dissenting from the Order of Remand, in which BATCHELDER, Circuit Judge, joins.
In the latest twist in this case, a majority of the En Banc Court has now voted to sua sponte remand this case for “for the development of a factual record sufficient to permit a consideration of a petition to file a second habeas corpus petition,” a “procedure” which is not found in the AEDPA. While that procedure is without legal support, the En Banc Court continues what this writer feels is a lawless course of action.
It is important that we retrace several critical steps that put us in this predicament. First, on the evening of September 10, 2001, there is a secret vote by a majority of the En Banc Court to grant Judge Jones thirty days to prepare a dissent to the original panel decision denying Byrd permission to file a second habeas petition. To date, Judge Jones has not written a dissent that sets forth his legal reasoning.
Next, on September 12, 2001, Byrd files a petition for rehearing en banc, raising two issues: First, “Does the En Banc Court have jurisdiction to review the panel’s denial of Byrd’s application to file a second habeas petition?” Second, “Assuming pre-AEDPA law applies, has Byrd provided clear and convincing evidence of his *597actual innocence such that his abuse of the writ should be excused and he should be allowed to file a second petition?” These questions have not yet been answered, nor has there been any indication by the En Banc Court that it is even going to entertain the petition.
On September 26, 2001, Byrd files a “Motion For Leave to File a Motion Requesting Referral of His Case to a Special Master Pursuant to FRAP 48.” It states in pertinent part that “this Court sits less as an appellate court and more as a fact-finder on the actual innocence claim.” Not only did Byrd’s attorney jump the gun in filing this motion, but he is clairvoyant because a majority of the En Banc Court thereafter adopts his suggestion in their “sua sponte” remand order. On September 27, 2001, at the request of Judge Jones, a poll for granting of the en banc petition was made, and a voting ballot was issued. On September 28, 2001, Judge Jones files a “clarification of his request for en banc vote,” where he advocates that the En Banc Court should “sua sponte remand for the development of a factual record sufficient to permit a consideration of a petition to file a second habeas corpus petition.”
Instead of ruling on Byrd’s petition for rehearing and openly assuming control of this case, on October 4, 2001, a majority of the En Banc Court agrees to the sua sponte remand for fact finding. So as of today, the En Banc Court has fired the panel and taken over this case sua sponte. At the same time, they have not adopted a dissent to the panel decision, as there has been none, nor have they given the panel majority any guidance as to how they misinterpreted the law.
The majority makes no mention of the fact that the so-called “actual innocence” affidavit of co-defendant John Brewer has been available since 1989 and has been hidden from the courts by Byrd’s attorneys. It is hard to determine the reason for these attorneys’ unethical behavior; if indeed Byrd is “innocent,” why put the state courts, and the federal judiciary, including the United States Supreme Court, through years of litigation, when presumably the En Bane Court would find him innocent? Furthermore, why put Byrd through nearly eighteen years of torment as to whether he will live or die? I think the answer is clear; and that is, Byrd’s attorney never thought that anyone would give credence to a criminal who testified one way under oath, in a trial, and then testified another way in an affidavit. This does not prove Byrd’s innocence, it only proves that Brewer is a liar.1
The En Banc Court labels the “fact finding” mission “ancillary,” when indeed it is the essence of his claim and goes directly to the question of whether Byrd should be allowed to file a second habeas petition. What makes this more outrageous is the majority’s determination that the factual inquiry should contain the very relief that Byrd’s attorneys failed to obtain in his first federal habeas petition, see Byrd v. Collins, 209 F.3d 486 (6th Cir.2000), and which incidentally, failed to gain rehearing by this En Banc Court, who turned down Byrd’s request for rehearing en banc. See Byrd v. Collins, 227 F.3d 756, amended en banc order (6th Cir.2000). And the United States Supreme Court denied certiorari. See Byrd v. Collins, 531 U.S. 1082, 121 S.Ct. 786, 148 L.Ed.2d 682 (2001).
The uncharted course of this case continues in that the matter is sent not to the United States District Judge to whom Byrd’s first federal habeas petition was *598assigned, but to an appointed Magistrate Judge (presumably one who will do the bidding of the En Banc Court) who is yet to be named. Under what procedure or rule of law allows the En Banc Court to interfere with the blind draw assignment of the United States District Judge to whom it was assigned?2
In my view, as I read their order, which I attach to my dissent for publication, after the fact finding by the hand-picked magistrate, the case is not returned to the three-member panel, but instead is returned to five members of a nine-member court that is the so-called majority of the En Banc Court.3 I take it then that the En Banc Court will decide if there are grounds for a second petition. One might wonder how they pull off this sleight-of-hand as the statute requires a three-judge panel of the court of appeals to decide this issue. See 28 U.S.C. § 2244(b)(3)(B). And that decision is nonappealable. See 28 U.S.C. § 2244(b)(3)(E).
