Richard Bible v. Charles Ryan ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD LYNN BIBLE, 
Petitioner-Appellant, Nos. 07-99017,

11-16453,
v. 11-71782
DORA SCHRIRO, OPINION
Respondent-Appellee.

Filed June 28, 2011
Before: Ronald M. Gould, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Per Curiam Opinion
8997
BIBLE v. SCHRIRO 8999
COUNSEL
Daniel D. Maynard, Maynard Cronin Erickson Curran &
Sparks, PLC, Phoenix, Arizona; Dale A. Baich, Assistant
Federal Public Defender, Phoenix, Arizona; for the petitioner-
appellant.
Jeffrey A. Zick, Assistant Attorney General, Phoenix, Ari-
zona, for the respondent-appellee.
OPINION
PER CURIAM:
Richard Lynn Bible requests permission to file a second or
successive application for a writ of habeas corpus in the Dis-
trict 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
9000 BIBLE v. SCHRIRO
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 discov-
ered 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 per-
son and a large folding knife where Bible was hid-
ing. Within hours of his arrest and on the same day
that Jennifer disappeared, Bible confessed to stealing
BIBLE v. SCHRIRO 9001
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, a piece of
metal from the steering column that had been cut
open, a case of twenty 50-milliliter bottles of “Sun-
tory” 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
9002 BIBLE v. SCHRIRO
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 Jenni-
fer’s body and on her t-shirt. 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 Jenni-
fer’s body were similar to fibers from Bible’s jacket.
A blue or purple fiber on the shoelace binding Jenni-
fer’s hands also matched the lining of Bible’s jacket.
Several hairs on Bible’s clothing were similar to Jen-
nifer’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. SCHRIRO 9003
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 Ari-
zona 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 evi-
dence he sought to test still exists, and second, that there was
not a reasonable probability that he would not have been con-
victed if exculpatory results had been obtained 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 execu-
tion 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, render-
ing the appeal moot. The Arizona Federal Public Defender
entered an appearance as co-counsel.
On June 25, 2011, Bible filed an application for permission
to file a second or successive habeas corpus petition, and two
9004 BIBLE v. SCHRIRO
separate motions for a stay of execution, in an effort to avoid
the execution set for June 30, 2011.
II
[1] Permitting a state prisoner to file a second or succes-
sive 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 exer-
cise 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 evi-
dence 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 discov-
ered evidence and (2) establishes that he is actually innocent
of the crimes alleged. King v. Trujillo, 638 F.3d 726, 729-30
(9th Cir. 2011) (per curiam).1
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).
BIBLE v. SCHRIRO 9005
A
[2] To make the first prima facie showing—that the appli-
cant’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 evi-
dence presented at trial. His motion came only after the State
moved in the Arizona Supreme Court for a warrant of execu-
tion. Bible’s counsel attributes the delay in seeking DNA test-
ing to changes in Bible’s defense team, complexity of the
record, and his focus on other avenues of appeal. But the stat-
ute requires that the factual predicate for the testing request
“could not have been discovered previously through the exer-
cise 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 appli-
cant 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
9006 BIBLE v. SCHRIRO
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 vic-
tim’s, and that the hairs found on or near the victim are not
his. Such evidence, Bible claims, would “go[ ] 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.”
[3] 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 incon-
sistent 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 evi-
dence holds true even absent the forensic hair evidence pres-
ented 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 lead-
ing 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 loca-
tion 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 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 vic-
BIBLE v. SCHRIRO 9007
tim’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 reason-
able factfinder would have found [Bible] guilty of the under-
lying 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 of someone
else’s hair would neither explain nor diminish the overwhelm-
ing evidence of guilt.
[4] Bible speculates that DNA testing might show the pres-
ence 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 pos-
sibility 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.
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 vic-
tim’s blood was neither challenged on appeal nor excluded. Bible, 858
P.2d at 1192.
9008 BIBLE v. SCHRIRO
III
[5] Petitioner-Appellant has filed two motions to stay exe-
cution. 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 Fed-
eral 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 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 rep-
resenting 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 preju-
dice 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 require-
ments of § 2244(b)(2). Bible’s Application for Permission to
BIBLE v. SCHRIRO 9009
File a Second or Successive Habeas Corpus Petition is
DENIED.
Bible’s Application for a Stay of Execution pending con-
sideration 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.