concurring in the Order of Remand, in which
DAUGHTREY, COLE, and CLAY, Circuit Judges, join.The most gentle characterization I can offer of the dissents of Judge Boggs and Judge Suhrheinrieh is that they constitute a fanciful exegesis that bears little relationship to the facts of this case or the requirements of the law. Each dissenter accuses the en banc majority of “lawless” actions or of acting without a lawful basis. Accordingly, even though I am not a member of the en banc court, as is true of Judge Suhrheinrieh, with no vote on the issue at hand, as is also true of Judge Suhrheinrieh, I am nevertheless compelled to write this response to correct statements and impressions conveyed by the dissents.
A reference to a statement in Judge Suhrheinrich’s dissent illustrates the point. It states: “To date, Judge Jones has not written a dissent that sets forth his legal reasoning.” In re Byrd, No. 01-3927, order of remand, at 596 (6th Cir. Oct. 9, 2001) (Suhrheinrieh, J. dissenting). Such *587a charge is intended to convey the impression that the en banc court, in reacting to my dissent, did so without the benefit of a written opinion. In fact, I circulated to the full en banc court a twenty-six page dissenting-opinion, that set forth, in a comprehensive manner, the legal justification for the action the en banc court decided to take. I should note that part of the opinion included a lengthy discussion of the jurisdictional basis for the court’s actions. In light of the dissents, I reiterate the portion of my dissent that relates to the jurisdiction of the court to remand this case in order to develop a factual record, a record the state courts refused to make.
Notwithstanding the obfuscation and manipulation of the issues by the dissenters, what compelled the en banc court to issue the Order of Remand is simple. When a habeas petitioner wishes to file in the district court a second or successive habeas petition, AEDPA requires that he first obtain authorization from the federal court of appeals.1 Congress, therefore, vests in the appeals court a statutory duty to determine whether to authorize a second bite at the habeas apple. The statute then lays out various requirements the petitioner must satisfy before the court can certify the second or successive petition.2 If the petitioner is unable to satisfy the statutory requirements of the AEDPA, the court of appeals may yet authorize a second or successive filing if the court deems that this is necessary to prevent a miscarriage of justice.3 There is no disagreement on the court that Petitioner Byrd does not satisfy the statutory filing requirements of the AEDPA. However, a majority of judges in active service have agreed that the court is without an adequate factual record to determine whether a second filing is warranted under the miscarriage of justice exception. Therefore, a majority of the en banc court has remanded the case for a hearing on the evidence supporting Byrd’s claim that he is entitled to file a second petition under the statutory exception.
Byrd has presented to this court the confession of an accomplice, John Brewer, that it was Brewer, not Byrd, who murdered Monte Tewksbury. The Order of Remand was compelled by the fact that a majority of active judges, comparing the *588statements in the confession to supporting facts in the record, agree that this evidence of actual innocence potentially satisfies the miscarriage of justice exception and likely warrants a second habeas action. The impediment to the court so ruling was the fact that the Ohio courts have repeatedly refused every request for discovery and an evidentiary hearing on the Brewer confession.4 Obviously, the lack of a factual record on such potentially exculpatory evidence was no impediment for the panel majority. The panel, over my dissent, wrongly refused Byrd’s request for authorization to file a second habeas petition, turning a blind eye to serious gaps in the record. The centerpiece of the dissents to the Order of Remand is the argument that the en banc court was powerless to order a rehearing to correct the panel’s erroneous decision.
The view that the en banc court lacked jurisdiction to consider the panel majority’s adverse decision reads into the AED-PA a meaning the plain text of the statute does not support. The statute prohibits an authorization decision from being “the subject of a petition for rehearing.” 28 U.S.C. § 2244(b)(3)(E). This court, in In re King, 190 F.3d 479 (6th Cir.1999) extended the reach of the statute to preclude not only petitions for rehearing but also petitions for rehearing en banc.5 Nevertheless, AEDPA did not alter the authority of the en banc court to order a rehearing on its own motion. In Triestman v. United States, 124 F.3d 361 (2d Cir.1997), the Second Circuit observed that the federal courts of appeals retain the power to order a rehearing sua sponte.
“[Notwithstanding the restrictions on appealability in § 2244(b)(3)(E), this court has the authority to order a rehearing sua sponte. It is well-established that a court of appeals is entitled both to reconsider a prior decision sua sponte ... and to order a rehearing sua sponte (citations omitted). By mandating that the initial decision of the court of appeals ‘shall not be the subject of a petition for rehearing’ (emphasis in original), § 2244(b)(3)(E) provides only that a disappointed litigant may not ask the court to reconsider its certification decision. By its plain terms, it does not purport to limit the court’s own power to review its decisions or to undertake a rehearing.”
Id. at 367. In dissent, Judge Boggs argues that notwithstanding the emphatic language of the court in Triestman, the case is not on point because it involved a sua sponte order of a three-judge panel rather than, as in Byrd’s case, the full en *589banc court. In re Byrd, No. 01-3927, order of remand, 269 F.3d 585, 594 (6th Cir.2001) (Boggs, J. dissenting). Remarkable! This fact is hardly a basis on which to distinguish Triestman. Rather, the fact that a majority of active judges agrees that a rehearing is necessary serves only to reinforce the fact that the court acts completely within the law.