What has happened, unlike any habeas corpus case ever to come before this Court, is that the En Banc Court will not act as a reviewing body of the panel, but will become the panel itself. It would be far more courageous, far more intellectually honest, if the En Banc Court would hold as matter of policy that the Sixth Circuit, will not uphold the death penalty.
This entire unprecedented, unusual, and in my mind, illegal process has all resulted from one Judge asking for a thirty-day extension in the execution of John Byrd. All of the orders, previous decisions by the En Banc Court, and eighteen years of due process for Byrd have been thrown out the window, and a majority of this En Banc Court has ordered a fact finding on the very thing Judge Jones advocated in his dissent from the denial of Byrd’s first federal habeas petition. See Byrd v. Collins, 209 F.3d 486, 542-52 (Jones, J. dissenting). Once again, it would be much more intellectually honest and legal if this Court would merely indicate that this En Banc Court is overruling the past En Banc Court and that the law of the case has no meaning.
While it is clear that I am out-of-step with the new jurisprudence of the Sixth Circuit, and have no understanding of that law, I will attempt to set down my legal reasoning for the reader to see how outmoded and “injudicious” my legal interpretation is. I will address what I believe are the two issues properly before the En Banc Court.
The En Banc Court Has No Jurisdiction
The statute says:
The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be ap-pealable and shall not be subject to a petition for rehearing or for a writ of certiorari.
28 U.S.C. § 2244(b)(3)(E) (emphasis added). As we observed in the unanimous en *599banc decision of In re King, 190 F.3d 479, 481 (6th Cir.1999) (en banc), cert. denied, 529 U.S. 1041, 120 S.Ct. 1538, 146 L.Ed.2d 352 (2000), “[a]ny question on whether an en banc rehearing is available under § 2244(b)(3)(E) is foreclosed by the provision that the original panel’s decision ‘shall not be appealable.’ ”4 As we held in that unanimous en banc decision,
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.
King, 190 F.3d at 480. Thus, under the crystal clear language of § 2244(b)(3)(E) and the unequivocal holding of King5, we do not have jurisdiction over Byrd’s petition for rehearing en bane and the petition should be dismissed. See id. at 482.6
To get around this obvious bar, Byrd argues that “[he] is not asking the Court for permission to file a second habeas petition under § 2244(b) of AEDPA. His petition for rehearing en banc asks the Court to decide the preliminary jurisdictional question of whether the AEDPA even applies to his case.” Byrd’s Petition for Rehearing En Banc, at 4.7 If Byrd’s charae-*600terization of the issue is correct, we lack jurisdiction over this petition because we cannot issue an advisory opinion. In other words, if the AEDPA does not apply as Byrd asserts, Byrd should have filed a new habeas petition in the district court, have it thrown out as successive, and then come to us on appeal for a determination that the AEDPA does not apply. He did not do that. Instead, he has filed for that determination without any basis for it, and is asking for an advisory opinion from us that the AEDPA does not apply, which would then permit him to just file a new petition.
Thus, if “John Byrd’s Motion [to] Determine Whether 28 U.S.C. § 2244(b) of the AEDPA Applies to His Case” is anything, it must be a motion seeking permission from the court of appeals to file a second habeas corpus application under 28 U.S.C. § 2244(b)(3)(A).8 This Court has already concluded that the AEDPA’s second or successive petition procedures apply to cases in which the first habeas petition was filed before the AEDPA’s enactment. See In re Green, 144 F.3d 384 (6th Cir.1998) (per curiam); In re Hanserd, 123 F.3d 922, 924 (6th Cir.1997). See also In re Minarik, 166 F.3d 691, 599 (3d Cir.1999) (“Based on our reading of Landgraf and Lindh, we join two other courts of appeals in holding that AEDPA contains no unambiguous guidance regarding retroactive application of AEDPA’s new ‘second or successive’ petition standards and procedures to cases in which the first habeas petition was filed before AEDPA’s enactment.”; citing Green, supra; Hanserd, supra; and United States v. Ortiz, 136 F.3d 161, 165 (D.C.Cir.1998)).9 See generally Daniels v. *601United States, 254 F.3d 1180, 1188 (10th Cir.2001) (en banc) (noting that the AED-PA contains both procedural and substantive aspects). In other words, regardless of whether Byrd’s first federal habeas petition was filed pre-AEDPA, he is now required to follow the procedures outlined in § 2244(b)(3)(A) before he can file a second or successive habeas petition. See Hanserd, 123 F.3d at 934 (6th Cir.1997) (recognizing that regardless of when their first petitions were filed, prisoners seeking to file a second or successive habeas petition must now apply to the appropriate court of appeals as á gatekeeper under section 2244 of AEDPA).10
The Tenth Circuit, citing, inter alia, Hanserd, expounded on this procedural aspect of the AEDPA:
