an evidentia-*933ry hearing because Leitch’s statements exculpating Thompson were contradicted by other statements he made in order to try not to inculpate himself.
Despite the history of repeated constitutional violations that must seriously shake any rational observer’s faith in the outcome of this case, and in the face of newly discovered evidence that undermines the factual basis for the rape conviction and enhancement, if not of the murder itself, the majority concludes that it must allow Thompson’s execution to go forward without permitting him the opportunity to have a hearing on this critical new evidence. I respectfully dissent. I do not believe that the law, even after Calderon v. Thompson, - U.S. -, 118 5.Ct. 1489, 140 L.Ed.2d 728 (1998), requires such a gross miscarriage of justice.
The rape conviction, and thus the rape enhancement, is the key to the state’s right to execute Thompson. Without it, as the majority acknowledges, Thompson is not death eligible; in short, without it, California may not lawfully put him to death. Leitch’s account of consensual sex is the only eyewitness testimony — the only direct evidence other than that provided by Thompson himself of what actually happened the night that Fleischli was murdered — the only direct evidence as to whether a rape actually occurred. This newly discovered evidence potentially calls into question all of the conclusions that have been heretofore drawn from the array of circumstantial and'jailhouse informant evidence presented against Thompson.
Up until now, the evidence of rape, untested at Thompson’s trial because of his lawyer’s inexplicable decision not to contest the rape allegation, has been — aside from the inconsistent and unreliable jailhouse informant testimony — entirely circumstantial.6 The bruising of Fleischli’s wrists, ankles and palms, evidence that she was gagged with duct tape, and the fact that someone ripped her shirt and bra down the middle and pulled it down around her elbows all suggest that she was violently restrained at some point on the evening she was murdered. The presence of semen in her body establishes that she had intercourse shortly before her death, with someone of Thompson’s (and, incidentally, Leitch’s) blood type.
Of course, this circumstantial case was established at a trial at which the jury never had the opportunity to hear the evidence tested by an adversarial process. It is no wonder that the prosecution could assemble a fair amount of evidence that appeared to support the charge of rape at a trial at which defense counsel decided to attempt to blame the “rape” on someone else rather than to seek to establish, as he might well have done, that there had been no rape at all. And while the Supreme Court found that the conflicting forensic testimony Thompson presented at the evidentiary hearing on his first habeas petition was not in itself sufficient to meet the Schlup or Sawyer standards,7 the evidence of Thompson’s guilt was certainly not so clear that testimony as to what a direct eyewitness observed need not be considered or tested before a trier of fact.8
The majority bases its decision in part on its assertion that the evidence that Thompson raped Fleischli is “overwhelming.” ' That is simply not the case. All one need do is read Judge Fletcher’s en banc opinión of last August to discover that today’s characterization of the evidence is plainly incorrect. While the majority of the Supreme Court may have viewed the evidence as sufficiently strong to withstand, for purposes of a second or successive petition, an attack based on conflicting forensic evidence, we are by no means compelled by Calderon to misstate the *934quantum of evidence so egregiously. Nor, in my opinion, are we compelled to overlook the fact that the not-so-overwhelming evidence was adduced at a trial at which a constitutionally inadequate defense to the charge of rape was offered.
Until now, there has been no witness— other than the not-so-credible defendant — • who could shed direct light on what actually occurred the night Ginger Fleischli was murdered. There was. no witness who acknowledged observing the sexual act that took place between Thompson and Fleischli. All that was available previously was circumstantial evidence and the substantially “discredited” testimony of the prosecution’s second set of jailhouse informants. Thompson now offers evidence that as early as 1982 Leitch had been reporting a version of events which, contrary to Leitch’s own interests, establishes his presence in the apartment before the murder took place and directly corroborates the crucial portion of Thompson’s trial testimony, namely, that the sexual act between Fleischli and Thompson was consensual.
