FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

RICHARD LYNN BIBLE,

 Petitioner - Appellant,

 v.

DORA SCHRIRO,

 Respondent - Appellee.

Nos. 

07-99017, 11-16453, 11-71782

OPINION

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

FILED

JUN 28 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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,
3

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.
4

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 firstdegree 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
5

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 cocounsel.
6

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
 “A prima facie showing is a sufficient showing of possible merit to warrant 1

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

(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
8

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[]
9

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
 Bible’s reply brief says that he “dispute[d] th[e blood] evidence on direct 2

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

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. In light 2

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
11

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 PetitionerAppellant’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
12

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 PetitionerAppellant 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. 
13

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.
14

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