It is clearly proper to apply AEDPA’s procedural framework to all second or successive habeas applications filed after the Act’s effective date. The presumption against retroactivity contains a well-established exception for rules of procedure, since procedural rules “regulate secondary rather than primary conduct” and avoid attaching new legal consequences to earlier actions. Landgraf, 511 U.S. at 275, 114 S.Ct. 1483, ... see also Slack, 529 U.S. at 482, 120 S.Ct. 1595, ... Minarik, 166 F.3d at 599 (AEDPA’s establishment of courts of appeals as gatekeepers “is a change in procedural law which falls within the firmly established ‘procedural change’ category described in Landgraf that may be retrospectively applied”). That a would-be petitioner must apply to a gatekeeping court of appeals for permission to file a subsequent habeas petition, rather than directly to a district court, does not affect the petitioner’s underlying legal rights; it merely speaks to which court will consider his application. See Graham v. Johnson, 168 F.3d 762, 782 (5th Cir.1999) (“Substituting the court of appeals for the district court as a gatekeeper against abusive or procedurally defaulted claims would seem to *602raise no retroactivity concerns. A litigant has no reasonable expectation that a particular tribunal will adjudicate his claims”). Consequently, regardless of when their first petitions were filed, prisoners must turn to our court as a gatekeeper under section 2244 of AED-PA. See Minarik, 166 F.3d at 599-600; In re Hanserd, 123 F.3d at 934; accord United States v. Gallegos, 142 F.3d 1211, 1212 (10th Cir.1998) (per curiam) (“Because [petitioner’s third § 2255] motion was filed after ... the effective date of AEDPA, he was required to comply with the Act and obtain prior authorization from this court before filing in the district court.”).
Daniels, 254 F.3d at 1188-89. See also Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (“The Act requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court. But this requirement simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by 28 U.S.C. § 2254 Rule 9(b).”); King, 190 F.3d at 482 (“As the Supreme Court noted in Felker ... the statute transfers from the district court to the court of appeals a screening process previously performed by the district court under Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts.”).
In short, Byrd’s request to file a second habeas petition in the district court arises under § 2244(b)(3)(A) of the AEDPA as a matter of procedure and is therefore not subject to a retroactivity analysis. Because it falls within the procedural gatek-eeping requirements of the AEDPA, it is subject to § 2244(b)(3)(E)’s ban on petitions for rehearing. Thus, the panel’s decision on whether the AEDPA’s new substantive gatekeeping standards would have an impermissible retroactive effect if applied in Byrd’s case is not subject to en banc review. See § 2244(b)(3)(E); King, supra.
This should end the matter.
Even if the En Banc Court Had Jurisdiction, Byrd is Not Exempted From the AEDPA’s Substantive Standards
In Hanserd and progeny, we recognized that if the application of the AEDPA substantive standards would have an “imper-missibly retroactive effect” on pending cases, then pre-AEDPA law should govern. This Court has explicitly limited Hanserd, however. In In re Sonshine, 132 F.3d 1133 (6th Cir.1997) (order), we held:
Because the Hanserd court’s Landgraf analysis was based upon the retroactive effect that AEDPA had on the movant’s particular claim, the Hanserd holding must be similarly circumscribed. Consequently, while Hanserd is not strictly limited to claims arising under Bailey, apart from that class of claims, there will be few other cases “in which a difference matters,” Hanserd, 123 F.3d at 934 n. 21, and on which the gatekeeping requirements of AEDPA will thus have an impermissibly retroactive effect.
Id. at 1135. Judge Moore, who authored Hanserd, was a member of the unanimous Sonshine panel. See also Green, 144 F.3d 384 (holding that the Supreme Court’s Old Chief decision is not retroactive inasmuch as it announced a new rule of law) (order; Kennedy, Contie, Moore, JJ.). Again, in Coe v. Bell, 209 F.3d 815 (6th Cir.), cert. denied, 529 U.S. 1084, 120 S.Ct. 1716, 146 L.Ed.2d 516 (2000), Judge Moore wrote:
In Hanserd, we concluded that where AEDPA’s gatekeeping provision prohibiting second or successive habeas applications prevents a prisoner from bring*603ing a Bailey claim under § 2255 but where the claim could have been raised in a subsequent application under the pre-AEDPA law, AEDPA’s gatekeeping provision has an impermissible retroactive effect and is not applicable to the Bailey claim. See Hanserd, 123 F.3d at 929-34. This court subsequently limited its holding in Hanserd to the particular claim in that case and concluded that “while Hanserd is not strictly limited to claims arising under Bailey, apart from that class of claims, there will be few other cases ‘in which the difference matters’ and on which the gatekeeping requirements of AEDPA will thus have an impermissibly retroactive effect.” In re Sonshine, 132 F.3d 1133, 1135 (6th Cir.1997) (quoting Hanserd, 123 F.3d at 934 n. 21).... In light of our Sonshine decision, we cannot accept Coe’s interpretation of the Hanserd decision as holding that AEDPA has an impermissible retroactive effect whenever AEDPA’s standard of review, applied to an application filed after AEDPA’s effective date, results in a decision that would have been different under the pre-AEDPA standard of review.
