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Name: Bible v. Schriro
Case #: 07-99017
Court: US Court of Appeals
District 9 Cir
Opinion Date: 06/28/2011

Petitioner is not entitled to file a successive habeas petition unless it is based on newly discovered evidence which establishes he is actually innocent. Petitioner was convicted of the 1990 kidnaping, molest and murder of a nine-year-old girl, and sentenced to death. His conviction and sentence were upheld on direct appeal and federal habeas review. This successive federal petition followed the denial of his 2010 motion for DNA testing. Permitting a state prisoner to file a successive petition is the exception. Dismissal is required under 28 U.S.C. section 2244(b)(2) unless the applicant shows reliance on a new rule of constitutional law, made retroactive, or new facts which could not have been previously discovered exercising due diligence, and which would establish the applicant’s innocence. Here, petitioner waited 10 years after Arizona’s enactment of the DNA testing statute to file his motion. Further, even absent the evidence as to which petitioner sought DNA testing, there was overwhelming evidence of guilt. Petitioner’s application to file a successive petition was denied.