FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC JOHN KING,

 Petitioner,

 v.

ERNEST TRUJILLO, Warden of Arizona

State Prison Complex-Eyman, 

 and

CHARLES L. RYAN, Director of the

Arizona Department of Corrections,

 Respondents.

No. 11-70847

ORDER

Filed March 28, 2011

Before: KOZINSKI, Chief Judge, KLEINFELD, and TALLMAN, Circuit Judges.

PER CURIAM:

Pursuant to 28 U.S.C. § 2244(b)(3) of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Eric John King, an Arizona prisoner on death row,

requests permission to file a second or successive application for a writ of habeas

corpus in the District of Arizona. Additionally, he asks that we stay his execution,

currently scheduled for March 29, 2011. We deny both requests.

FILED

MAR 28 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
1

 Because the facts of King’s crimes were described in our previous denial of

habeas relief, King v. Schriro, 537 F.3d 1062, 1064–67 (9th Cir. 2008), cert.

denied, 129 S. Ct. 1582 (2009), we will not discuss them here. 

2

 State v. King, No. CR 1990-000050, slip op. at 4 (Super. Ct. Ariz. Feb. 8,

2011).

3

 The term “recording” refers to the physical tape upon which the images

captured by two of the store’s time-lapse surveillance cameras were recorded.

2

FACTS & PROCEDURAL HISTORY

King was convicted in Arizona state court on September 5, 1990, for the

December 27, 1989, armed robbery and murders of Ron Barman, a conveniencestore clerk, and Richard Butts, the store’s security guard.1

 He was sentenced to

death on March 4, 1991. Since then, he has filed numerous state and federal

appeals in an attempt to have both his conviction and sentence set aside. None

have been successful. On February 8, 2011, the Arizona Supreme Court granted

the State’s motion for a warrant of execution. The warrant authorizes the State to

execute King at 10 a.m. on March 29, 2011, and is valid for twenty-four hours. 

The Maricopa County Superior Court dismissed King’s fourth petition for

post-conviction relief on February 8, 2011.2

 In this petition, King argued that the

recording3

 of the crimes by the store’s time-lapse cameras, which the State

prosecutors used to create some of the exhibits ultimately introduced at

trial—namely, still photos and an edited compilation of the recorded images—was
4

 State v. King, No. CR 11-0044-PC (Ariz. Mar. 15, 2011) (order denying

post-conviction relief and stay of execution).

5

 State v. King, No. CR 1990-000050, slip op. at 4 (Super. Ct. Ariz. Mar. 23,

2011).

3

not the original recording, but a copy. King thus claimed that he was convicted on

false testimony—not because the “copy” did not fairly and accurately depict the

events that occurred, but because one of the prosecution’s witnesses might have

inaccurately testified that the tape identified as Exhibit 1, but never admitted into

evidence, was the original. He argued that this is newly discovered evidence and

that, absent the witness’s false testimony, he could not have been convicted. The

Superior Court concluded that King’s claim was procedurally barred and,

alternatively, failed on the merits. On March 15, 2011, the Arizona Supreme Court

summarily denied his petition for review.4

On March 23, 2011, the Superior Court likewise denied King’s fifth petition

for post-conviction relief as procedurally barred.5

 In that petition, King again

argued that he had been convicted on false testimony—specifically, the testimony

of Michael Jones, who had been with King on the night of the murders, and who

was a witness for the prosecution at King’s trial. King attached a March 7, 2011,

“recantation” affidavit from Jones, who stated that he was so intoxicated on the

night of the murders that he had no memory of the events of that day and
6

 The parties dispute the extent of Jones’s “recantation” given the language

used in his new affidavit. Specifically, Jones claims that he has no memory now

and had no memory when he woke up in jail on the morning of December 27,

1989. Because this distinction does not affect our conclusion, we do not resolve

whether Jones’s statement applies to his memory during his interviews with the

police or his testimony at trial.

7

 State v. King, No. CR 11-0074-PC (Ariz. Mar. 28, 2011) (order denying

petition for review and motion to stay execution).

8

 28 U.S.C. § 2244(a), (b)(3).

9

 § 2244(b)(3).