The Second Circuit is not alone in this interpretation of the statute. In United States v. Lorentsen, 106 F.3d 278 (1997), the Ninth Circuit adopted the view of the statute articulated in King that AEDPA bars petitions for rehearing en banc. One year later, the Ninth Circuit decided Thompson v. Calderon, 151 F.3d 918 (1998), in which the court followed the Triestman analysis that “the language [of § 2244(b)(3)(E)] does not preclude sua sponte review by an en banc court. It merely precludes the parties from seeking a rehearing.” Id. at 922. The Ninth Circuit had no difficulty rejecting the flawed analysis advocated in the dissents. Neither did a majority of active judges on this court. Indeed, even the Supreme Court has acknowledged this distinction when interpreting an analogous section of the statute. The Supreme Court in Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), examined the language of § 2244(b) which limits the authority of the federal courts to entertain abusive or successive petitions.6 The Court did not hesitate to affirm the view that the federal courts retain the authority to hear even abusive or successive applications sua sponte. “As a textual matter, § 2244(b) applies only where the court acts pursuant to a prisoner’s application.” Calderon, 523 U.S. at 554, 118 S.Ct. 1489.
To be sure, § 2244(b) does not permit the court to entertain a petition for rehearing en banc under the guise of acting sua sponte. The question is whether , the court, though it purports to act sua sponte, entertains the merits of the second habeas petition. If the court were to grant some form of substantive habeas relief or take other action on the basis of new claims or evidence in the second habeas petition, the court would subvert AEDPA by granting relief on the basis of claims that failed to satisfy the requirements of § 2244(b)(2). The Court in Calderon, held that this is impermissible.
“[If] the court considers new claims or evidence presented in a successive application for habeas relief, it is proper to regard the court’s action as based on that application. In these cases, [AED-PA] applies irrespective of whether the court characterizes the action as sua sponte.” (emphasis added)
Id. at 554, 118 S.Ct. 1489. At the outset, there is simply no logical way one can think of the § 2244(b)(3)(A) request for authorization itself as a successive application for habeas relief. Nevertheless, Judge Boggs manages to do just that. In his dissent, Judge Boggs writes that “[Byrd] filed a document that does not admit to being a second or successive ha-beas. The panel ruled that it was.” In re Byrd, No. 01-3927, order of remand, 269 F.3d at 594 (6th Cir.2001) (Boggs, J. dissenting). No, it did not. The panel decided that it was appropriate to treat Petitioner Byrd’s “Motion [to] Determine Whether § 2244 of AEDPA Applies in His Case” as a request for leave to file a *590second petition in the district court.7 Judge Boggs’ failure to properly identify the motion before the court is critically important because, as Calderon teaches, the lawfulness of the court’s sua sponte order turns on whether the Order of Remand was based on new claims or evidence in Byrd’s second habeas petition. That the remand does not rest on Byrd’s second habeas action is obvious from the simple fact that, at present, the court has not granted leave to file a second habeas petition. As a result, none of the substantive claims for habeas relief, including a Massiah claim regarding Byrd’s Sixth Amendment right to counsel, a Brady claim regarding the deliberate use of false evidence against him, and a claim of ineffective assistance of counsel, were properly before the court under § 2244(b)(3)(A).
Even so, a keen eye might observe that Byrd’s evidence of actual innocence forms the basis of both his request for authorization under § 2244(b)(3)(A) and the actual habeas petition he seeks to file. It is indeed true that the Brewer affidavits, in which Brewer confesses to the murder, appear in both instruments, and the en banc court did well to consider the importance of the confession as a basis for the Order of Remand. However, the remand remains on the safe side of the distinction drawn in Calderon because in the request for authorization, the actual innocence claim does not function like a substantive claim for relief as in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).8 Instead, it functions as a “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim heard on the merits.” Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), i.e., it functions to satisfy the miscarriage of justice exception to the AEDPA filing requirements. The court does not act on the substantive merits of claims in the habeas petition, therefore, the Order of Remand is consistent with the rule in Calderon.
I conclude with one final observation on the points raised in the dissents. The key to understanding the legitimacy of the Order of Remand is to remain cognizant of the two roles the court must fulfill under AEDPA and in habeas matters generally. With AEDPA, Congress creates for the court a statutory duty to refuse or permit the filing of successive habeas petitions in the district courts. Whether the court has properly discharged its duty under AED-PA remains a hotly contested issue among some members of the court. I submit that the just and lawful course of action in this case involving Petitioner Byrd becomes increasingly clear when the court is mindful that its duties under AEDPA are designed to facilitate the court’s larger responsibility to see to it that the rights of citizens under the Federal Constitution are not disparaged in state criminal proceedings. Were the dissenters mindful of this basic role of the federal courts in habeas matters, they would be uncomfortable with the fact that the Petitioner has been, at every turn, refused an opportunity to test in open court what a majority of active *591judges on this court agrees is potentially exculpatory evidence of actual innocence.
