Bible v. Schriro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD LYNN BIBLE, 

Petitioner-Appellant,

No. 07-99017

v.

CHARLES L. RYAN, Director of the  D.C. No.

CV-98-01859-PGR

Arizona Department of

OPINION

Corrections,*

Respondent-Appellee.



Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted

March 26, 2009—San Francisco, California

Filed July 1, 2009

Before: Ronald M. Gould, Richard R. Clifton, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Gould

*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as

Director of the Arizona Department of Corrections. Fed. R. App. P.

43(c)(2).

8167

8170 BIBLE v. RYAN

COUNSEL

Daniel D. Maynard (argued), Maynard Cronin Erickson Cur-

ran & Sparks, PLC, Phoenix, Arizona, for petitioner-

appellant, Richard Lynn Bible.

Terry Goddard, Kent Cattani, Robert J. Gorman, J.D. Nielsen,

Jeffrey A. Zick (argued), Office of the Attorney General for

Arizona, Phoenix, Arizona, for respondent-appellee, Charles

L. Ryan.

OPINION

GOULD, Circuit Judge:

On April 12, 1990, Appellant Richard Lynn Bible (“Bible”)

was convicted of first-degree murder, kidnapping, and moles-

tation of a nine-year-old girl. He received a death sentence.

Bible now appeals the denial of his petition for writ of habeas

corpus by the United States District Court for the District of

Arizona. He asserts claims of constitutional error in both the

guilt and the penalty phases of his trial. The district court

issued a certificate of appealability on his claim of ineffective

assistance of counsel at the sentencing stage of his trial.

Having carefully and independently evaluated the mitigat-

ing evidence and the aggravating evidence, we conclude that

Bible was not prejudiced by any of his counsel’s alleged

errors during the sentencing phase of his trial. There is no rea-

sonable probability that the sentencer would have reached a

different result in the absence of the alleged errors. We affirm

the district court’s denial of habeas relief.

I

A

On June 6, 1988, around 10:30 a.m., the nine-year-old vic-

tim, Jennifer Wilson, began riding her bicycle to a ranch a

BIBLE v. RYAN 8171

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 road-

blocks, 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 steal-

ing the GMC vehicle. Police held Bible without bail and con-

fiscated his clothing.

In the stolen GMC, which had been used to deliver newspa-

pers, police found a blanket, numerous round rubber bands

but no rubber band bags, a piece of metal from the steering

8172 BIBLE v. RYAN

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 hap-

pened 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 Jenni-

fer’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 decom-

posed, and she had multiple skull fractures and a broken jaw-

bone indicating that blows to her head caused her death.

Around Jennifer’s body lay distinctive items: an unwrap-

ped, 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 investi-

gator was able to duplicate this pattern by using the knives

BIBLE v. RYAN 8173

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. 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 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.

B

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. After the jury returned the verdict,

Bible’s lead attorney, Francis Koopman (“Koopman”), moved

for a pre-sentence psychological evaluation requesting Dr.

Otto Bendheim be appointed for this purpose and a sentencing

hearing date be set for at least sixty days later. The prosecutor

did not oppose Dr. Bendheim’s appointment, but asked that

Dr. Jeffrey Harrison be appointed as well. The court

appointed both doctors to perform a mental evaluation and

directed them to evaluate Bible’s mental condition at the time

he committed the offenses and discuss the relation of any

mental disease or defect to the offense. The court also sought

the doctors’ opinions on Bible’s potential for rehabilitation

and his feelings of remorse. After defense counsel stipulated

8174 BIBLE v. RYAN

to the sixty-day deadline, the judge scheduled the sentencing

hearing for June 12, 1990.

