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USCA9 Blocks Murderer's Successive Habeas Petition

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Notwithstanding my deservedly strong condemnation of the Ninth Circuit's record this morning, it is a large court with some (not enough) very good judges.  Today in Bible v. Ryan, USCA9 correctly enforced the most successful of Congress's 1996 reforms, the strict limit on a second federal habeas petition by a murderer who has already had one petition heard and rejected.

Twenty-three years ago, Richard Bible kidnapped, molested, and murdered Jennifer Wilson, age 9.  His appeals took far too long, culminating in a Ninth Circuit opinion issued two years ago.  He has an execution date of June 30.  He waited until this spring, ten years after Arizona enacted a DNA testing law, to ask for testing of some hair found at the crime scene.

As is so often true in these cases, the test would not prove anything even if it did come out the way Bible claims.  "Whatever the DNA testing of the hair
evidence might reveal, it could not refute the overwhelming inculpatory evidence
presented at Bible's trial."

The panel of Judges Gould, Clifton, and Bybee denied permission to file a second habeas petition and denied a stay of execution.

Update (6/29):  The US Supreme Court today denied a stay of execution and a petition to review the decision of the Arizona Supreme Court in the same case.  The high court has no jurisdiction to review the Ninth Circuit's denial of permission to file a successive petition, and no petition for rehearing is permitted in the Ninth itself.  See 28 U.S.C. ยง2244(b)(3)(E).

Update 2:  Judge Thomas of USCA9 issued an order authorizing Bible to petition for rehearing of the stay order despite the fact that petitioning for rehearing of the successive petition order (without which there is no reason to stay) is expressly forbidden by law.  Bible filed the petition, the state responded, and no judge called for a vote, resulting in denial -- all within one day.  Courts, even USCA9, can move on these things when they want to.  It shouldn't take an imminent execution to make them want to.  AEDPA was supposed to fix that.

4 Comments

President Obama has been quite slow in filling vacancies on the Ninth Circuit. He has yet to even make nominations for three of the four open spots. Any idea what the hold-up is?

Wouldn't it be possible for the Ninth to rehear en banc sua sponte? I believe that they pulled that stunt in Kevin Cooper.

Thanks for the second update. Apparently, there are some death sentences which even the liberals on the Ninth will not stop.

Bible has been executed, and the world instantly became a better place. This worst of the worst killer should have been executed at least a decade ago.

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