concurring.
I continue to believe that this Court correctly affirmed the District Court’s denial of this successive petition for habeas corpus. My reasons have been stated and need not be repeated here. Walker v. Lockhart, 726 F.2d 1238, 1250-52 (8th Cir.) (en banc) (concurring opinion), petition for cert, filed, 52 U.S.L. Week 3862 (U.S. April 1984) (No. 83-1835). The motion for recall of mandate, however, presents a new situation requiring, in my judgment, a somewhat different result.
The predicate of my concurring opinion was that there had been no change in the law, and that no new evidence had appeared, since this Court’s affirmance of the denial of the first habeas petition. The motion for recall of mandate demonstrates that this predicate may no longer be valid. In particular, the motion details certain new evidence that petitioner wishes to offer. This evidence has never been heard by any court, state or federal. The most significant item of new evidence is a diary purportedly written by Russell Kumpe, the driver of the automobile in which Walker was riding on April 16, 1963, the night Officer Vaughan was killed. The diary entry for January 16, 1968, we are told, reads in pertinent part as follows:
Awakened at 1:30 a.m. by nite sheriff, told only to go to Mr. O’s Office — emergency. A great deal of agitating being *1266done by James Dean Walker. I look at him and feel much remorse that I fired too high 4-16-63. He, according to rumor has vowed he will kill me at first opportunity. I do not underestimate his potential, but am not alarmed.
In addition, counsel offered to prove by Kumpe’s former wife that Kumpe twice admitted to her that he, not Walker, had shot the officer.
There was evidence previously available that Kumpe was armed on the night in question, and an inference could have been drawn from the testimony of Aaron Paul Alderman at the first habeas hearing that Kumpe fired the fatal shot from under the car in which he and Walker had been riding. The evidence cited above, however, is the first solid indication that Kumpe in fact fired his gun on the night in question, and, if believed by the trier of fact, it would greatly increase the chance that Alderman’s account, which exonerates Walker, would also be believed.
The State’s principal response is that Kumpe’s diary and his alleged statement to his former wife are both hearsay and could not be admitted in evidence at any new trial. Accordingly, it is argued, their existence cannot affect the question whether such a new trial should be held. I am inclined to believe that the State’s point is well taken, in the sense that the diary and the alleged statement probably would not be admissible as substantive evidence. Certainly they are hearsay and would come in only if they could be fit within the exception for declarations against interest. Uniform R. Evid. 804(b)(3), adopted by Ark. Stat. Ann. § 28-1001. (Repl. 1979), creates a hearsay exception for declarations against interest when the declarant is unavailable. Kumpe is not unavailable. He could be called as a witness (though he never had been before). Possibly he would invoke his privilege against self-incrimination and refuse to testify, in which event he would be treated as an unavailable witness, see Unif. R. Evid. 804(a)(1), but even so Rule 804(b)(3) would probably still keep the hearsay out, because under this rule a “statement tending to expose a declarant (here Kumpe) to criminal liability and offered to exculpate the accused is not admissible unless corroborrating circumstances clearly indicate the trustworthiness of the statement.”
Even if we assume that the hearsay could not come in as substantive evidence, however, it would probably still get before the jury in some form for purposes of impeachment. Kumpe could be called as a witness and asked wheter or not he shot Vaughan. If his answer is no, he could then be asked whether he had made the alleged statements to his former wife, and whether he had made the claimed diary entry. If he admits the diary entry and the statements to his former wife, the fact of these prior inconsistent statements would then be before the jury, together with whatever explanation Kumpe might wish to offer. If, on the other hand, he denies making the alleged prior inconsistent statements, extrinsic evidence of these statements, including the diary itself and the testimony of Kumpe’s former wife, could be offered for impeachment purposes. See Jones, Case Note, Roberts v. State: A Limitation on the Impeachment of Witnesses by Extrinsic Evidence of Prior Inconsistent Statements, 37 Ark. L. Rev. 688 (1984). In either event, the jury would know about the diary entry and the alleged oral admissions. It would have an aoppor-tunity to observe Kumpe in person and to assess his credibility in ilght of all the circumstances, including the prior inconsistent statements. Ordinarily, newly discovered evidence is not sufficient to justify new proceedings if it goes only to the credibility of a witness, but this ease is so evenly balanced that this sort of impeachment of Kumpe’s credibility could well be decisive in the mind of the jury. (It is worth recalling at this point that Alderman, like Kumpé, has never been heard by a jury.)
