Dissenting.
The majority opinion expresses clear disdain for the fact that the AEDPA’s statute of limitations bars Kelly from filing a first habe-as petition. Unfortunately, the statute of limitations is the law.
First, the majority finds that all five factors enumerated in Bauman v. United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir.1977), counsel against the issuance of mandamus. However, this is no ordinary mandamus action. Kelly TV was simply an action to enforce the mandate of Kelly III, a decision the District Court chose to ignore. It is horn-book law that mandamus “is available to a party who has prevailed in this Court if the lower court does not proceed to execute the mandate, or disobeys and mistakes its meaning.” Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427, 98 S.Ct. 702, 54 L.Ed.2d 659 (1978); see also Citizens National Trust & Savings Bank of Los Angeles v. United States Dist. Ct., 215 F.2d 799, 800 (9th Cir.1954) (holding that a petition for mandamus is appropriate where the District Court “violated the plain provisions of our mandate”).
The real issue is whether the District Court did or did not violate this court’s mandate. While the majority deems this issue “most complex,” the simple fact is that the District Court allowed Kelly to file a habeas petition after this court held that such a petition was time-barred. I can conceive of no clearer violation of this court’s mandate. The majority concludes that Kelly should not be precluded from filing a habeas petition because res judicata does not apply to habeas petitions, but as the panel decision made clear, “[Kelly’s] prior cases did not involve true habeas corpus petition proceedings. He never got that far.” Calderon v. United States Dist. Ct. (Kelly), No. 98-70569, 1998 WL 309923, slip op. at 5996 (9th Cir. June 9, 1998) (“Kelly TV”). Allowing Kelly to file a habeas petition after this court held he could not flagrantly undermines any respect for the finality of this court’s judgments.
The majority also makes much of the fact, in its discussion of “abuse of the writ,” that it was the state that selected the issues to be decided in Kelly III’s mandamus proceeding. This fact is wholly irrelevant. Res judicata “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir.1985) (emphasis added). There is no indication that any of the defenses to the statute of limitations were unavailable at the time of Kelly III. Kelly cannot and should not be allowed to “sandbag” the judicial process by withholding defenses and presenting them seriatim whenever he requires a delay of his execution.
While I dissent from the entire opinion as it stands, I wish to point out that the portion of the opinion from which I dissent above is in fact dictum. The majority does not use its carefully crafted (but misguided) interpretation of res judicata and abuse of the writ in order to provide Kelly with a new basis for equitable tolling of the statute of limitations. Instead, the majority simply goes on to hold that the statute of limitations does not apply to Kelly at all. This holding does not depend upon the application of res judicata or abuse of the writ but upon the majority’s misapplication of a recent Supreme Court case.
The majority employs an overbroad interpretation of the Supreme Court’s opinion in Hohn v. United States, — U.S. -, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), to overrule Kelly TV, Kelly III, and ultimately a portion of Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1287 n. 3 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998). At the heart of the majority’s error is its unreflee-tive act of equating the word “case” as used in Hohn with the word “case” as used in Beeler; the words may appear the same, but their meanings are vastly different.
*545In Hohn, the Supreme Court decided whether a court of appeals decision denying an application for a certificate of appealability under 28 U.S.C. § 1253(e) constituted a “case” for purposes of Supreme Court jurisdiction under 28 U.S.C. 1254 and the “case or controversy” requirement of Article III. See — U.S. at-, 118 S.Ct. at 1972. In Beeler, on the other hand, this court decided that a request for appointment of counsel and stay of execution did not constitute a habeas “case” for purposes of the AEDPA’s, statute of limitations. Hohn was therefore using the word “ease” to interpret whether the Supreme Court had jurisdiction while Beeler was using the word “case” to interpret whether a statute of limitations had run. This distinction is crucial.
Beeler expressly held (a holding that the en banc majority does not disturb) that the AEDPA’s statute of limitations was not jurisdictional. 128 F.3d at 1287-89. Indeed, the availability of equitable tolling, which the majority recognizes, depends upon the fact that the AEDPA’s statute of limitations is not jurisdictional. See id. Thus, Hohn’s use of the word “case” cannot overrule Beeler’s use of the word “case” because the two courts were using this word in completely different contexts to mean completely different things.
Even if Hohn and Beeler were using the word “case” to mean the exact same thing (which they were not), the cases are so factually distinguishable as to belie the argument that one “has vitiated” the other. In Hohn, the Supreme Court merely stated that a habeas corpus petition that had been ruled upon in the District Court but denied a certificate of appealability remained a ease for purposes of a petition for certiorari. The case before us deals with a request for counsel and a stay of execution where no habeas petition had been filed, and thus there was nothing that could “remain” a case.1
The majority overlooks another underlying rationale in Hohn: that a certificate of ap-pealability involves adversity. See — U.S. at-, 118 S.Ct. at 1972. By overlooking this rationale, the majority can in conclusory fashion state that a petition for appointment of counsel accompanied by a motion for a stay of execution is a “case,” even though indigents have the mandatory right to counsel under 21 U.S.C. § 848(q)(4)(B), see McFarland v. Scott, 512 U.S. 849, 854, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), and a stay of execution will usually be granted to allow counsel “meaningfully to research and present a defendant’s habeas claims.” Id. at 858, 114 S.Ct. 2568. Because the request for counsel and a stay did not involve true adversary proceedings, I would hold that, even if Hohn’s definition of a “case” applied to the proceedings before us (which it does not), no such case had been initiated before the statute of limitations expired.
For the reasons above, I respectfully dissent.
. The majority, in a judicial sleight-of-hand that also undermines the AEDPA’s statute of limitations, holds that this court may deem the habeas petitions filed after the AEDPA's effective date as having been filed nunc pro tunc before that date in order to avoid reaching the issue of equitable tolling. See n.7, supra. This does not change the fact, however, that when the request for counsel and stay of execution were made, no habeas petition had been filed.