209 F.3d at 822-23 (emphasis added).
In Hanserd, the petitioner’s Bailey claim was not available when he filed his first petition because Bailey had not yet been decided. The Hanserd court concluded that applying § 2244(b)(2) of the AEDPA would work an impermissibly retroactive effect on Hanserd’s second habeas petition, because under the pre-AEDPA, abuse-of-the-writ standard, Hanserd would have been allowed to raise his Bailey claim, but under the AEDPA he would not. For this reason, Hanserd did not need permission from this Court to file a second habeas petition in the district court.
Although Hanserd “is not strictly limited to claims arising under Bailey,” Sonsh-ine, 132 F.3d at 1134-35, we made clear that, “apart from that class of claims,” there will be few cases in which application of pre-AEDPA vs. the AEDPA makes a difference. Id. Byrd’s “actual innocence” claim is not within that “class of claims” because, unlike Hanserd’s Bailey claim, and like the claims in Sonshine and Green, Byrd could have raised it in his first federal petition, and would have been subject to the abuse-of-the-writ standard under pre-AEDPA law. In rejecting the petitioner’s request in Sonshine, we stated: “Although couched in Sixth Amendment terms, the issue is basically one arising under the Sentencing Guidelines, which would be barred under both AEDPA and the old abuse-of-the-writ standard. Sonshine would not have prevailed under pre-AED-PA law, as his petition would have been denied as an abuse of the writ.” Id. at 1135. In rejecting the petitioner’s request in Green, we held:
Even if Old Chief did not announce a “new rule” because it was dictated by precedent, and thus should be retroactively applicable to this case, AEDPA would still be applicable to this case, because doing so would not have a retroactive effect on Green’s pre-AEDPA conduct. This is so because Green would not have been able to establish cause to excuse his failure to assert his claim in his first pre-AEDPA § 2255 motion to vacate. If Old Chief was dictated by precedent, then his claim would not have been considered “novel,” so as to establish cause to excuse his failure to assert this claim in his first motion to vacate....
Thus, even if Old Chief did not announce a new rule, applying AEDPA to this case would not have had a retroactive effect on pre-AEDPA conduct. Green would be barred from asserting this claim in a pre-AEDPA motion to *604vacate under the abuse of the writ doctrine, as he would not have been able to establish cause to excuse his failure to present this claim in his first motion to vacate ....
Green, 144 F.3d at.387-88.
Byrd could have raised his actual innocence claim in his first federal habeas petition because (1) he obtained the Brewer affidavit in 1989 and did not file his first petition until 1994, and (2) it was well established by this time that the actual innocence/fundamental miscarriage of justice exception would excuse a procedural default, as well as an abuse of the writ. See, e.g, Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (procedural default context); Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (abuse of writ context). In other words, Byrd cannot avail himself of the Hanserd exception because he could have raised his actual innocence claim in his first federal habeas petition, but chose not to. Thus, under pre-AEDPA law, Byrd’s claim would be rejected as an abuse-of-the-writ. See McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (stating that to establish cause to excuse the failure to include a claim in the initial petition, the petitioner must show that “some objective factor external to the defense impeded counsel’s efforts to raise the claim” in the prior petition.) Id. at 493-94, 111 S.Ct. 1454 (emphasis added).11 In other words, this is not a case “in which a difference matters.”
Nor can Byrd take advantage of the actual innocence exception to the abuse-of-the-writ standard. Under either the Schlup12 standard (the petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence”) or the Sawyer 13 standard (the petitioner “must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law”), Byrd’s procedural actual innocence claim fails.14 As detailed in the *605majority opinion, the 1989 Brewer affidavit contradicts Brewer’s own trial testimony, is suspect because it was not made until after double jeopardy had attached to both Brewer’s and Byrd’s convictions, and is inconsistent with Woodall’s dying declaration. As we noted in the panel opinion, this evidence is hopelessly contradictory, both internally, and as between the two codefendants. On the basis of this evidence, it cannot possibly be concluded that it is more likely than not that any reasonable juror would have convicted Byrd in light of this evidence, let alone that this is clear and convincing evidence that would allow us to conclude that no reasonable juror would have found Byrd eligible for the death penalty.