Dr. Bendheim filed his report after interviewing Bible on

three occasions and after reviewing “thousands of pages of [ ]

material concerning [Bible’s] background and present prose-

cution.” Dr. Bendheim’s findings supported the mitigating

evidence advanced by the defense: As Dr. Bendheim saw it,

Bible’s ability to conform his conduct to the law was substan-

tially impaired by alcohol and drug use. During the inter-

views, Bible had told Dr. Bendheim that he had been a heavy

user of drugs until four days before the crime and that he had

experienced serious withdrawal when he could not obtain

drugs for those days. Although Dr. Bendheim did not deter-

mine that Bible was legally insane, he opined that Bible suf-

fered from some diminished capacity at the time of the

offenses, “with not only curtailment of proper judgment but

also perhaps an inability to resist impulses” due to prolonged

drug and alcohol abuse. Dr. Bendheim went on to suggest that

“[i]n the absence of serious and prolonged voluntary con-

sumption of very dangerous drugs and alcohol and in the

absence of the withdrawal symptom-atology . . . these

offenses, more than likely would not have taken place.” And

because of Bible’s addiction and the resulting withdrawal

symptoms, “his general personality and character traits, made

it more difficult for [him] to live within the requirements of

the law.”

Dr. Harrison opined that Bible had no “mental illness or

mental disorder requiring treatment” but does have “a very

serious characterological disturbance in the form of Antisocial

Personality Disorder.” He noted that “Bible displays an

absence of anger, depression and anxiety” and that “the most

likely explanation for his violent tendencies is his drug addic-

tion.” He concluded that Bible “clearly understood the wrong-

fulness of the action at the time of the crime.”

Bible’s second chair defense attorney Lee Brooke Phillips

(“Phillips”) took the lead on Bible’s mitigation case. The

BIBLE v. RYAN 8175

defense filed its sentencing memorandum on June 7, 1990.

The defense argued, basing its contentions on Dr. Bendheim’s

report, that Bible’s ability to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of

the law was substantially impaired within the meaning of an

express statutory mitigating factor set forth in Ariz. Rev. Stat.

§ 13-703(G)(1). The defense also argued that there were non-

statutory mitigating factors such as a difficult family history

and a low risk of future criminal conduct (because he would

spend the rest of his life in prison). The defense in the sen-

tencing memorandum also argued that any lack of remorseful

feelings could not be used against Bible because he had cho-

sen not to admit guilt. Finally, defense counsel included a plea

for mercy.

The next day, Phillips filed a motion to continue the mitiga-

tion aspect of the sentencing hearing. Phillips stated that he

was prepared to proceed on June 12 as scheduled “so that the

aggravation part of the hearing can go forward” but needed

additional time for the mitigation phase because of Dr. Bend-

heim’s report, which established “strong evidence of mental

impairment or diminished capacity as a result of severe drug

and alcohol addiction.” In addition, counsel stated that they

had just discovered that Bible “suffered significant health

problems as a child which could be the basis for his current

mental condition.” In support of the motion, Mrs. Bible,

Bible’s mother, gave an affidavit reciting that Bible had a dif-

ficult birth and was a sickly child, and that she had not pro-

vided Bible’s medical records to defense counsel earlier

because she “did not realize that these were the types of medi-

cal problems that [the defense] would be interested in.”

Defense counsel also moved for the appointment of additional

experts, specifically a psychiatrist, neuropsychiatrist or neu-

rologist, and a toxicologist. During the hearing on the motion,

Phillips clarified that he only wished to continue the expert

witness testimony for one week because Dr. Bendheim was

unavailable,1 but he was able to proceed with the aggravation

1

Dr. Bendheim later became available and testified at the hearing.

8176 BIBLE v. RYAN

aspect and could present a majority of the mitigation wit-

nesses. Further, the defense team explained that they had met

with Bible three separate times for two hours each and had

“gone over his complete medical history” but Bible said he

was never hospitalized and “never had medical type problems

that [counsel] were concerned about.”2 Mrs. Bible was inter-

viewed after Bible’s conviction, but it was only in preparation

for the sentencing hearing, when Mrs. Bible was asked again

about her son’s medical history, that she mentioned his early

childhood illnesses. The court denied the motion to continue

and the motion for the appointment of additional experts, stat-

ing that Bible “has failed to use due diligence in preparing for

the sentencing hearing.”

