FILED
FOR PUBLICATION JUN 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD LYNN BIBLE, Nos.
07-99017, 11-16453, 11-71782
Petitioner - Appellant,
v. OPINION
DORA SCHRIRO,
Respondent - Appellee.
Before: GOULD, CLIFTON, and BYBEE, Circuit Judges.
PER CURIAM:
Richard Lynn Bible requests permission to file a second or successive
application for a writ of habeas corpus in the District of Arizona. See 28 U.S.C.
§ 2244(b)(3). He also asks that we stay his execution, currently scheduled for June
30, 2011. We deny both requests.
I
Bible was convicted of first-degree murder, kidnapping, and molestation of a
nine-year-old girl on April 12, 1990. He received a death sentence. Our opinion of
July 1, 2009, not cited in the current application, details the circumstances of
Bible’s crimes and the evidence presented at his trial related to the murder:
On June 6, 1988, around 10:30 a.m., the nine-year-old victim, Jennifer
Wilson, began riding her bicycle to a ranch a mile away from where her
family was staying in Flagstaff, Arizona. Her family passed her while
driving to the ranch, but Jennifer never arrived. The family began to
look for her and discovered her bicycle by the side of the road. Within
an hour of her disappearance, Jennifer’s mother called the Flagstaff
police to report her daughter missing. The Flagstaff police arrived and
immediately called in a helicopter, set up roadblocks, and alerted the
Federal Bureau of Investigation that Jennifer was missing. A massive
police search ensued. But it was not successful.
Jennifer’s mother told police that she saw a man driving a royal blue
Blazer-type vehicle at a high rate of speed around the time her daughter
went missing. Later that day, Bible arrived at his brother’s home near
Sheep Hill driving a dark green or silver Blazer-type vehicle. Believing
that Bible had been stealing from him, Bible’s brother called the police
and described the vehicle. The detective who took Jennifer’s mother’s
statement realized that her description of the “Blazer-type” vehicle and
its driver substantially matched Bible and the vehicle described by
Bible’s brother. Police next discovered that Bible had stolen a GMC
Jimmy from a police impound lot near Sheep Hill the day before. Later
that evening, police saw Bible driving the stolen GMC vehicle. When
police tried to stop Bible, a high-speed chase ensued. The police pursued
Bible until he rammed the GMC vehicle into a cattle guard, ran from the
vehicle, and hid in the woods. Police located Bible using a tracking dog.
He was hiding under a ledge covered in twigs, leaves, and branches.
Police confiscated a knife on Bible’s person and a large folding knife
where Bible was hiding. Within hours of his arrest and on the same day
that Jennifer disappeared, Bible confessed to stealing the GMC vehicle.
Police held Bible without bail and confiscated his clothing.
In the stolen GMC, which had been used to deliver newspapers, police
found a blanket, numerous round rubber bands but no rubber band bags,
2
a piece of metal from the steering column that had been cut open, a case
of twenty 50-milliliter bottles of “Suntory” vodka with two bottles
missing, some packets of Carnation “Rich” hot chocolate, a wrapped
cigar broken in two places, and a “Dutchmaster” cigar wrapper and band
in the ashtray. There was blood smeared inside and under the vehicle,
but testing did not reveal whether it was human blood.
For almost three weeks, Jennifer remained missing despite the massive
yet fruitless search effort. Finally, hikers happened upon Jennifer’s body
on the top of Sheep Hill, not far from where she had been last seen.
Jennifer’s naked body was hidden under branches and debris near a tree,
with her hands bound behind her back with a shoelace. Police secured
the area and processed the evidence found in the vicinity of Jennifer’s
body. One of her sneakers was found without a shoelace near her body,
and her panties were found in a nearby tree. The victim’s head and
genital area were severely decomposed, and she had multiple skull
fractures and a broken jawbone indicating that blows to her head caused
her death.