Byrd’s “new” evidence is completely unlike the evidence of actual innocence presented in Schlup. In Schlup, the new evidence included sworn statements of several eyewitnesses that Schlup was not involved in the crime. Furthermore, Schlup presented statements from an inmate who had reported that he sent out the distress call shortly after the disturbance caused by the murder, and a prison guard who testified that Schlup had been in his presence for two and half minutes on his way to the dining room, and that he was not out of breath. These facts created doubt as to whether Schlup could have participated in the' murder and still arrived in the prison dining room 65 seconds before the distress call was received (a fact which had been caught on videotape). As the Supreme Court observed, if these facts were true, “it surely [could not] be said that a juror, conscientiously following the judge’s instructions requiring proof beyond a reasonable doubt, would vote to convict.” Schlup, 513 U.S. at 331, 115 S.Ct. 851.
Schlup instructs that the court must “assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Id. at 332, 115 S.Ct. 851. As part of this analysis, “the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” Id. Here of course, the timing of Brewer’s first affidavit is highly suspect, because he made it *606only after he and Byrd had both been convicted and were covered by double jeopardy. By 1989, Brewer had nothing to lose, and he could exculpate Byrd in the process. See Drew v. Scott, 28 F.3d 460, 463 (5th Cir.1994) (“we still have little confidence in [the codefendants] postsen-tencing truth experience because he had nothing whatsoever to lose by incriminating himself after receiving a 60-year sentence”; rejecting the state prisoner’s “new evidence” in the form of recently-obtained statement of a third prisoner claiming that he heard the codefendant take sole credit for the murder before he pled guilty to that murder); United States v. Vergara, 714 F.2d 21, 23 (5th Cir.1983) (holding that the district court may deny the defendant a new trial, without an evidentiary hearing, if it determines that a previously silent accomplices’s postconviction willingness to exculpate his codefendant is not credible); Drew v. State, 743 S.W.2d 207, 228 (Tex.Crim.App. 1987) (“It is not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his code-fendant by the filing of a recanting affidavit or other statement.”). If the Brewer affidavit is to be believed, we are in the odd position of having two defendants admittedly at the scene, a dead body, but no convicted murderer.
The Brewer affidavit also lacks credibility because it is inconsistent with his sworn testimony. Cf. United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir.1991) (“Recanting affidavits and witnesses are viewed with extreme suspicion.”). Brewer’s proven status as a liar in this very case weighs heavily against the probable reliability of his 1989 and 2001 affidavits. Furthermore, it is inconsistent with Woodall’s dying declaration, which happens to be consistent with Brewer’s trial testimony. Even under the more lenient Schlup standard, it simply cannot be said that no juror would vote to convict on the basis of Brewer’s 1989 affidavit, because it contradicts his earlier testimony under oath, and because it is inconsistent with all-but-one of Woodall’s statements over the years.
Quite simply, Byrd cannot meet the pre-AEDPA actual innocence standard because the only “new” evidence he has is the affidavit of a proven liar. The probative force of the Brewer affidavit is de minimis. Brewer’s changing testimony cannot come close to meeting the actual innocence articulated in either Sawyer or Schlup.
Byrd also cavalierly attempts to introduce affidavits of eight former inmates, who claim that Armstead bed. Byrd claims that “[t]his is not rehash of an old claim. It is not the initial habeas claim that Armstead had an undisclosed deal. Rather, these affidavits are new evidence, not presented at trial or in the original habeas, and they support a new claim— Ronald Armstead’s crucial testimony was a lie, deal or no deal.” Byrd’s Petition, at 7-8 n. 2. These affidavits may be new, but they do not support a new claim, as the following passage in the panel decision in Byrd’s appeal from the denial of his first habeas petition reveals:
On appeal, Petitioner posits several challenges to Armstead’s testimony.... Second, Petitioner alleges that Armstead’s testimony about Petitioner’s confession was false in all material respects. In support of his position, Petitioner presented affidavits from several individuals who were incarcerated with Armstead and Petitioner in the Cincinnati Workhouse in the Spring of 1983. Petitioner asserts that these affidavits show that Armstead and another inmate, Virgil Jordan, were involved in a scheme to testify falsely against Petitioner in order to further their own causes with the Hamilton County Prosecutor’s Office.
*607Byrd v. Collins, 209 F.3d 486, 500 (6th Cir.2000), cert. denied, 531 U.S. 1082, 121 S.Ct. 786, 148 L.Ed.2d 682 (2001). As we noted in the panel decision, Byrd’s renewed attacks on Armstead’s credibility are barred under § 2244(b)(1)(“A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”). Byrd’s attempt to otherwise throw this evidence into the mix is utterly improper.