The response from the dissenters is that Byrd has shuttled back and forth between the state and federal courts for some eighteen years. There is no disagreement on the court that he has. But, this fact is important only insofar as it explains why Byrd is unable to show cause for failing to raise his claim of actual innocence in his first federal habeas petition. It means nothing with respect to whether the Brewer confession is persuasive evidence of actual innocence that would entitle Byrd to a second opportunity to make his claim for habeas relief. The state courts of Ohio wasted an opportunity to bring all interested parties closer to fairness and finality in this matter by refusing out of hand and with no justifiable rationale Byrd’s request for discovery and a hearing on this specific claim. The en banc court agrees with the view in Burris v. Parke, 116 F.3d 256 (7th Cir.1997) that in these circumstances, a federal court does well when it refuses to rubber-stamp such inadequate proceedings in the state court on a habeas claim. Otherwise, “a state could insulate its decisions from collateral attack in federal court by refusing to grant evidentiary hearings in its own courts.” Id. at 259.
Notwithstanding the assertion of Judge Suhrheinrich, the en banc court is no more interested in obstructing the lawful imposition of the death penalty in this Circuit than is Judge Suhrheinrich in curtailing the rights of habeas petitioners in the federal courts. In re Byrd, No. 01-3927, order of remand, at 596 (6th Cir. Oct. 9, 2001) (Suhrheinrich, J. dissenting). We differ, apparently, with regard to the means that are necessary to fulfill our statutory and constitutional responsibilities as a federal court entertaining a habeas matter. The Order of Remand reflects the manifest resolve on the part of a majority of active judges on this court to discharge these duties to the fullest.
. The statute reads: "Before 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).
. The statute further provides that: "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a pri-ma facie showing that the application satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C). Specifically, the petitioner’s claim shall be dismissed under § 2244(b) unless he demonstrates that his claim “could not have been discovered previously through the exercise of due diligence,” or that the claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(2)(A) & (B).
.The actual innocence/miscarriage of justice exception is articulated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), in which the court held that a prisoner who fails to satisfy AEDPA filing requirements for a successive habeas petition "may obtain review of his constitutional claims only if he falls within the ‘narrow class of cases ... implicating a fundamental miscarriage of justice.’” Id. at 314-15, 115 S.Ct. 851. See also, McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), holding that “[i]f a petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from the failure to entertain the claim.” Id. at 494-95, 111 S.Ct. 1454.
. In my statement, circulated to the full en banc court, I set forth the reasons why Petitioner Byrd is entitled to an evidentiary hearing under § 2254(e)(2). That section provides that "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evi-dentiary hearing” unless the prisoner meets various statutory exceptions.
Again, I observe that the references to evidence Byrd withheld from his first federal habeas petition, while they serve to explain why he cannot show cause for abuse of the writ, are unimportant for the purposes of whether he is entitled to a hearing under § 2254(e)(2). The all-important observation is that, once it was in his possession, Byrd made every attempt to come forward with his evidence of actual innocence, i.e., the Brewer confession, in his state post-conviction proceedings. The record is clear: the state trial and appellate courts refused Byrd’s every request for discovery and an evidentiary hearing on his claim of actual innocence.
. Specifically, the court held that "once a panel of this court grants or denies an individual permission to file a second or successive petition in the district court, § 2244(b)(3)(E) prohibits any party from seeking further review of the panel’s decision, either from the original panel or from the en banc court.” In re King, 190 F.3d at 479.
. Section 2244(b)(1) provides: "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” Likewise, § 2244(b)(2) provides:
"A claim presented in a second or successive application under section 2254 that was not presented in a prior application shall be dismissed” unless various exceptions are applicable. 28 U.S.C. § 2244(b).
. In its September 11, 2001 Revised Order, the panel majority states that "[h]owever cast, Byrd is seeking the permission required by 28 U.S.C. § 2244(b)(3)(A) to file a second habeas petition.” Order filed September 11, 2001 in Case No. 01-3927, 269 F.3d 561, 563, n. 1.
. The Supreme Court recognized in Herrera that a prisoner's claim of actual innocence functions as a substantive constitutional claim for habeas relief. The Court noted that "in a capital case a truly persuasive demonstration of 'actual innocence1 made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” Id. at 417, 113 S.Ct. 853.
. The statute makes a distinction between an “application” and a "motion.” See 28 U.S.C. § 2244(b)(3)(A) and 28 U.S.C. § 2244(b)(3)(E). An "application” is essentially a habeas corpus petition. See Liebman and Hertz, Federal Corpus Practice and Procedure 28.3d § 1992. Here, the Court is acting pursuant to its authority to rehear matters en banc sua sponte. Regardless, there is presently no application before this Court; we are vacating the decision of the three-judge panel based upon Petitioner’s motion under § 2244(b)(3)(A), seeking authorization to file a successive habeas petition.