Around Jennifer’s body lay distinctive items: an unwrapped, unsmoked
cigar with two distinctive breaks in the same pattern as the cigar found
in the GMC; an empty ten-pack box of Carnation “Rich” hot chocolate;
two empty 50-milliliter “Suntory” vodka bottles; and a piece of metal
that perfectly fit the GMC’s damaged steering column. Round rubber
bands, identical to those found in the GMC, were everywhere—on a path
near Jennifer’s body, on and under her body, in the tree where her
panties were found, near her other clothing, in the leaves covering her
body, in the tree above her body, under a tree where one of her shoes was
found, and in a rubber band bag sitting five feet from her body.
Near Jennifer’s body, there were several clusters of long golden brown
hair that were similar to her hair. Many of the hairs were cut on one side
and torn on the other. The investigator was able to duplicate this pattern
by using the knives found on Bible when he was arrested, as well as
other knives. Mixed among the hair was a pubic-type hair that was
similar to Bible’s pubic hair samples. Hair similar to Bible’s hair was
also found on a sheet used to wrap Jennifer’s body and on her t-shirt.
3
The police found fibers on top of Sheep Hill that were similar to the
GMC seat covers and the blanket found in the GMC. In addition, fibers
found in a lock of hair near Jennifer’s body were similar to fibers from
Bible’s jacket. A blue or purple fiber on the shoelace binding Jennifer’s
hands also matched the lining of Bible’s jacket.
Several hairs on Bible’s clothing were similar to Jennifer’s hair and were
also cut on one side and torn on the other. Police determined that hair
found in the GMC was similar to Jennifer’s hair. Blood on Bible’s shirt
matched Jennifer’s PGM 2+ subtype—a subtype shared by less than
three percent of the population. Bible has a PGM 1+ so the blood could
not have been his subtype.
While still in jail for stealing the GMC, Bible was charged with first-
degree murder, kidnapping, and child molestation. After a six-week
trial, the jury found Bible guilty on April 12, 1990, of all charges.
Bible v. Ryan, 571 F.3d 860, 862–64 (9th Cir. 2009).
Bible’s conviction and sentence were upheld on direct review, state
collateral review, and federal habeas review. On March 22, 2010, the State of
Arizona filed a motion in the Arizona Supreme Court for a warrant of execution.
The Arizona Supreme Court granted the motion and issued a warrant of execution.
A month later, on April 19, 2010, Bible filed a motion in state trial court for DNA
testing of hairs used as inculpatory evidence at his trial. The trial court denied
Bible’s request, holding, first, that Bible did not establish that the evidence he
sought to test still exists, and second, that there was not a reasonable probability
that he would not have been convicted if exculpatory results had been obtained
4
through DNA testing. The Arizona Supreme Court, on March 16, 2011, affirmed
on the second ground. Two months later, on May 24, 2011, the Arizona Supreme
Court denied Bible’s motion for reconsideration. Bible petitioned the United
States Supreme Court for a writ of certiorari to review the Arizona Supreme
Court’s decision and requested a stay of execution. The Supreme Court has not yet
acted on Bible’s petition or request for stay. Bible also filed a petition for special
action in the Arizona Supreme Court seeking an order compelling the State to
disclose information about the pentobarbital to be used in his execution and the
qualifications of the person who will administer the drug. The Arizona Supreme
Court declined to accept jurisdiction of the petition and denied a stay of execution
on June 24, 2011.
On May 31, 2011, Bible filed a motion for substitution or association of
counsel in the district court, which the district court denied the next day. Bible
appealed on June 7, 2011. Construing the appeal as a motion in this court for
association of counsel, we granted the motion on June 17, 2011, rendering the
appeal moot. The Arizona Federal Public Defender entered an appearance as co-
counsel.
5
On June 25, 2011, Bible filed an application for permission to file a second
or successive habeas corpus petition, and two separate motions for a stay of
execution, in an effort to avoid the execution set for June 30, 2011.
II
Permitting a state prisoner to file a second or successive federal habeas
corpus petition is not the general rule, it is the exception, and an exception that
may be invoked only when the demanding standard set by Congress is met.