Thompson presents a declaration authorized ■ by Judge Ronald P. Kreber, who served as Leitch’s defense attorney at his 1985 trial and has since been appointed Presiding Judge of the South Orange County District by Governor Pete Wilson. Kreber states that before Leitch’s trial Leitch informed him that the night that Fleischli was murdered Leitch walked into the apartment he shared with Thompson and witnessed Thompson and Fleischli engaged in consensual intercourse. Thompson also presents convincing evidence that Leitch told this same version of events to law enforcement officials. A declaration by a defense investigator states that retired Orange County Sheriffs detective Floyd Owens acknowledged that he may have heard this from Leitch. Although the majority points out that in a later declaration obtained by the state Owens retracts the statement that Leitch was the direct source of this information, Owens continued to affirm that as early as 1982 he had been informed of Leitch’s version of events, and identified the Orange County District Attorney’s office as the most likely source of the information. There is no satisfactory explanation, however, of who the actual source of this information could be other than Leitch himself.9 Next, at Leitch’s 1995 parole hearing, he told substantially the same story: that he walked in and saw Fleischli and Thompson having sex, and that he perceived no indication of rape.10 Finally, Leitch told a defense investigator that he believed he had told investigators about these events at the time of Thompson’s trial.
Leitch’s admissions against interest regarding what he observed starkly contradict and are wholly inconsistent with the events as theorized and argued by the prosecution— that Thompson raped Fleischli while she was handcuffed, her ankles bound, her mouth gagged, her clothes ripped, and a knife to her head. Certainly such a lurid scene could .not have escaped the notice of a man standing approximately ten feet away. The newly discovered Leitch version, if true, would preclude any reasonable juror from finding Thompson guilty beyond a reasonable doubt.
*935Owens’ information was never disclosed to the defense. Thompson’s attorneys became aware of Owens’ knowledge only upon conducting their own investigation, initiated after they learned of the similar story told by Leiteh at his 1995 parole hearing. They discovered the latter information when preparing for the 1997 clemency proceeding. The state had failed to disclose the 1995 information as well.11 The state’s failure to disclose crucial evidence corroborating Thompson’s testimony — while at the same time continuing to argue that the incredible and unbelievable nature of his testimony convincingly demonstrated his guilt — casts serious doubt upon the conclusions drawn by the many courts that considered 'Thompson’s first habeas petition. Moreover, applying the prima facie Woratzeck standard, the evidence regarding the failure to disclose certainly satisfies the Brady constitutional error requirement of § 2244(b).12
The district court is right that whether it was Leiteh himself who told Owens in 1982 that Leiteh. had witnessed consensual sex between Thompson and Fleischli or whether it was a member of the prosecutor’s office or even whether it was someone else is subject to dispute. The court is also right in pointing out that Leitch’s own credibility is suspect, given the conflicting versions of events that he has told over the years. However, the district court was wrong in discarding the likelihood that the admissions contrary to Leitch’s own interests were true, and in making findings of fact and credibility determinations adverse to Thompson unaided by the traditional methods of judicial fact-finding: testimony and cross-examination.13 Thompson has offered evidence of statements which, if found truthful, would require any reasonable jury to find him not guilty, and he should have been given the opportunity to fully test and explore the veracity of Leitch’s statements in a properly conducted judicial proceeding. In any event, Thompson has, most certainly, made “a sufficient showing of possible merit to warrant a further exploration by the district court.” Woratzeck, 118 F.3d at 650 (citation omitted).
Of course, Thompson1 would make a stronger showing if he could have produced a sworn affidavit from Leiteh. But, contrary to the majority’s view, his inability to do so does not necessitate his execution without affording him a hearing at which he can develop the facts. Leiteh is currently in prison seeking parole from his own conviction for his role in the murder of Ginger Fleischli, and minimizing his own involvement in the offense is certainly in his interests. It is therefore not surprising that Leiteh has on most occasions testified that he was not present at the apartment while Fleischli was still alive, since any statement to the contrary would be clearly inculpato-ry.*93614 Not only do Leitch’s recently discovered admissions link him to the murder through, his presence on the scene, but characterizing the sex as consensual rather than as a rape undermines the prosecution’s and Leitch’s only explanation for why Thompson — as opposed to Leitch, her former lover — would kill Fleischli. Under these circumstances, I think it clear that Thompson meets the Woratzeck standard, even in the absence of a sworn declaration by Leitch.
The other versions of events which Leitch had told over the years had one thing in common: he disclaimed any role in the murder of Fleischli and pointed instead to Thompson as the killer. The story of consensual sex, on the other hand, is consistent with what Leitch told his own lawyer in confidence at the time of his trial, when he had the opportunity to tell the truth without fear of adverse consequences and had no reason to lie. This story is not recently fabricated, nor does it serve Leitch’s interests. Such factors bolster the credibility of Leitch’s story despite the absence of a sworn declaration from him. Since Leitch would of course be extremely reluctant to make statements that further implicate him in Fleisch-li’s murder, we must, at least for purposes of deciding whether further exploration of the facts is warranted, afford special weight to those occasions on which he did acknowledge his presence in the apartment immediately preceding the murder.