The sentencing hearing proceeded on June 12, 1990. The

defense presented extensive mitigation testimony by calling

thirteen witnesses during the three-day hearing. Bible’s family

and friends testified that Bible had a close relationship to his

family, that no abuse occurred during his childhood, and that

he was an affectionate youth.3 Mrs. Bible testified that she and

Bible’s father raised him, and he was the second of four chil-

dren. Mrs. Bible testified that, following a difficult delivery,

Bible’s lungs were so full of fluid that he was given an “ex-

ceptional amount of oxygen.” She said that Bible was contin-

ually ill as a child with fevers and allergies, and was

hospitalized for bronchitis or pneumonia. Further, she testi-

fied that Bible was a hyperactive child, and doctors prescribed

amphetamines to control him. Mrs. Bible also stated that

Bible complained of ringing in his ears and headaches but she

never took him to a neurologist and he never underwent a CT

scan.

2

Bible was only an infant or toddler when he was allegedly hospitalized.

3

Bible’s father, mother, sisters, brother, grandmother, ex-girlfriends,

defense investigator, and friends, among others, testified on his behalf at

the hearing.

BIBLE v. RYAN 8177

Mrs. Bible testified that Bible kept in touch with her when

he went to prison in 1981 for his previous sexual assault and

kidnapping convictions, and that he wrote her letters express-

ing his love for her and his family. After Bible was released

from prison in 1987, he sought counseling but stopped the

sessions for financial reasons. He also dated Josephine Sando-

val for about a year. Sandoval testified that they had a normal

relationship and Bible cared for and loved her young son.

Sandoval then described Bible’s avid drug use, stating that he

snorted cocaine and methamphetamines and may have used

drugs intravenously (though she was never a witness to it).

She also stated that when Bible used drugs, he was unpredict-

able, but when he was not using drugs, he was a “pretty nice”

guy.

Bible’s father stated that he frequently took his sons hunt-

ing and fishing, that Bible had enjoyed those activities, and

that Bible never exhibited violence or aggression, nor was he

cruel to animals. Bible’s brother echoed this testimony.

Bible’s father also testified that Bible loved his nieces and had

never lost his temper with them. Bible’s father opined that if

Bible had committed the crimes charged, the only explanation

was drug use.

Bible’s younger sister also testified. She stated that she and

Bible had been close and Bible had been protective of her.

She said that Bible was appropriate with her children, that he

liked children, and that he was a caring person. Several of

Bible’s friends also testified that Bible was sweet, caring, and

appropriate with children. Bible’s sister also described Bible’s

drug use. According to her, before Bible went to prison for

the 1981 sexual assault and kidnapping, Bible used drugs on

weekends, but after his release he used drugs more heavily.

Shortly before his arrest, Bible had told her he thought that he

was having a nervous breakdown.

The defense investigator, Vanessa Lawson, testified that

she had found Bible socially appropriate, pleasant, coopera-

8178 BIBLE v. RYAN

tive, and honest. He was remorseful toward the Wilson family

and frightened about his future. She also testified that Bible

had foiled an escape attempt while in jail because he feared

for the safety of a prison guard.

Dr. Bendheim, the defense expert, also testified. He said

that Bible “conducted himself very well” during his inter-

views and was “polite, courteous, [and] cooperative.” He also

testified that (1) Bible had come from a good home, but he

began using alcohol and drugs in his early teens; (2) he had

abused drugs almost daily during the year before the murder;

(3) he was suffering from withdrawal at the time of the crime,

resulting in a state of diminished capacity; and (4) absent the

effects of drugs and alcohol, Bible would not have committed

the crimes.

