with whom Circuit Judge BYBEE joins, dissenting from En Banc Stay Order.
Because the court acts to stay the execution of Kevin Cooper in derogation of the standard set by Congress for evaluating successive habeas corpus petitions, I respectfully dissent. We do not apply the familiar standards as if this case were on direct or collateral review. The court ducks the question whether the standard announced in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1994), has been superceded by AEDPA. The majority finds that, under either standard, Cooper has made his case for a successive habeas petition. With the greatest respect for the concerns expressed by my colleagues in the majority, I disagree.
For successive appeals like this, 28 U.S.C. § 2244(b)(2) controls:
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless — •
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
Applying this standard, the panel majority (Circuit Judges Rymer and Gould) carefully evaluated the merits of Cooper’s eleventh hour attempt to delay the imposition of his sentence in this 21-year-old case. See Order entered 2/08/04.
Under § 2244(b)(2)(B)®, Cooper must establish that the factual predicate for any constitutional claim “could not have been discovered previously through the exercise of due diligence.” He has not met this burden. With regard to Cooper’s Brady claim concerning the prosecution’s alleged failure to inform the defense of the Chino warden’s information concerning the general availability of the Pro-Ked shoes, the proper test under § 2244(b)(2)(B)® is *1126whether this information was available upon the exercise of due diligence. The warden’s declaration explicitly states that she was ready and willing to share this information with the defense. The fact that the warden only recently came forward -with this information is not disposi-tive under § 2244(b); the defense’s utter failure to independently investigate the issue evinces a lack of diligence.
Even if Cooper could meet the (B)(i) due diligence standard, he has not made a pri-ma facie showing of a constitutional violation. See 28 U.S.C. §§ 2244(b)(2)(B)(ii), (b)(3)(C). The majority cites the standard set forth in Schlup v. Delo, finding that had the warden’s information been provided to the defense and presented at trial, it is “more likely than not” that a reasonable factfinder would not have found Cooper guilty. Although we have not specifically addressed and resolved the question of Schlup’s applicability post-AEDPA, I believe that Schlup’s “more likely than not” standard is irreconcilable with the “clear and convincing” standard of AEDPA. Cooper has failed to show that the facts offered, “if .proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.” § 2244(b)(2)(B)(ii). Therefore, he does not satisfy the stringent statutory requirements for filing a successive habeas petition. See David v. Hall, 318 F.3d 343, 347 n. 5 (1st Cir.2003); Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002); In re Minarik, 166 F.3d 591, 600 (3d Cir.1999).
Even assuming for purposes of this argument that Brady information was withheld, Cooper cannot satisfy the § 2244(b)(2)(B)(ii) standard because Brady is not violated unless the information withheld is material. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). First, the best evidence is not the warden’s hearsay, but the testimony introduced by the state at trial. Contrary to the majority’s reading of the warden’s affidavit, she did not state that tennis shoes issued at Chino were different from tennis shoes issued at other prisons. Rather, she stated that “the notion that the shoeprints in question likely came only from a prison-issue tennis shoe was inaccurate.” At Cooper’s trial, the key footwear-related evidence was the testimony of the Stride Rite shoe company representative, who testified that Pro-Ked Dude shoes were sold exclusively to state institutions and that the tread on the soles of these shoes were unique to his brand. Additionally, James Taylor, an inmate at Chino, testified that he issued a pair of black Pro-Ked Dude shoes to Cooper shortly before Cooper escaped. Although the warden’s information contradicts the representative’s and Taylor’s testimony, there is no reason to believe that the warden was in a better position than the Stride Rite representative to opine on the distribution of Pro-Ked Dude shoes in prisons, or that she could contradict Taylor’s testimony that he, in fact, issued Cooper a pair of these shoes. Because the warden’s research consisted merely of asking prison personnel about the availability of this brand of shoes, her recent declaration does not undercut the evidence offered at trial.