4

remembered only waking up in jail the following morning.6 Like the arguments in

his fourth state petition for post-conviction relief, King claims that Jones’s lack of

memory is newly discovered evidence showing actual innocence. The Arizona

Supreme Court denied King’s petition for review on March 28, 2011.7

 

King now seeks to relitigate these same issues in federal court. Because we

have previously considered and denied habeas claims brought by King, he asks us

to grant him leave to file a second or successive petition in the district court.8

 

ANALYSIS

We begin, as always, with the statutory text. To be entitled to an order

authorizing the district court to consider his second or successive petition, King

must “make[] a prima facie showing that [his] application satisfies the

requirements of this subsection.”9

 In that regard, § 2244(b) provides:
10 United States v. Lopez, 577 F.3d 1053, 1066–68 (9th Cir. 2009) (leaving

open whether “meritorious Brady claims that would have been reviewable under

the pre-AEDPA prejudice standard” are subject to § 2244(b)(2)(B)(ii)), cert denied,

130 S. Ct. 1718 (2010); Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004)

(en banc). Contra Tompkins v. Sec‘y, Dep’t of Corr., 557 F.3d 1257, 1259–60

(11th Cir. 2009) (per curiam) (holding that all second-in-time claims under Brady

v. Maryland, 373 U.S. 83 (1963), are subject to AEDPA’s gatekeeping provisions);

Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000) (same).

11 373 U.S. 83 (1963).

5

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed 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. 

However, § 2244(b)(2) is not the exclusive standard. In extremely limited

situations, the standard for establishing “actual innocence,” which that section has

been interpreted to require, may differ.10 Recently, we have recognized that a

Brady v. Maryland11 violation claim in a habeas petition may not be subject to the

“clear and convincing standard,” provided the newly discovered evidence
12 Lopez, 577 F.3d at 1064, 1066–68 (“[P]rosecutorial error, however, does

not rise to the level of a constitutional violation unless petitioner demonstrates a

threshold level of prejudice: the undisclosed evidence must be material. 

Regardless of whether a Brady claim is raised in a first petition or a second-in-time

petition, petitioner can prevail and obtain a new trial only if ‘there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.’” (citation omitted)).

13 See Villafuerte v. Stewart, 142 F.3d 1124, 1126 (9th Cir. 1998)

(interpreting 28 U.S.C. § 2244(b)(2) to require showing of actual innocence).

14 17B Charles Alan Wright et al., Federal Practice and Procedure § 4267, at

434–35 (3d ed. 2007).

15 See Morales v. Ornoski, 439 F.3d 529, 531 (9th Cir. 2006) (per curiam).

6

supporting the claim was “material” under Brady.

12 Because we find that King’s

claims do not fit within this narrow exception, we adhere to our precedent and

evaluate his showing of actual innocence for clear and convincing evidence. 

In sum, King must make a prima facie showing to us that his claim (1) is

based on newly discovered evidence and (2) establishes that he is actually innocent

of the crimes alleged.13 This is no easy task. Rather, “[f]ew applications to file

second or successive petitions . . . survive these substantive and procedural

barriers.”14 After reviewing the entire record, we conclude that King has not met

his heavy burden.15 He is therefore not entitled to the relief he seeks.

I. Jones’s Affidavit
16 See State v. King, 883 P.2d 1024, 1031 n.3 (Ariz. 1994).

17 State v. King, No. CR 1990-000050, slip op. at 3 (Super. Ct. of Ariz. Mar.

23, 2011) (denying King’s fifth petition for post-conviction relief).

7

King asserts that Jones’s affidavit establishes that Jones gave false testimony

at trial when he said that, after hearing shots fired, he saw King leaving the

convenience store with a gun in his hand. King claims that the prosecutor

knowingly presented this false testimony by “pushing” Jones to implicate King on

the stand.16 To the extent that King argues that the prosecutor violated his

constitutional rights under Napue v. Illinois, 360 U.S. 264 (1959), or Brady v.

Maryland, 373 U.S. 83 (1963), this assertion is entirely without merit. 

Before proceeding to address whether a prima facie showing of due

diligence and actual innocence has been made, we must question whether King has

even raised a non-frivolous claim. Though King attempts to couch Jones’s

affidavit as newly discovered evidence, it is no such thing. The record clearly

demonstrates that Jones’s claimed intoxication and lack of memory was apparent

to the prosecution, the defense, and the jury at the trial. Jones “repeatedly stated

during his trial testimony that due to intoxication he had virtually no memory of

the night in question.”17
18 King, 537 F.3d at 1067.

19 Id. at 1069. 

8

Also, the record demonstrates that even prior to trial, the defense was aware

of Jones’s claimed lack of memory:

As [defense] counsel had expected, Jones claimed memory problems.

When he was asked which direction he was going when the policeman

stopped him half a block from the convenience store, he said, “I don’t

actually remember,” and when asked whether he was coming back from

the convenience store, he said, “I really don’t know. I was very

intoxicated at the time.”18

In fact, based on the defense’s anticipation of Jones’s professed lack of memory,

defense counsel moved to preclude the introduction by the prosecution of prior

statements implicating King that Jones had made to Detective Armando Saldate of

the Phoenix Police Department. Because the trial judge found that Jones’s

memory loss was feigned, however, the prosecutor impeached Jones with his prior

inconsistent statements and “got Jones to admit . . . what he had previously told the

police officer.”19

That same factual finding by the trial judge provides yet another independent

basis for denying King’s claim outright: it directly refutes the very basis of King’s

claim. The state courts have already made a factual determination that Jones was

lying when he said he had no memory, not when he was “remembering” the events
20 State v. King, No. CR 1990-000050, slip op. at 3 (Super. Ct. of Ariz. Mar.