It would be premature to conclude that Leitch’s testimony must be believed. But Thompson has clearly put forward a prima facie showing of actual innocence. It is not essential that Thompson produce a sworn statement by a reluctant, if not adverse, witness; because eliciting that type of testimony and subjecting a hostile witness to examination and cross-examination is precisely the function of an evidentiary hearing.
At this hearing, which will now unfortunately never occur, the district court could haye received testimony from Owens, Leitch, Kreber and others that might well have revealed what actually happened the night of Fleischli’s murder. The -court could have resolved the pure credibility questions that Thompson’s actual innocence hinges upon by testing the available evidence in the crucible of an adversary proceeding. Only then, would we have been able to determine whether.Thompson could have shown “clear and convincing evidence that ... no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).
Instead, the district court determined solely on the basis of declarations and transcripts — necessarily limited documents which are missing crucial details and which do not allow for testing the declarant’s credibility— that Leitch never made the' earlier statement, that he didn’t necessarily mean that the sex he witnessed was consensual, and that even if he did mean this then his testimony was not credible. The district court erred in reaching premature conclusions, an error that precluded any inquiry whatsoever into critical evidence of actual innocence. The majority now makes a closely related error; although its denial of the petition for leave to file a successive petition is based on an erroneous legal standard. The majority asks far too much of a capital defendant in the way of demonstrable proof at this stage of a §• 2244 proceeding. Given the circumstances of Thompson’s trial and the fact that the issue before us turns on the credibility of the admissions of a witness with directly *937conflicting interests, the requisite prima fa-cie showing under § 2244 has indeed been made.
What is truly regrettable is that Thompson — convicted largely on the basis of circumstantial evidence, in a trial in which he did not receive effective assistance of counsel — has now produced evidence regarding the observations of the only eyewitness to the sexual act, the character of which is dispositive of whether, under the law, he may be executed. Yet today, the majority deprives him of the one fair opportunity he would have had to prove what actually happened — to establish his actual innocence of the capital offense. If a man’s life were not at stake, it would be almost ironic that, in the context of the tortured procedural history of this case, the majority feels compelled to weigh the strength of the conflicting circumstantial evidence and to. cavil about the ultimate quality of the admissions of the only living eyewitness rather than to permit a court for the first time to conduct a full and fair evidentiary hearing. There are indeed more important considerations involved in cases such as this than are properly reflected in our abstruse debate over the quality and persuasiveness of the declarations Thompson has submitted.
This case can be described simply. Egregious constitutional violations and this court’s own procedural errors have combined to prevent Thompson from obtaining full and fair consideration of his defense to the charges that will shortly result in his execution. A record scarred by violations of due process and littered with procedural barriers to consideration of the merits of the case should not form the basis for allowing a person’s execution. In my opinion, it was well within the majority’s power to afford Thompson a hearing and avert this grave injustice.
Despite increasing restrictions on the writ of habeas corpus, the door has nonetheless been left open for someone who can make a convincing demonstration of actual innocence under 28 U.S.C. § 2244(b)(2)(B). As the statute makes plain, “actual innocence” means that no reasonable fact-finder would find the defendant guflty beyond a reasonable doubt. In a capital punishment ease, actual innocence means that the defendant would not be found guilty of an act that constitutes a capital enhancement or permits imposition of a capital sentence.
In this ease, if the credibility determinations regarding Leitch’s observations are resolved in Thompson’s favor — certainly a plausible outcome of an evidentiary hearing'— then no rational juror could convict Thompson of rape. No jury has ever heard this evidence — Leitch concealed, it for his own reasons, and the state did not disclose it— and thus no finder of fact has ever had the opportunity to decide whether what Leitch told Judge Kreber is true: that Leitch observed Thompson and Fleischli having consensual sex.
It is unconscionable that we do not afford Thompson the opportunity to test such crucial evidence before a district court judge. As some of my colleagues in the majority surely recognize, the fact that it now appears inevitable that Thompson’s execution will go forward' is truly a travesty of justice. Although I respect the majority’s belief that it is bound by precedent and statute to reach the decision it does, I simply do not agree that the law requires that result. For these reasons, I cannot join in the majority’s refusal to allow Thompson to file a petition for writ of habeas corpus.