Dr. Bendheim stated that when drugs are used for many

months or several years and then withdrawn, “the person suf-

fers a great deal and tries to alleviate his suffering, often by

totally inappropriate means, . . . his capacity to conduct him-

self properly and decently is again diminished in many

instances.” Dr. Bendheim opined that Bible would have been

in a state of diminished capacity during this period of with-

drawal. Bible told Dr. Bendheim that he had been heavily

using drugs until four days before the crime, and “had serious

withdrawal symptoms, sweats, sleeplessness, nervousness,

agitation, and during that [time] he tried to find relief by eat-

ing sweets, honey, peanut butter, things of that nature.” Dr.

Bendheim accepted Bible’s account as a truthful description

of withdrawal symptoms.

Dr. Bendheim then stated that prolonged use of amphet-

amines and cocaine can result in brain changes, and although

not easy to detect, such changes can be detected with certain

tools like brain scans or brain wave tests. Dr. Bendheim, how-

ever, noted that a number of physicians specialize in with-

drawal symptomatology and detoxification who have more

experience in the area than himself. He said that additional

BIBLE v. RYAN 8179

tests could determine Bible’s mental impairment or the effect

that the severe drug use has had on his brain, and that he sup-

ported defense counsel’s need for additional examinations.

Dr. Bendheim stated that he “would suspect the possibility,

even probability [of demonstrable brain change], but I can’t

prove it without” tests.

After defense counsel concluded, the prosecution called

one rebuttal witness, Detective Mike Rice, who had inter-

viewed Bible on the day of his arrest on June 6, 1988. Detec-

tive Rice stated that Bible did not appear to be impaired

during the interview and did not seem to be suffering from

withdrawal. According to Detective Rice, Bible did not

appear to have the “shakes” or chills, did not complain of

headaches, and did not request food, water, or medical help.

Bible told Detective Rice that it had been four or five days

since he last used drugs.

Phillips’s closing argument focused on Bible’s drug use

and how that could have led to his impairment at the time of

the murder. Phillips described Bible’s love for his family and

urged the court not to be influenced by the public frenzy.

In sentencing Bible, the judge found three aggravating cir-

cumstances existed beyond a reasonable doubt:4 (1) that Bible

previously had been convicted of a felony involving the use

or threat of violence (the 1981 convictions of sexual assault

and kidnapping); (2) that Bible had committed the murder in

an especially cruel manner because the victim suffered men-

tally and physically; and (3) that Bible was an adult and the

4

Arizona law at the time of Bible’s trial and sentencing required the

judge presiding over the trial to decide whether to impose the death pen-

alty. See Ariz. Rev. Stat. § 13-703(B) (1990). While the Supreme Court

later struck down Arizona’s capital sentencing scheme in Ring v. Arizona,

536 U.S. 584 (2002), the holding in Ring that aggravating factors must be

found by a jury rather than a judge “does not apply retroactively” to cases,

like this one, that are “already final on direct review.” Schriro v. Summer-

lin, 542 U.S. 348, 358 (2004).

8180 BIBLE v. RYAN

victim was less than fifteen years of age at the time of the

offense. The court then considered and rejected the mitigating

circumstances regarding Bible’s drug use. It found that

[N]either the defendant’s ability to appreciate the

wrongfulness of his conduct [n]or to conform his

conduct to the requirements of law were substan-

tially impaired. Even the defense experts found that

he appreciated the wrongfulness of his conduct. Doc-

tor Bendheim only found that it would be more diffi-

cult for the defendant to conform his conduct to the

requirements of law, not substantial impairment.

This difficulty was due more to his general personal-

ity and character than to drugs.

...

Even if the defendant had been experiencing a des-

perate craving for drugs that day, Jennifer Wilson

did not stand between him and his drugs, nor did she

provide any means for him to obtain drugs. Her kill-

ing had nothing to do with drugs.