23, 2011).

21 28 U.S.C. § 2254(e)(1).

22 See, e.g., King v. Schriro, No. CV-98-1277-PHX-RCB, 2006 WL

1735247, at *12 (D. Ariz. June 22, 2006) (“The trial court delayed its final ruling

(continued...)

9

that occurred.20 This finding is entitled to a presumption of correctness under

AEDPA,21 and King does not present clear and convincing evidence to overcome

this presumption. Instead, he simply presents an affidavit that repeats exactly the

same testimonial statements that the trial judge expressly declined to credit. Given

that we must adhere to the trial judge’s factual findings, we find no basis in Jones’s

“new” testimony on which King can stake a constitutional claim.

Of course, even were we to strain to find that King’s habeas application

raises even a cognizable claim on the issue of Jones’s affidavit, we would still be

required to deny King’s application under § 2244(b)(2)(B). King fails to make a

prima facie showing that he could not previously have discovered Jones’s lack of

memory of the night of the murders because the “new” statements presented in

Jones’s affidavit are essentially no different from those made at trial over twenty

years ago. Thus, Jones’s “recantation” is not a new factual predicate at all. Rather,

it is the same claim that has been litigated and argued over for more than two

decades.22 We therefore cannot fit Jones’s affidavit of March 7, 2011, into
22(...continued)

until it heard the testimony of Jones and [Detective] Saldate, at which point it

concluded that Jones was feigning memory loss . . . .”); King, 883 P.2d at 1031 n.3

(“The evidence in the record that supports the trial court’s conclusion includes: (1)

Jones testified that he did not want to be testifying; (2) while testifying, Jones

would claim not to remember certain events, but when pushed, he would often

‘remember’ what happened; and (3) Jones would often attribute his memory loss to

his drinking the night of the murders, but Detective Saldate and the police officer

who stopped Jones on the night of the murders both testified that Jones did not

appear intoxicated.”); cf. Morales, 439 F.3d at 533 (“Morales has known about the

alleged infirmities in Samuelson’s testimony since as early as 1993.”).

23 § 2244(b)(2)(B)(i).

24 § 2244(b)(2)(B)(ii).

10

§ 2244(b)’s requirement that “the factual predicate for [King’s] claim could not

have been discovered previously through the exercise of due diligence.”23 

Likewise, we would also deny King’s application for failing to make a

sufficient showing of actual innocence. Certainly, given the preceding discussion,

it is clear that the claimed nondisclosure in no way amounts to a material Brady

violation. Therefore, we must assess whether the Jones affidavit “would be

sufficient to establish by clear and convincing evidence that . . . no reasonable

factfinder would have found [King] guilty of the underlying offense.”24

In that regard, even if Jones had been permitted to testify as to his lack of

memory without being impeached by his prior inconsistent statements and without

being pushed into “remembering” his prior statements, substantial evidence from
25 King, 537 F.3d at 1067.

26 Id.

27 Id.

11

other sources, including eyewitnesses and security camera images, implicated King

as the murderer. As we described more fully in our prior denial of King’s first

habeas petition, security camera pictures from the store showed a man in a

distinctively patterned sweater shooting the store clerk.25 Several witnesses

described seeing a man near the store immediately before and after the shootings

who fit King’s description and who was wearing the same distinctive sweater,

including some who saw the man wipe off the belt and empty holster of the

mortally wounded security guard.26 After the murders, another close acquaintance

of King saw him throw a bag containing a gun and that same distinctively

patterned sweater into a dumpster.27 Given this body of incriminating evidence, we

are convinced that even if we agreed that Jones’s testimony was false, King cannot

make a prima facie showing that he is actually innocent of the crimes for which he

was convicted.

Because Jones’s lack of memory neither shows that King is actually

innocent nor negates the impact of the substantial other evidence against him, we

must deny King’s application. 
28 § 2244(b)(2)(B)(i).

29 State v. King, No. CR 1990-000050, slip op. at 2 (Super. Ct. of Ariz. Mar.

23, 2011).

30 § 2254(e)(1). 