Even if the warden’s claim was completely credited — that the Pro-Ked shoes issued to prisoners at Chino could be purchased generally — it does not undermine the key evidence the jury heard. The critical fact is that the same shoe pattern prints were found inside the Ryen house (where the murders occurred), just outside the Ryen house, and in the Lease house (where Cooper indisputably stayed). Whether these shoes were available to the general public or only to prison inmates, *1127the same prints were found in both homes. Viewed against the evidence as a whole, the information that Cooper now urges is not sufficient to establish by clear and convincing evidence that, but for the alleged constitutional errors, no reasonable jury could have concluded that he was guilty even if the warden’s information had been available to the defense at trial. See 28 U.S.C. § 2244(b)(2)(B)(ii). Indeed, we could not conclude even under Sehltvp that Cooper’s evidence is sufficient to justify yet another round of habeas review. As Justice O’Connor observed in Sehlup,
“[A] petitioner does not pass through the gateway erected by Murray v. Carrier, 477 U.S. 478 [106 S.Ct. 2639, 91 L.Ed.2d 397] (1986), if the district court believes it more likely than not that there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt.”
513 U.S. at 333, 115 S.Ct. 851 (O’Connor, J., concurring).
The majority further finds that Cooper has met the extraordinarily high burden under AEDPA for bringing an evidence tampering claim in a successive petition. Cooper’s claim that the bloody T-shirt was tampered with is, at its core, the same claim he raised at trial and at every proceeding since trial. He has repeatedly contended that the San Bernardino County Sheriffs Office and crime lab employees tampered with and manipulated evidence. The portion of the t-shirt that matched Cooper’s DNA was in the continuous possession of the state superior court since the trial. Accordingly, the contamination would have to have occurred before trial and before the advent of forensic DNA testing. Therefore, as far as we know, the state never received the benefit of any such conspiracy to tamper with evidence. At trial, the state only contended that the stain belonged to victim Doug Ryen.
As the panel noted, the state trial court determined at the evidentiary hearing that “Cooper’s claims lacked merit.” The panel also accurately stated, “We resolved in connection with Cooper’s motion for a second habeas corpus petition that nothing claimed about the DNA testing satisfies the requirements for a second or successive application.” More than one court has reviewed this evidence tampering claim and found it unpersuasive. In his application, Cooper fails to present any newly discovered facts sufficient to justify allowing him to bring the successive petition.
Regarding the Slonaker and Mellon-Wolfe declarations, the defense fully explored at trial the issue of who was present at the Canyon Corral Bar and what occurred there on the night of the murders. Edward Lelko, the bartender at the Canyon Corral Bar that night who had come forward the next day on his own volition to tell the police what he had seen, was called by the defense at trial. He, at no point, testified or reported to police that the suspicious patrons were spattered with blood. Furthermore, the prosecution called Shirley Killian, the manager of the Canyon Corral Bar, who testified that the men had close-cut military-type haircuts and wore light-colored t-shirts. She noticed no blood or stains on their shirts or clothing. It is inconceivable that two witnesses who saw these men — one called by the defense, and the other by the prosecution — would not have noticed it. Accordingly, none of this information would be sufficient, even if proven, to establish by clear and convincing evidence that no reasonable juror could have found Cooper guilty. At best, he has discovered additional evidence for impeachment, but not to establish actual innocence.
Furthermore, the majority fails to appreciate the powerful circumstantial evidence tying Cooper to these crimes. Lost *1128in defense counsel’s voluminous pleadings with which we have been inundated over the past two days are a number of crucial facts. As noted above, the same shoe impression was found inside the Ryen house, just outside it, and in the Lease house. The evidence is undisputed that Cooper was the only suspect inside the Lease house. There are no other shoe prints.
Also conspicuous by its absence is any mention by the defense that a red-stained button, identical to those worn on prison-issue field jackets, was found in the bedroom of the Lease home where Cooper admits he was hiding out and where he apparently showered after the murders. Luminol tests showed the presence of blood on the shower wall and Cooper’s foot print was found on the sill of the shower. Long before any DNA testing was conducted, blood evaluation by the crime laboratory of the bloody spot on the wall of the Ryen murder scene showed characteristics attributable to African Americans. No other suspect that Cooper now offers in variations of his defense theory that someone else murdered the Ryen family and their young guest is African-American.
After careful, thoughtful, and thorough consideration of this procedurally and factually byzantine case, the panel correctly determined that Cooper fails to satisfy AEDPA’s stringent standard for bringing a successive habeas petition. This is not the “extraordinary case” justifying a stay of execution based upon a claim of actual innocence. Schlup, 513 U.S. at 321, 115 S.Ct. 851. Because the panel was correct, I respectfully dissent.