The Policies Underlying Habeas Jurisprudence Direct That This Case Come to an End
In addition to contravening the express directive of the AEDPA, the En Banc Court’s consideration of this case runs counter to the strong policy concerns that underlie federal habeas jurisprudence. The Supreme Court recently reiterated these principles in Calderon:
In light of “the profound societal costs that attend the exercise of habeas jurisdiction,” Smith v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), we have found it necessary to impose significant limits on the discretion of federal court to grant habeas relief. McCleskey v. Zant, 499 U.S. 467, 487, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
These limits reflect our enduring respect for “the State’s interest in the finality of convictions that have survived direct review within the state court system.” [Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)] ... Finality is essential to both the retributive and the deterrent functions of criminal law. “Neither innocence nor just punishment can be vindicated until the final judgment is known.” McCleskey, supra, at 491, 111 S.Ct. 1454. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague, supra, at 309, 109 S.Ct. 1060.
Finality also enhances the quality of judging. There is perhaps “nothing more subversive of a judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441, 451 (1963).
Finality serves as well to preserve the federal balance. Federal habeas review of state convictions frustrates “ ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” ’ Murray v. Carrier, supra, at 487, 106 S.Ct. 2639[.] ... “Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.” McCleskey, 499 U.S. at 491, 111 S.Ct. 1454.
Calderon, 523 U.S. at 554-56, 118 S.Ct. 1489 (some internal citations and quotation marks omitted).
A decision by the En Banc Court to hear this case will not only be contrary to the rule of law, as clearly defined by the AED-PA, but will violate important principles of habeas jurisprudence.
For all the foregoing reasons, and those set forth in the opinion denying Byrd’s appeal from the denial of his first habeas petition, see Byrd v. Collins, 209 F.3d 486 (6th Cir.2000), en banc rehearing denied, Byrd v. Collins, 227 F.3d 756, amended en banc order (6th Cir. Aug. 22, 2000), cert. denied, 531 U.S. 1082, 121 S.Ct. 786, 148 L.Ed.2d 682 (2001), as well as the panel *608decision denying Byrd’s request for permission to file a second habeas petition, See In re Byrd, — F.3d -, No. 01-3927 (6th Cir. Sept. 11, 2001), I submit that Byrd’s petition for rehearing en banc should be denied, and that the sua sponte remand is improper. I therefore dissent.
APPENDIX
A majority of the judges in regular active service have voted that the court remand this matter for the development of a factual record sufficient to permit sua sponte consideration of a request for leave to file a second petition for a writ of habeas corpus. The jurisdictional basis for a rehearing sua sponte is Triestman v. United States, 124 F.3d 361, 367 (2d Cir.1997); Krimmel v. Hopkins, 56 F.3d 873, 874 (8th Cir.1995).
The remand for the development of a factual record is ancillary in nature to the petition for the writ of habeas corpus. A majority of the active judges has decided that a factual basis does not exist sufficient to permit the en banc court to entertain the Petitioner’s request for a successive filing. We therefore issue this remand, directed to the Chief Judge of the Southern District of Ohio for appointment of a Magistrate Judge to promptly conduct an appropriate factual hearing.
The hearing should develop a record with regard to John Byrd’s claim of innocence presented to the Ohio courts but on which no testimony of witnesses or evidence was taken. We direct that the scope of the factual inquiry conducted by the Magistrate Judge shall include testimony relating to matters set forth in the affidavits of John Brewer, Dan Cahill, Darryl Messer, Roger Hall and Benny Fields.
In addition, the factual inquiry shall include, but is. not limited to, an examination of the following:
1. Documents prepared by the Hamilton County Prosecutor’s Office and/or Hamilton County Sheriffs Department authorizing, directing or identifying Ronald Armstead, Virgil Jordan, Marvin Randolph and Robert Jones to be questioned in matters relating to the issue of innocence raised in this matter.
2. Documents prepared or received by the Hamilton County Prosecutor’s office or Hamilton County Sheriffs Department or Cincinnati Police Department relating to Ronald Arm-stead’s incarceration, testimony and parole revocation hearing and disposition.
3. Documents or reports received by the Attorney General’s office or Hamilton County Prosecutor’s office from the Ohio Department of Corrections or its institutions, relating to this matter.
We further direct that this matter proceed on an expedited basis with the Magistrate Judge submitting a report with factual findings and recommendations to the en banc court within 45 days from date of the appointment of the Magistrate Judge.
IT IS ORDERED that the matter be, and it hereby is remanded. The Magistrate Judge shall report factual findings to this court, which retains jurisdiction in the matter.
IT IS FURTHER ORDERED that the stay of execution currently in place remain in force, pending further order of this court.
. See United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir.1991) ("Recanting affida-vils and witnesses are viewed with extreme suspicion.").
. If this matter is not going back to the original panel, presumably the En Banc Court thinks the panel is tainted in some way. The En Banc Court must also believe that the United States District Judge is tainted as well, because they have assigned the matter to the Chief Judge of the Southern District of Ohio for appointment of a Magistrate Judge, thereby taking the case away from the district judge who has handled this matter since 1994. Once again, there is no indication as to what case or statute permits this procedure.