In closing, I would observe that the miscarriage of justice that is about to occur is the product of the federal judiciary’s elevation of procedure over justice, of speed and efficiency over fairness and due process. I regret that we have chosen that course in recent years, and believe that in doing so, we have severely tarnished our nation’s justice system. It is the courts that should engender in all of the people an enduring commitment to liberty and fairness. That commitment will surely not be inspired by this case and others like it. I respect the majority’s decision. However, I believe that my colleagues have made a most serious error. We not only have the power to allow Thompson to have a full and fair hearing before he is executed, but an obligation to do so. I would grant his request for leave to file a second or successive petition.
*938TASHIMA, Circuit Judge,concurring in part, and dissenting in part:
I concur in Parts I, II, III and IV of the majority opinion; however, I dissent from Part V. I also agree with Judge Reinhardt’s trenchant analysis as to why we should grant Thompson’s motion to file a second habeas petition.
28 U.S.C.§ 2244(b)(2) provides that a successive habeas claim “shall be dismissed unless” the conditions of subsection (B)(i) and (ii) are met. Thus, this is a standard that should be applied at the end of the fact-finding process, not its beginning, as the majority does. By contrast, § 2244(b)(3)(C) requires only “a prima facie showing that the application satisfies the requirements of this subsection” in order to authorize the filing of a second or successive application.
“Prima facie showing” may have several shades of meaning, but, where eventual submission to a fact finder is- contemplated, it means nothing more than that the evidence, if believed, would entitle the applicant to relief. Otherwise, § 2244(b) (2) (B )(ii) would not contain the phrase “if proven.” As Judge Reinhardt’s summary of the newly-discovered evidence . convincingly demonstrates, Thompson has made a “prima facie showing” that his claim, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Thompson] guilty of the underlying offense” of capital homicide. The majority’s error is in assessing credibility and weighing the evidence as if it were the fact finder at the evidentiary hearing, rather than confining itself to determining whether, if believed, the evidence presented amounts to a prima facie showing. ■ =
Because I believe that Thompson’s motion for an order authorizing the district court to consider a second or successive application should be granted, I dissent from Part V of the majority opinion and from the judgment.
. These seven included the draftsman of the death penalty statute under which ¡Thompson was prosecuted and the individuals who , served in positions in which they made final decisions about whether to seek the death penalty in all Los Angeles County cases (for a period of twelve years) and all Sacramento County cases (for over six years). These experienced prosecutors urged Supreme Court action because “this is á case where it appears that our adversarial system'has not produced a fair and reliable result..*..” Brief of Amici Curiae in Support of Petitioner at 4-5, Thompson v. Calderon (No. 96-8707) (filed May 6, 1997).
. The Supreme Court decision reversing our judgment did not reach the merits of Thompson’s constitutional claims. See Calderon v. Thompson, -U.S.-, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Instead, in a five to four decision, the Court adopted new rules limiting even further the right of habeas corpus and restricting in an unprecedented manner the authority of federal courts to recall their mandates to correct constitutional errors. But cf. Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (granting relief under Rule 60(b)(5) from twelve-year-old injunction barring school district from sending public school teachers to parochial schools for remedial educational services); 521 U.S. at -, 117 S.Ct. at 2026 (Ginsburg, J., dissenting). On the basis of a rule newly adopted in Thompson, the Court held that we ' should not have reached the merits of Thompson's claims.
.The district judge who originally correctly determined that Thompson’s trial had been constitutionally flawed after painstakingly studying the entire record of the trial for several years, died prior to the time Thompson filed his motion based on newly discovered evidence. A new district judge first determined that he had no jurisdiction over the motion and then, as a protective measure, summarily ruled against . Thompson on the merits of his claim on the basis of credibility determinations made without the benefit of witnesses or live testimony.
. At Thompson’s trial, the prosecution put on evidence that Thompson had raped and murdered Fleischli, that Leitch was not present, and that Leitch's only involvement was to help dispose of the body. At Leitch's trial, the same prosecutor argued that Leitch was present and that he was an active participant in Fleischli's murder — and suggested that the version of events it had established at the first trial was inherently implausible.