Section 2244(b)(2) requires dismissal of a second or successive habeas corpus
application unless:
(A) the applicant shows 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; or
(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 light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2). In other words, Bible must make a prima facie showing
his claim (1) is based on newly discovered evidence and (2) establishes that he is
actually innocent of the crimes alleged. King v. Trujillo, 638 F.3d 726, 729–30
6
(9th Cir. 2011) (per curiam).1
A
To make the first prima facie showing—that the applicant’s claim is based
on newly discovered evidence—Bible “must show that the factual predicate for the
claim could not have been discovered previously through the exercise of due
diligence.” Landrigan v. Trujillo, 623 F.3d 1253, 1256 (9th Cir. 2010). In
Landrigan, we doubted that the applicant was diligent where he waited six years to
request DNA testing after the state adopted a statute permitting such testing. See
id. (“In these circumstances a serious question exists whether the factual predicate
for the claim—results of DNA testing [on trial evidence]—could not have been
discovered earlier.”). Bible’s long-delayed and virtually last minute application
raises similar doubts. Bible waited until April 19, 2010, ten years after the
enactment of Arizona’s DNA testing statute, Ariz. Rev. Stat. § 13-4240, before
filing a motion in Arizona state court requesting DNA testing of inculpatory hair
evidence presented at trial. His motion came only after the State moved in the
1
“A prima facie showing is a sufficient showing of possible merit to warrant
a fuller exploration by the district court, and we will grant an application for an
SOS petition if it appears reasonably likely that the application satisfies the
stringent requirements for the filing of a second or successive petition.” Landrigan
v. Trujillo, 623 F.3d 1253, 1257 n.6 (9th Cir. 2010) (quoting Woratzeck v. Stewart,
118 F.3d 648, 650 (9th Cir. 1997) (per curiam)) (internal quotation marks omitted).
7
Arizona Supreme Court for a warrant of execution. Bible’s counsel attributes the
delay in seeking DNA testing to changes in Bible’s defense team, complexity of
the record, and his focus on other avenues of appeal. But the statute requires that
the factual predicate for the testing request “could not have been discovered
previously through the exercise of due diligence,” § 2244(b)(2), and the
circumstances of this case do not meet this demanding standard.
B
To make the second prima facie showing—that the applicant is actually
innocent of the crimes alleged—Bible must show that “no reasonable factfinder
would have found [him] guilty of the underlying offense.” § 2244(b)(2). Bible has
made no such showing.
Bible argues that DNA testing of the hair evidence would exonerate him.
The second or successive habeas petition that he seeks to file asserts that Arizona’s
denial of his request for DNA testing violated due process. Bible sought testing of
(a) hair found on and around the victim, which was matched to Bible at trial; (b)
hair found on Bible’s jacket, shirt, in his wallet, and on a blanket in his car, which
was matched to the victim at trial. Bible maintains that DNA testing would reveal
that the hairs taken from his clothes and car are not the victim’s, and that the hairs
found on or near the victim are not his. Such evidence, Bible claims, would “go[]
8
a long way toward exonerating him or at least showing that someone else was
involved” and that if hairs found on the victim “are from a known sex offender,
surely this would exonerate Bible.”
Bible’s argument is unpersuasive. Whatever the DNA testing of the hair
evidence might reveal, it could not refute the overwhelming inculpatory evidence
presented at Bible’s trial. In deciding Bible’s direct appeal, the Arizona Supreme
Court commented that the “evidence in this case goes far beyond overwhelming
evidence of guilt. It is not only inconsistent with any reasonable hypothesis of
innocence, it refutes any hypothesis other than Defendant’s guilt.” State v. Bible,
858 P.2d 1152, 1192 (Ariz. 1993). This assessment of the evidence holds true
even absent the forensic hair evidence presented at trial: Bible had been driving a
stolen car that substantially matched the description of a car seen speeding near the
location where the victim was last seen; Bible evaded police officers when they
tried to apprehend him, at first leading police on a high-speed chase that ended
only when he ran his car into a cattle guard, stopping it, and then fleeing on foot
before being caught; distinctive items discovered at the location where the victim’s
body was found matched items in Bible’s car, including round rubber bands, a
particular brand of hot chocolate, a particular type of vodka bottle, and a piece of
metal that matched metal missing from the steering column of Bible’s car; the
9
victim’s hair had been cut and torn using a tool consistent with knives that Bible
was carrying when arrested; fibers matching Bible’s jacket were found near the
victim’s body; and, most critically, blood matching the victim’s PGM 2+
subtype—a subtype shared by less than three percent of the population—was found
on Bible’s shirt, in a blood spatter pattern consistent with beating force.2 In light
of this overwhelming evidence, we cannot say that, absent the forensic hair
evidence presented at Bible’s trial, “no reasonable factfinder would have found
[Bible] guilty of the underlying offense.” § 2244(b)(2).