If the defendant’s condition were truly such that he

would go into withdrawals so severe that he acted

strange when deprived of drugs, then this would

have manifested after his imprisonment in the

County Jail on June 6. All the evidence is to the con-

trary: there were no symptoms of withdrawal.

This is not a mitigating circumstance.

[T]he defendant was not intoxicated on June 6, 1988.

Only two small bottles of vodka were missing from

the carton. If the defendant consumed them, the

amount of alcohol they contained would not suffice

to make him intoxicated to the point where he would

qualify for intoxication as a mitigating circumstance.

BIBLE v. RYAN 8181

The defendant denies that he was intoxicated on any-

thing else, claiming instead that he was experiencing

withdrawals due to drug deprivation for several days.

No one who had contact with him on June 6 reported

that he acted intoxicated. They said he acted normal.

This is not a mitigating circumstance.

The trial judge found that Bible did not have a difficult

family history and stated that the mutual love between him

and his family did not qualify as mitigating. In addition, the

trial judge determined that Bible was not remorseful and that

he presented a high risk of future criminal conduct. Conclud-

ing, the trial court stated that “even looking at the case in the

light most favorable to” Bible, there were no mitigating cir-

cumstances and no way to cumulate or aggregate them. The

trial court then sentenced Bible to death.

C

Bible appealed his conviction and sentence. The Arizona

Supreme Court affirmed the judgment on direct appeal. State

v. Bible, 858 P.2d 1152 (Ariz. 1993). The Arizona Supreme

Court held that the trial court had erred in finding that Bible’s

prior conviction was an aggravating factor because “neither

the use nor the threat of violence was a necessary element

for” either kidnapping or sexual assault. Id. at 1207. Because

two aggravating circumstances remained, however, and

because the “trial court correctly characterized the lack of

mitigating evidence,” it affirmed Bible’s sentence. Id. at 1209,

1212. The Arizona Supreme Court reviewed the record and

concluded that “nothing submitted to the trial court qualifies

as more than de minimis evidence of mitigation” so there was

“simply nothing to weigh or balance.” Id. at 1212.

The United States Supreme Court rejected Bible’s petition

for a writ of certiorari. Bible v. Arizona, 511 U.S. 1046 (1994)

(mem.).

8182 BIBLE v. RYAN

Bible filed a petition for state post-conviction relief

(“PCR”) on November 29, 1996. In his PCR petition, Bible

claimed that he received ineffective assistance of counsel at

the penalty phase. He attached several affidavits, including

one from a mitigation specialist, Mary Durand, who attested

that Bible’s mitigation investigation was “totally inadequate”

and did not meet the minimal requirements in a capital case

because

No multi-generational or trans-generational family

history was done by the defense, no review of birth,

school, mental health, medical or employment

records was done by the defense, no review of law

enforcement, court records or D.O.C. records, and no

complete psychological or psychiatric examination

was conducted. No mitigation specialist or expert

was ever consulted to determine needs.

Bible’s defense investigator, Lawson, agreed with Ms.

Durand’s assessment; the mitigation investigation she con-

ducted was “completely inadequate and fell well below the

standard of effective representation.” Phillips attested that the

sentencing preparation had not begun in 1988 as required by

the ABA guidelines for counsel in capital cases; and that he

had been unaware of the standards for presentation of mitiga-

tion in capital cases. A psychologist, Richard Lanyon, also

submitted an affidavit. Though Lanyon did not state that he

had ever personally evaluated Bible, he attested that “neurop-

sychological examination can document the effects of brain

damage” and “certain factors indicate that a neuropsychologi-

cal examination is warranted” such as “a difficult child birth,

oxygen deprivation in childhood, one or more high fevers in

childhood, headaches in childhood, and inhalation of vapors

in childhood.” The affidavit did not state, however, that Bible

suffered from any brain damage.