. If Judge Jones’s concurrence in the Order of Remand is correct, would this matter not come back to the original panel, or has the En Ban Court taken complete control of the case and there will be no three-member panel as provided for in the statute?
. In Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Supreme Court indicated that this limitation is constitutional. See also 17A Wright & Miller, FED PRAC. & PROC. § 4267 (West.Supp.2001).
. It should also be pointed out that the petitioner in King was in an identical procedural posture to Byrd: his first federal habeas petition was filed in the district court prior to the enactment of the AEDPA, and his request for permission to file a second habeas petition was filed under § 2244 of the AEDPA. See In re King, 190 F.3d 479, 480 (6th Cir.1999) (en banc), cert. denied, 529 U.S. 1041, 120 S.Ct. 1538, 146 L.Ed.2d 352 (2000). In Workman v. Bell, 227 F.3d 331 (6th Cir.2000) (en banc), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001), which addressed the Workman's request to recall our mandate, we pointed out that we ”ha[d] not undertaken to review” the denial of Workman’s request to file a second habeas petition in the district court. Id. (citing and distinguishing King).
. Furthermore, in King, we specifically instructed as follows:
Given our decision today, the clerk of court is directed to return to any party petitions seeking a rehearing or rehearing en banc that challenge a panel’s decision granting or denying a request under § 2244(b) to file a second or successive writ of habeas corpus in the district court.
In re King, 190 F.3d 479, 482 (6th Cir.1999) (en banc), cert. denied, 529 U.S. 1041, 120 S.Ct. 1538, 146 L.Ed.2d 352 (2000).
.Implicit in Byrd's argument is the erroneous assumption that the procedural requirements of the AEDPA requiring a petitioner to seek permission in the Court of Appeals to file a second petition are subject to a retroactivity analysis. As will be discussed, this assumption is flawed, because it confuses the procedural and substantive aspects of the AEDPA's gatekeeping requirements. See generally Daniels v. United States, 254 F.3d 1180 (10th Cir.2001) (en banc) (considering separately the AEDPA’s procedural and substantive aspects).
Byrd also claims that this Court has jurisdiction to resolve the question of the applicability of the AEDPA. In support, he cites Mancuso v. Herbert, 166 F.3d 97, 100 (2d Cir.), cert. denied, 527 U.S. 1026, 119 S.Ct. 2376, 144 L.Ed.2d 779 (1999) for the proposition that § 2244(b)(3)(E) "does not bar petitions that ask for reconsideration of the jurisdictional question of whether the AEDPA even applies, i.e., while Section 2244(b)(3)(E) governs how petitions are treated once they are properly located within the AEDPA framework, it does not restrict our authority over the threshold question of whether the AEDPA applies.” Id. at 100.
Taken out of context, Mancuso appears to support Byrd's position. However, in Mancu-so, at issue was the court’s recall of the mandate. After the court of appeals had granted the petitioner’s request for an order recalling the mandate, the state moved for reconsideration of that order and moved for an order denying the petitioner’s motion for recall of the mandate. The Second Circuit held that *600the state’s motion was not barred by § 2244(b)(3)(E):
However, while Section 2244(b)(3)(E) prohibits those petitions that seek reconsideration of the merits underlying a grant or denial of a habeas petition, see Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) ("In a § 2254 case, a prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b)” (emphasis added)), it does not bar petitions that ask for reconsideration of the jurisdictional question of whether the AEDPA even applies ....
Id. at 99-100.
The request in Mancuso, to recall the court's mandate, "is different from an application for a second petition, as the Supreme Court made quite clear recently in Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 .... (1998)[.]” Workman v. Bell, 227 F.3d 331, 333 (6th Cir.2000) (en banc) (order) (an equally divided en banc court denying a subsequent petition to file a second habeas corpus action which was also denied by the original panel), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001). Instead, Byrd’s motion falls squarely within the confines of our en banc decision in King.
. Because he filed his motion with this Court, Byrd has conceded that the AEDPA applies, at least procedurally. The original panel characterized this motion as a request to file a second or successive petition.
. In Minarik, the Third Circuit, citing Han-serd, rejected the petitioner’s argument that subjecting him to the new procedure found in § 2244(b)(3)(A) of the AEDPA was an impermissible retroactive application of the statute.
Minarik maintains that subjecting him to this new procedure is an impermissible retroactive application of the statute. Section 2244(b)(3)(A), however, is a change in procedural law which falls within the firmly established "procedural change” category described in Landgraf that may be retrospectively applied. See Landgraf, 511 U.S. at 275, 114 S.Ct. 1483, 128 L.Ed.2d 229 ("Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.”).