. At the time of the preliminary hearing, Leitch and Thompson were to be jointly tried. The prosecution put on jailhouse informants who testified that Thompson had confessed to them that Leitch had recruited him to commit the killing. One informant testified that Thompson had told him that he had engaged in intercourse with Fleischli, but had not raped her. By the time of the trial, the two cases had been severed, and the . prosecution abandoned its original theory along with the first group of jailhouse informants, .whose testimony no longer served its purpose; instead, the prosecution now pursued a different theory, that Thompson had raped and murdered Fleischli on his own, and supported this theory with a new set of demonstrably unreliable jailhouse informants who told a new tale of what Thompson had supposedly admitted that was consistent with the prosecution's new and con-, tradictoiy theory.
. That evidence includes the fact that Thompson took the stand and, we must presume, lied about the murder. As the Supreme Court pointed out, that fact makes it difficult for Thompson to persuade the jury that he was innocent of the rape charge. It also makes it even more important that the only percipient witness's story be considered before we execute a man for an offense he probably did not commit.
. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
. This is particularly so when the injuries and other physical evidence that the Supreme Court found to be "ample evidence" of rape could also have been sustained by Fleischli during the murder itself.
. The government claims that Owens' later declaration clarifies that the source of this version of events was not Leitch himself but jailhouse informant David Vogel. Such an explanation is highly unpersuasive. Vogel's statements are not consistent with the version of events described by Owens — and Vogel therefore could not be the source of Owens' information. Vogel testified that Thompson, not Leitch, told him that Leitch walked into the apartment after Thompson and Fleischli had finished having sex, not while they were so engaged. Since the account that Leitch walked in and discovered his roommate and Fleischli in the midst of intercourse could in all likelihood only have come from Leitch himself, there remain critical unanswered questions about the source of Owens’ information. Moreover, Owens’ retraction of many of the statements he made to defense investigators should not be accepted as credible without adversarial testing.
. Again, that Leitch suggested later in the same hearing that the reason Thompson had killed Fleischli must have been “rape” raises a question as to whether the earlier statement that is contrary to Léitch's own interests or the later statement that tends to be self-exculpatory is the truthful one. How these conflicting statements would be resolved after a full adversary eviden-tiary hearing is not before us. We are now at a prima facie stage of the proceedings. For that purpose, Leitch's admissions present a most serious question and constitute a sufficient showing.
. 28 U.S.C. § 2244(b)(2)(B)(i) requires that Thompson demonstrate he could not have discovered the factual predicate for his claim through the exercise of due diligence. Because the government did not disclose Leitch’s statement to the defense, they had no reason to interview Owens about what he might have heard. Leiteh, who was facing his own trial on murder charges, was unlikely to have voluntarily spoken with Thompson’s defense; in fact, as late as 1992 he refused to cooperate with their efforts to obtain critical information from him. Due diligence therefore would not have uncovered this information in time for Thompson’s first habeas proceeding. In any event, one year ago the California Supreme Court found that Thompson had presented this evidence in a timely manner. In re Thomas Martin Thompson on Habeas Corpus, No. S062592 (Cal. filed July 16, 1997).
. It seems fairly apparent that this failure to disclose evidence that was material to Thompson’s guilt or punishment violates the prosecution’s duty under Brady v. Maryland, 373 U.S. 83, 87, 108, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Brady duty is an ongoing one, and continued to bind the prosecution throughout Thompson’s habeas proceedings. See Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir.1992). A prosecutorial violation of Brady would fulfill 28 U.S.C. § 2244(b)(2)(B)’s requirement of constitutional error.
.The district court found that it had no jurisdiction but, in dicta, assumed that it could treat the motion as a successive habeas petition not subject to the requirements of the AEDPA. It was in that context that it made the findings of fact referred to here. I treat these findings for purposes of this dissent as if they were valid. I do not question the district court's decision to answer as many potential questions as possible when it did, in light of the incredible time constraints under which we are compelled to operate in death penalty c;4ses.
. Michael Jacobs, the district attorney who prosecuted both Leitch and Thompson, has explained that Leitch's statement which exculpates Thompson could be very damaging to Leitch himself:
Jacobs: It would have been a great statement for me to have if I could have used it against Leitch at this trial. I would really like to have that statement. So^—
Question: To have him saying that he saw consensual sex and not a rape?
Jacobs: Oh yeah, as far as Leitch’s trial, then I could have put him back there before the killing took place and he would have been in deep trouble then. Like if I could have got him on the stand to say that in 1983 it would have been the best thing that could have happened to my case, against Leitch. I would have give anything to have that statement or have him testify to that. So that would have — So, see that would have been a plus for the prosecution of Leitch.
Transcript of Radio Interview, Which Way, L.A.?, July 22, 1997.