12

II. The “Copied” Recording

Again, we first consider whether “the factual predicate for the claim could

not have been discovered previously through the exercise of due diligence.”28 To

that end, we recognize that the Maricopa County Superior Court made a specific

factual finding that the recording at issue “existed at trial and [King] had an

opportunity to examine it at that time.”29 Absent clear and convincing evidence to

the contrary, that finding is presumed correct.30 King must therefore not only

account for the more than twenty-year lapse in its discovery, he must also rebut the

state court’s finding. He falls short.

In his petition, King states that he “exercised diligence after the Federal

Public Defender was appointed to represent him in March 2009” and goes on to

detail his efforts following that date. He offers no explanation, however, for the

two decades preceding that appointment, other than to state that he was entitled to

rely on the prosecutor’s representations regarding the authenticity of the recording. 
31 See Souliotes v. Evans, 622 F.3d 1173, 1178 (9th Cir. 2010).

32 § 2244(b)(2)(B)(ii) (“[T]he 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.”); see Villafuerte,

142 F.3d at 1126.

33 This testimony was adequate to lay the evidentiary foundation under

Arizona’s Rules of Evidence to introduce the time lapse recording and its images

into evidence. See Ariz. R. Evid. 901(a). The Arizona courts have so ruled and we

may not revisit this state law question on federal habeas review. See Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991).

13

This is not due diligence. King “would have learned of the new evidence had he

exercised reasonable care.”31 His failure to exercise that care precludes relief.

Furthermore, even were we to credit King’s diligence argument, he fails to

establish a colorable claim of actual innocence.32 His speculative assertion that his

counsel “might also have interposed a new objection” to the introduction of

exhibits derived from the recording (identified and marked as Exhibit 1 but never

admitted into evidence) had he known that the recording was not the original is

both unfounded and, more importantly, irrelevant as to King’s actual innocence. 

First, there was sworn testimony from the convenience store’s security

director that the images shown to the jury were fair and accurate representations of

the images he saw on the surveillance camera recording when he reviewed it on the

morning of the murders, in the presence of the police at the crime scene.33 Thus, as
34 Bousley v. United States, 523 U.S. 614, 623 (1998).

35 See, e.g., Fed. R. Evid. 1003; Ariz. R. Evid. 1003.

36 See King, 537 F.3d at 1064 (“[D]espite the late hour, numerous

individuals saw parts of the events, and several described [King’s] sweater

pattern.”); see also id. at 1064–67 (describing eyewitnesses’ testimonials).

14

the Arizona courts found, the exhibits seen by the jury would have been admissible

whether or not Exhibit 1 was an original or a copy.

Second, the Supreme Court has made clear that “‘actual innocence’ means

factual innocence, not mere legal insufficiency.”34 In that regard, we note that

King has not even alleged that the images admitted into evidence and presented to

the jury were fabricated or otherwise inaccurate. As a result, even if King’s claims

regarding the recording being a copy were true, there is no basis for identifying any

prejudice against him now. Copied images can be just as damning in front of a

jury as originals, and duplicate copies of images or recordings can be introduced at

trials without violating due process.35 

Moreover, as has been discussed, there were multiple eyewitnesses who

specifically described a man matching King’s distinctive description—both his

physical appearance and his unique sweater—exiting the convenience store and

wiping off the slain security guard’s empty holster.36 All of this evidence, taken
37 § 2244(b)(2)(B)(ii).

38 See Villafuerte, 142 F.3d at 1126.

39 See Morales, 439 F.3d at 531. 

40 § 2244(b)(3)(E); see Felker v. Turpin, 518 U.S. 651, 657 (1996). 

41 Landrigan v. Trujillo, 623 F.3d 1253, 1258 (9th Cir. 2010).

15

“as a whole,”37 points to no one else but King as the murderer. There is

consequently no credible argument before us that convinces us that the “copied”

images introduced at trial prove, or even relate to, King’s “actual innocence.”38

* * *

Since King has not been able to demonstrate either due diligence or actual

innocence as to any of his claims, we deny him permission to file a second or

successive application for a writ of habeas corpus.39 This denial is “not . . .

appealable and shall not be the subject of a petition for rehearing or for a writ of

certiorari.”40

III. King’s Request for a Stay

Because we hold that King’s second or successive application for a writ of

habeas corpus “presents no substantial ground on which relief might be granted,”41

there is no need for the district court to engage in any further investigation or

factfinding. Accordingly, King’s request for a stay is denied as moot.

APPLICATION DENIED. REQUEST FOR STAY DENIED.
16

COUNSEL LISTING

Jon M. Sands, Federal Public Defender for the District of Arizona; Michael L.

Burke and Ashley McDonald, Assistant Federal Public Defenders; for Petitioner

Eric John King.

Thomas C. Horne, Attorney General of the State of Arizona; Kent E. Cattani, Chief

Counsel; John Pressley Todd, Assistant Attorney General; for Respondents Ernest

Trujillo and Charles L. Ryan.