The PCR court denied Bible’s claim of ineffective assis-

tance of counsel at sentencing on November 24, 1997. It held

BIBLE v. RYAN 8183

that Bible’s claim was speculative, stating “[t]here is . . . no

credible assertion, supported by affidavit, showing what miti-

gation evidence might have been discovered, or argument as

to how the evidence might have resulted in a different sen-

tence. An evidentiary hearing is not required where Petitioner

stops short of revealing what relevant evidence would have

been presented.”

Bible filed a federal habeas petition in the District of Ari-

zona on October 15, 1998. The district court denied Bible’s

petition and granted a certificate of appealability on the issue

of ineffective assistance of counsel at the penalty stage on

July 25, 2007. The district court then denied Bible’s motion

for reconsideration.

On appeal, having considered the issue of ineffective assis-

tance of counsel at the penalty stage, we reject this claim

under the appropriate standard for reviewing the denial of a

petition for habeas corpus under 28 U.S.C. § 2254.

II

We review a district court’s denial of a habeas petition de

novo. Mejia v. Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008).

Bible filed this petition after the effective date of the Antiter-

rorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Thus, we apply AEDPA deference to any state court decision

on the merits. Id. We must deny a habeas petition unless the

state court’s adjudication of the claims resulted in a decision

that was contrary to, or involved an unreasonable application

of, clearly established federal law as determined by the United

States Supreme Court or was based on an unreasonable deter-

mination of the facts in light of the evidence presented before

the state courts. 28 U.S.C. § 2254(d). The Supreme Court

need not apply a specific legal rule to an identical fact pattern

as in the instant case for that rule to qualify as clearly estab-

lished law. Panetti v. Quarterman, 127 S. Ct. 2842, 2858

(2007). And Ninth Circuit precedent may provide persuasive

8184 BIBLE v. RYAN

authority for purposes of determining whether a state court

decision is an unreasonable application of Supreme Court pre-

cedent. Mejia, 534 F.3d at 1042.

III

Bible contends that he received ineffective assistance of

counsel at sentencing because his counsel did not diligently

pursue mitigation evidence and provided little guidance to the

mental health expert. Regardless of any mitigation case defi-

ciencies, given the significant mitigating evidence actually

presented, the speculative mitigating evidence counsel failed

to introduce is insufficient to outweigh the powerful aggravat-

ing circumstances surrounding Jennifer’s murder. We con-

clude that the Arizona court’s determination that Bible

suffered no prejudice was not unreasonable.

[1] To prevail on a claim of ineffective assistance of coun-

sel, Bible must show that (1) his trial counsel’s performance

“fell below an objective standard of reasonableness” and (2)

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688,

694 (1984). A “[f]ailure to make the required showing of

either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.” Id. at 700. We “need not determine

whether counsel’s performance was deficient before examin-

ing the prejudice suffered by the defendant as a result of the

alleged deficiencies.” Id. at 697.

Establishing prejudice in the death sentence context

requires a showing that “there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did

not warrant death.” Id. at 695. The defendant “ ‘bears the

highly demanding and heavy burden [of] establishing actual

prejudice.’ ” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.

2005) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000));

BIBLE v. RYAN 8185

see also Strickland, 466 U.S. at 691 (“An error by counsel,

even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had

no effect on the judgment.”).

[2] We conclude that, after considering the mitigating evi-

dence, “both that which was introduced and that which was

omitted or understated,” Mayfield v. Woodford, 270 F.3d 915,

928 (9th Cir. 2001) (en banc), alongside the aggravating evi-

dence, Bible cannot demonstrate that his counsel’s perfor-

mance at sentencing prejudiced him. See Strickland, 466 U.S.

at 691. This is so because given the aggravating factors

related to Jennifer’s murder, we cannot say that there is a rea-

sonable probability that the sentence would have been differ-

ent. The cruelty of the murder, in which Bible stripped and

bound his child victim with her own shoelace, could not have

been lost on the sentencing judge, and all theories of mitiga-

tion were speculative or were patently insufficient to over-

come these aggravating factors.