Because AEDPA, as read by the Lindh Court in the light of normal principles of statutory interpretation, calls for the application of § 2244(b)(3)(A) to cases filed after April 24, 1996, and because it is a rule of *601procedure that does not "attach new legal consequences to events completed before its enactment," petitioners in Minarik's position must seek permission of a Court of Appeals prior to proceeding on a second petition, even if their first petition was filed before the Act was adopted. See In re Hanserd, 123 F.3d 922, 934 (6th Cir.1997) ("Inmates who wish to file a second or successive petition should first file a motion in [the Court of Appeals] requesting permission under 28 U.S.C. §§ 2244, 2255, regardless of when the first motion to vacate was filed.”).
In re Minarik, 166 F.3d 591, 599-600 (3d Cir.1999).
. In In re Hanserd, 123 F.3d 922 (6th Cir.1997), we outlined the procedure for federal inmates who wish to file a second or successive motion to vacate sentence as follows:
Inmates who wish to file a second or successive motion to vacate sentence should first file a motion in this court requesting permission under 28 U.S.C. § 2244, 2255 regardless of when the first motion to vacate sentence was filed. If the successive motion is proper under AEDPA’s gatekeeping provisions, permission to file a motion in the district court will be granted .... If under the holding of this case permission is not needed because AEDPA’s gatekeeping provision cannot be applied pursuant to Land-graf, this court will so indicate and will transfer the motion to the proper district court pursuant to 28 U.S.C. § 1631. Cf. Fed. R.App. P. 22(a). Motions for permission that fall in neither of these categories i.e., those that would be barred both under the old and new law and those that are barred by a previous motion filed after April 24, 1996 — will be denied by order of this court. If either a motion requesting permission or a second or successive motion to vacate sentence is erroneously filed in district court, that court should transfer that motion to this court under 28 U.S.C. § 1631. See In re Sims, 111 F.3d 45, 47 (6th Cir.1997).
Hanserd, 123 F.3d at 934.
. In fact, Byrd's attorney indicated to the press that he has had the Brewer affidavit since 1989.
. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In Schlup, the Supreme Court reiterated that "[t]he meaning of actual innocence as formulated by Sawyer and Catrier does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” Id. at 329, 115 S.Ct. 851.
. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
. Byrd argues that the majority misunderstood Ohio law and applied the wrong "actual innocence” test in Sawyer. Byrd claims that under Ohio's statute in 1983, the jury was required to convict a capital defendant of the principal offender aggravating circumstance in R.C. 2929.04(B)(7) at the guill/innocence phase of trial. See former R.C. 2929.03(B). Thus, according to Byrd, had he been acquitted of this aggravator, he was not death-eligible. In other words, without the aggravating circumstance, he would have been guilty "only” of aggravated murder and would have been sentenced only to a "soft” twenty to life term, with parole eligibility at about fourteen years. Byrd further contends that with the aggravator, he could at best hope for a term of at least twenty years to life. Thus, according to Byrd, the principal offender aggravator in Ohio was not merely a "sentence enhancer” as in Sawyer. Thus, in Byrd's view, Schlup is the correct test.
Although, for the sake of the argument, I have analyzed this claim under Schlup, I do not agree that Schlup is the correct test. As the Supreme Court pointed out in Calderon v. Thompson, 523 U.S. 538, 560, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998):
The Sawyer standard has a broader application than is at first apparent. As the Court explained in Schlup, when a capital *605petitioner challenges his underlying capital murder conviction on the basis of an element that "function[s] essentially as a sentence enhancer,” the Sawyer "clear and convincing” standard applies to the claim. Schlup, supra, at 326, 115 S.Ct. 851 ....
Thus, to the extent a capital petitioner claims he did not kill the victim, the Schlup "more likely than not” standard applies. To the extent a capital petitioner contests the special circumstances rendering him eligible for the death penalty, the Sawyer "clear and convincing” standard applies, irrespective of whether the special circumstances are elements of the offense of capital murder or, as here, mere sentencing enhancers.
Calderon v. Thompson, 523 U.S. 538, 560, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).
In our opinion affirming the denial of his first habeas petition, we observed:
Petitioner also was charged with two death penalty specifications; i.e., that he was the “principal offender” who committed the aggravated murder of Monte Tewksbury while committing or attempting to commit the aggravated robbery of King Kwik, as well as the aggravated robbery of Monte Tewks-bury himself.2
Byrd, 209 F.3d at 496.
Finally, it must be noted that in his motion before the panel, Byrd argued merely that he was "innocent of the death penalty.” Byrd’s Memorandum in Support, at 1-2, 46 n. 20. Significantly, Byrd is not claiming that he is innocent of aggravated murder; simply that he was not the "principal offender.” It is this specification that warranted the death penalty-
In any event, Byrd’s claim fails under either standard. .
FN2. In Ohio, the “principal offender” means the "actual killer.” State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744, 746 (Ohio 1987).