Kevin COOPER, Petitioner-Appellant, v. Arthur CALDERON, Warden of California State Prison at San Quentin, et al., Respondent-Appellee, 308 F.3d 1020

ORDER Judges Rymer and Gould vote to dismiss the petition for rehearing and rehearing en banc to the extent that the petition for rehearing and rehearing en banc requests reconsideration of the denial of authorization to file a second or successive application, and to deny the petition to the extent that it requests reconsideration of whether his petition is a second or successive petition under 28 U.S.C. § 2244(b). Judge Browning votes to grant the petition for rehearing and makes no recommendation whether the case should be reheard en banc. He dissents from the order, which we enter for the reasons that follow.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on the petition. Fed. R. App. P. 35. First, we held that Cooper’s petition is a second or successive petition under 28 U.S.C. § 2244(b), and that he may not proceed with it. Cooper v. Calderon, 274 F.3d 1270, 1275 (9th Cir.2001). Therefore, we must dismiss Cooper’s petition for rehearing, because denial of authorization by a court of appeals to file a second or successive application “shall not be the subject of a petition for rehearing.” 28 U.S.C. § 2244(b)(3)(E).

The statute is plain on its face, and the parties plainly are precluded from seeking a rehearing. Cooper had no right to file it, and we have no right to consider it. Second, to the extent that we are not required to dismiss the petition for rehearing, reconsideration is not indicated. No substantial denial of a constitutional right has been shown.

Cooper argues that he adequately raised a claim that counsel was ineffective in failing to investigate a statement by a Vacaville Prison inmate named Kenneth Koon implicating himself in the murders for which Cooper was convicted, but that the district court failed to rule on it. To the extent that Cooper did sufficiently raise the Koon ineffective assistance of counsel claim during his first habeas action-and to the extent that the district court failed explicitly to decide it-the claim necessarily fails for the same reason that the Koon Brady claim (which undeniably was raised) failed.

The district court held that the Brady claim failed because there was no reasonable probability that the result of the proceeding would have been different. By definition, this forecloses a determination that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), can be met. Thus, assuming that the issue was raised, the district court has decided it. And would necessarily — and correctly — so rule again.

To the extent that the issue was not raised in the first petition, it clearly could and should have been as Cooper has known about the facts giving rise to ineffectiveness (because they are the same facts giving rise to the Brady claim) since his trial in 1985. Finally, Cooper suggests that the district court should have considered a Koon confession claim that he raised by way of a Rule 59(

e) motion. We disagree. Nothing presented after the district court’s decision denying Cooper’s first petition by way of a motion to reconsider could possibly be timely. Nor would it be a timely request for leave to amend that petition, because if the ineffective assistance claim were in the petition, there was no need to amend to include it and if it weren’t in the petition, there is no reason why it couldn’t have been.

Accordingly, the petition for rehearing and for rehearing en banc is dismissed to the extent that it requests reconsideration of the denial of authorization to file a second or successive application, and is denied to the extent that it requests reconsideration of whether the petition is a second or successive petition. . While an en banc panel may sua sponte "reconsider” such a denial, see Thompson v. Calderon, 151 F.3d 918 (9th Cir.1998), we are not an en banc panel, nor do We believe it is appropriate to reconsider our prior ruling on this basis in this case. .

When a district court has relied on a procedural ground to dismiss a claim, we may only grant a Certificate of Appealability (COA) if the underlying constitutional claim is arguable. Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Here, the district court rejected Cooper’s second petition on three grounds: (1) as a reconsideration of the court's prior order denying Cooper's first habeas petition, it was untimely; (2) the court had already addressed the merits of the "Koon statement” claim in its order denying Cooper's first habeas petition; and (3) as a successive petition, the court was required to dismiss it as a successive petition.

The court also declined to issue a COA with respect to its order dismissing the second petition as he had failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . We explained why in our opinion on Cooper’s first habeas petition, Cooper v. Calderon, 255 F.3d 1104, 1109-1110, 1114-15 (Gould, J. concurring) (9th Cir.2001).