Bible alleges that his attorneys were ineffective because

they did not conduct an adequate investigation into Bible’s

social and medical history. His argument is: if his counsel had

investigated further, they would have learned that Bible had

suffered from high fevers and other illnesses as a small child,

and they could have relayed this information to Dr. Bendheim

and others. Then, the evaluating doctors may have conducted

further tests to determine whether Bible had brain damage as

a result of his childhood illnesses.

[3] Bible does not contend that he actually suffers from

organic brain damage and he submitted no evidence of that;

he merely argues that his childhood events are potential

causes of brain dysfunction that can be an explanation for vio-

lent behavior. Bible’s argument, as we see it, relies on specu-

lation that he may have some type of organic brain

dysfunction or disorder. This speculation is not sufficient to

establish prejudice. See Gonzalez v. Knowles, 515 F.3d 1006,

8186 BIBLE v. RYAN

1015-16 (9th Cir. 2008) (“As to the failure to investigate men-

tal health mitigation, Gonzalez does not contend that he actu-

ally suffered from a mental illness; he merely argues that if

tests had been done, and if they had shown evidence of some

brain damage or trauma, it might have resulted in a lower sen-

tence. Such speculation is plainly insufficient to establish

prejudice.”); see also King v. Schriro, 537 F.3d 1062, 1074

(9th Cir. 2008) (concluding that there was no prejudice where

the petition did not contain information that would show what

the results of a more complete social and medical history

would have been); Raley v. Ylst, 470 F.3d 792, 802 (9th Cir.

2006) (denying habeas relief where counsel’s experts had not

conclusively opined the defendant had a mental defect and

their testimony would have opened the door to other damag-

ing evidence). Bible does not demonstrate that the results of

further testing would have found a brain disorder. In his peti-

tion to the PCR court, Bible submitted a brief affidavit from

a psychologist who opined that a neurological examination

could document the effects of brain damage, but did not

express the opinion that Bible suffered from any effects from

early illnesses. Bible has not shown that more tests would

have discovered and disclosed mitigation evidence sufficient

to establish prejudice.

[4] Further, at sentencing his counsel introduced evidence

of Bible’s potential brain damage from drug and alcohol

abuse, and so any further evidence of this speculative brain

damage would have been cumulative. The sentencing judge

heard that Bible may have brain damage, as well as dimin-

ished capacity, due to his extensive drug and alcohol abuse.

Phillips presented evidence of Bible’s history of drug and

alcohol abuse through the expert witness and testimony of

family and friends. Phillips also elicited testimony from Mrs.

Bible that her son had experienced a difficult childbirth,

needed oxygen when he was born, and had a history of high

fevers, though he never tied that evidence to any potential for

brain damage. Cumulative evidence of diminished capacity,

duplicating what was presented, does not create a reasonable

BIBLE v. RYAN 8187

probability that the sentence would have been different. See

Babbitt v. Calderon, 151 F.3d 1170, 1176 (9th Cir. 1998)

(“Even if counsel’s actions were deficient, Babbitt cannot

show prejudice. Again, the evidence he now seeks to intro-

duce is largely cumulative of the evidence actually presented

during the penalty phase.”). We conclude that there is no rea-

sonable probability that the judge would have imposed a dif-

ferent sentence in light of Bible’s speculative theory of

possible brain damage from childhood illnesses. The sentenc-

ing judge heard evidence of Bible’s potential brain damage

and sentenced Bible to death in the face of that evidence. The

Arizona Supreme Court, conducting an independent review of

the evidence, stated that none of the evidence that Bible’s

counsel presented qualified as more than de minimis evidence

of mitigation. Bible, 858 P.2d at 1212.

“In assessing prejudice, we reweigh the evidence in aggra-

vation against the totality of available mitigating evidence.”