The State also responds that Walker himself has confessed to the crime, and that to give a new trial to someone who admits he is guilty cannot serve “the ends of justice.” The text of this confession, first brought to this Court’s attention by Walker’s own motion for recall of mandate, is attached to the State’s response to the motion, and its authenticity foes not seem to be denied. The statement, which was tape-recorded, was given while Walker was in jail after having been convicted and sentenced to death at his first trial. The statement was apparently intended to be played to church congregations to show Walker’s conversion and repentance. The statgement says, among other things:
*1267I had committed I can say, ah, every sin imaginable * * * stealing up to adul-ter, fornication * * * murder, even.
Yes, I know it’s hard on you to take a life * * * Her [Mrs. Vaughan’s] husband’s dead and that in some way, I don’t know how, I would like to tell her that * * * I know “I’m sorry” doesn’t say very much, but * * * that’s how * * * it’s a terrible thing to have happen.
As Walker’s reply to the State’s reponse points out, this statement was available to the State at the time of the second trial and was not offered in evidence. Perhaps the State thought it did not need the evidence. Perhaps it thought the playing of the tape would offend someone’s religious sensibilities. For my part, the statement appears to be strong evidence indeed against Walker’s protestations of innocense. His reply does not deny that he made the statement and does not contest the accuracy of the text appended to the State’s response. But there could be some explanation that a trier of fact might accept. This again is an issue appropriately to be decided, in the first instance, by a trial court, not by us. It should be observed, in additon, that the taped statement is not newly discovered evidence in the same sense as the Kumpe statements are. The taped confession is new to us, having never been offered into evidence before in any court, but it is not new to the parties.
My conclusion, on balance, is that the new material presented to this Court in the motion for recall of mandate sufficiently adds to the uncertainites of this case to justify additional proceedings. In my view, these proceedings should take the following shape. This case should be remanded to the DistrietCourt with directions to hold a new evidentiary hearing. This hearing would include the receipt of the new evidence mentioned by both sides in their papers with respect to the recall of mandate, including the Kumpe statements and the recorded confession of petitioner. The District Court should determine whether any of this evidence is credibile enough to deserve the attention of a jury; whether the evidence would be admissible if a new jury trial were held; and whether the new evidence, when considered against the background of the existing record, sufficiently tips the balance of the “ends of justice” standard to require that a new trial be held. These findings should then be certified to this Court, sitting en banc, which can then consider, after briefing and oral argument, whether the new evidence, in the light of the District Court’s findings, requires a new trial.
On remand, the question may arise whether the newly discovered evidence should first be presented to the state courts before being considered by the federal habeas court. I think the answer to this question is no. We have heard no new federal ground asserted for setting aside the judgment of conviction. The same grounds continue to be asserted, primarily the prejudice of the trial judge. The new evidence, rather than constituting a new ground for attack on the conviction, goes to the question whether the factual basis for the conviction is so unsure that a successive habeas petition should be granted. This issue is for the federal habeas court to decide. (The State, in any case, has not argued that failure to exhaust state remedies is a problem here, so the point has appreantly been waived. See Pickens v. Lockart, 714 F.2d 1455, 1458 n.2 (8th Cir. 1983).
Certainly recall of mandate is an extraordinary remedy. There seems to be nothing ordinary about this case. Under 8th Cir. Rule 18, a mandate may be recalled “to prevent injustice.” I think that is the situation presented here. To be sure, a denial of the motion for recall of mandatt would not forever bar consideration of the new evidence now proof fered. Walker could still file a third habeas petition and start anew in the District Court. Thisalternative would probably involve more cost and more time in a case that has already consumed too much of both. The third habeas petition might even be assigned to a different district judge, which would be a waste of the considerable time and effort already invested in the case by Judge Woods. Probably this case will never be settled to everyone’s satisfaction, but the State as well as the petitioner will be well served by attemptiong to settle it finally as soon as possible.
For these reasons, I vote to grant the motion for recall of mandage and to remand the cause for further proceedings outlined in the order of the Court.