Furthermore, Bible overstates what DNA testing results favorable to him
could have established. DNA testing that revealed the presence of hairs belonging
to another individual on or around the victim, or on Bible, would not be strongly
suggestive of innocence. Bible stole the car used to transport the victim’s body, so
hair belonging to the car’s owner or a previous passenger might be found on the
sheet wrapped around the victim’s body, on the victim, or on Bible. It would also
not be surprising to find that the hairs belong to other individuals who came into
contact with Bible or the victim in the days before the crime. In short, the presence
2
Bible’s reply brief says that he “dispute[d] th[e blood] evidence on direct
appeal and it was excluded.” But the only blood-related evidence challenged and
excluded was DNA probability evidence. Test results showing that the blood on
Bible’s shirt was the same subtype as the victim’s blood was neither challenged on
appeal nor excluded. Bible, 858 P.2d at 1192.
10
of someone else’s hair would neither explain nor diminish the overwhelming
evidence of guilt.
Bible speculates that DNA testing might show the presence of hair
belonging to a known sex offender at the crime scene. But Bible does not support
such speculation with any theory of innocence. Any convicted person, no matter
how compelling the evidence against him or her, could argue that DNA testing is
necessary to rule out the unsubstantiated possibility that someone else committed
the crime. Granting an application to file a second or successive habeas petition on
this sort of speculation is not consistent with the requirement of § 2244(b)(2) that
the applicant show actual innocence.
III
Petitioner-Appellant has filed two motions to stay execution. The first is a
motion to stay pending disposition of this application, which we deny as moot.
The second is a motion to stay in light of the recent appointment of the Arizona
Federal Public Defender as associated co-counsel. We granted Petitioner-
Appellant’s motion for association of co-counsel to assist Daniel D. Maynard,
Bible’s principal attorney, in any pre-execution filings, but we made no
determination, and we do not believe, that associated co-counsel was necessary for
effective representation. See 18 U.S.C. § 3599(d) (providing that appointment of
11
co-counsel is permitted “for good cause”). Our aim in appointing the Arizona
Federal Public Defender was to permit supplementation of legal advice, not to
substitute counsel. Mr. Maynard has been competently representing Petitioner-
Appellant since November 23, 2005, and, in recent months, has zealously sought
relief on Bible’s behalf before numerous federal and state courts. Mr. Maynard, as
Bible’s former and continuing counsel, is well-acquainted with the complex record
in this case, and the Arizona Federal Public Defender, while new to this case, is
well-acquainted with the legal issues. Because Bible’s prior counsel remains on
the case, the recent addition of new counsel does not deny the “meaningful
assistance of counsel,” Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 813 (9th
Cir. 2003), contemplated by § 3599. In the circumstances of this case, a stay is not
needed for Bible to have competent assistance of counsel, and the further delay
from a stay would cause hardship and prejudice to the State and victims, given that
the appellate process in this case has already spanned more than two decades. We
decline to grant a stay of execution.
IV
We conclude that Bible’s claims do not satisfy the requirements of
§ 2244(b)(2). Bible’s Application for Permission to File a Second or Successive
Habeas Corpus Petition is DENIED.
12
Bible’s Application for a Stay of Execution pending consideration of his
application in No. 11-71782 is DENIED AS MOOT.
Bible’s Motion to Stay Execution in No. 11-16453 is DENIED.
No petition for rehearing or motion for reconsideration shall be filed or
entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).
APPLICATION DENIED. REQUESTS FOR STAY DENIED.
13
COUNSEL
Daniel D. Maynard, Maynard Cronin Erickson Curran & Sparks, PLC, Phoenix,
Arizona; Dale A. Baich, Assistant Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellant
Jeffrey A. Zick, Assistant Attorney General, Phoenix, Arizona, for
Respondent-Appellee
14