Wiggins v. Smith, 539 U.S. 510, 534 (2003); see also Brown

v. Ornoski, 503 F.3d 1006, 1016 (9th Cir. 2007) (denying a

petition for habeas relief based on extensive aggravating evi-

dence); Allen v. Woodford, 395 F.3d at 1008-09 (same). In

Brown, the defendant had a prior conviction for rape of a

young girl, had raped and murdered a young victim in the

case, and had called the family after the event, tormenting

them. Brown, 503 F.3d at 1016. In those circumstances, the

additional evidence of the defendant’s abuse as a child, his

dyslexia, and his attention deficit disorder were insufficient to

undermine confidence in the sentence. Id. In Allen, the defen-

dant proffered many witnesses who would have testified

about the poor conditions that he lived in as a child, the loss

of his sister during childhood, his hard working nature, his

involvement in the church, and the close family ties he had.

395 F.3d at 1002-03. Allen’s evidence did not undermine our

confidence when considered in light of the defendant’s “long

history of orchestrating and committing violent robberies and

burglaries,” his direction of the murder of a witness from

prison, and his lack of remorse. Id. at 1009. In Woodford v.

8188 BIBLE v. RYAN

Visciotti, the Supreme Court held that the California Supreme

Court’s decision—that Visciotti had suffered no prejudice

from his counsel’s failure to investigate and present evidence

of a difficult childhood, seizure disorders, psychological

abuse, and brain damage because of overwhelming aggravat-

ing factors—was not unreasonable. 537 U.S. 19, 26 (2002)

(per curiam). The evidence of a minimal brain injury had been

introduced to the jury, though Visciotti’s counsel had made

some key concessions in closing argument. Id. at 25. Never-

theless, because of Visciotti’s cold-blooded execution-style

crimes, the California Supreme Court’s decision that coun-

sel’s deficiencies did not undermine confidence in the out-

come was not unreasonable. Id. at 27.

[5] Bible, like the defendants in Brown, Allen, and Visciotti

has a significant amount of aggravating circumstances that he

would need to overcome. He had murdered a nine-year-old

child in an especially cruel manner. While significant aggra-

vating circumstances do not preclude a conclusion of preju-

dice, we cannot conclude here that the Arizona court’s

decision was unreasonable. Bible’s speculative evidence does

not give rise to a reasonable probability that Bible’s sentence

would have been different in light of the aggravating factors.

It is possible that Bible may have brain damage from child-

hood illnesses. But Bible’s possible brain damage due to drug

addiction was presented at the sentencing hearing. None of his

mitigation evidence, including his possible brain damage due

to his extensive drug use, altered the judge’s sentence. We

hold that the absence of evidence that was cumulative of what

had already been presented and that was speculative in nature

does not undermine our confidence in the outcome of Bible’s

sentencing hearing. Under the applicable standard of review,

we cannot properly say that the Arizona court’s decision that

Bible suffered no prejudice was an unreasonable application

of Strickland.

BIBLE v. RYAN 8189

Based on the highly deferential AEDPA standard, Bible is

not entitled to habeas relief on this claim.5

AFFIRMED.

5

Bible also raises several other issues that have not been certified for

appeal. These include whether Bible was denied a fair trial because of pre-

trial publicity, trial publicity, and courtroom atmosphere, whether Bible

was denied a fair trial because of the trial court’s denial of a motion to

change venue, whether Bible received ineffective assistance of counsel at

the jury voir dire and the guilt phase of the trial, whether the voir dire was

insufficient, whether Bible’s Confrontation rights were violated, and

whether there was sufficient evidence for the trial court to find the aggra-

vating circumstance that Jennifer’s murder was especially cruel. After

ordering the parties to brief all of the uncertified issues, we carefully

examined each of them, applying the Miller-El v. Cockrell, 537 U.S. 322

(2003) standard, which requires a petitioner to “ ‘demonstrate that reason-

able jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.’ ” Id. at 338 (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)). We agree with the district court’s determination

that these uncertified claims do not meet this standard.