FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO SOLORIO, JR.,

Petitioner,

v.

WILLIAM MUNIZ, Warden,

Respondent.

No. 15-71979

ORDER AND 

AMENDED

OPINION

Application to File Second or Successive Petition

Under 28 U.S.C. § 2254

Argued and Submitted October 19, 2017

San Francisco, California

Filed May 8, 2018

Amended July 20, 2018

Before: Consuelo M. Callahan and Carlos T. Bea, Circuit 

Judges, and Jane A. Restani,* Judge.

Order;

Opinion by Judge Callahan

 * The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.
2 SOLORIO V. MUNIZ

SUMMARY**

Habeas Corpus

The panel denied California state prisoner Guillermo 

Solorio Jr.’s application for permission to file a second or 

successive habeas corpus petition in federal district court to 

press a claim under Brady v. Maryland that the State of 

California suppressed materially exculpatory evidence that 

was unavailable to him when he first petitioned for habeas 

relief in federal court.

The panel held that Solorio failed to show that he 

exercised due diligence in failing to discover the allegedly 

suppressed evidence before he filed his first-in-time habeas 

petition, and that 28 U.S.C. § 2244(b)(2)(B)(i) therefore 

compels denial of his application to file a second or 

successive petition. The panel held that even if he had 

demonstrated due diligence, 28 U.S.C. § 2244(b)(2)(B)(ii) 

compels denial of the application because the new evidence 

fails to establish a prima facie showing of actual innocence.

COUNSEL

Amitai Schwartz (argued), Law Offices of Amitai Schwartz,

Emeryville, California, for Petitioner.

Pamela K. Critchfield (argued), Deputy Attorney General; 

Peggy S. Ruffra, Supervising Deputy Attorney General; 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SOLORIO V. MUNIZ 3

Jeffrey M. Laurence, Senior Assistant Attorney General; 

Office of the Attorney General, San Francisco, California;

for Respondent.

ORDER

The panel AMENDS its opinion in the above-captioned 

case filed May 8, 2018 as follows:

The sentence on page 17 of the slip opinion that states: 

<Weighing the considerable inculpatory evidence and the 

relatively gossamer allegedly exculpatory and impeachment 

evidence together, we find that Solorio fails to show by clear 

and convincing evidence that “no reasonable factfinder” 

would not have found him guilty had the new evidence been 

known at trial.> shall be replaced with the following 

sentence: <Weighing the considerable inculpatory evidence 

and the relatively gossamer allegedly exculpatory and 

impeachment evidence together, we find that Solorio fails to 

show by clear and convincing evidence that “no reasonable 

factfinder” would have found him guilty had the new 

evidence been known at trial.>

Judges Callahan and Bea vote to deny the petition for 

rehearing en banc. Judge Restani makes no recommendation 

on the petition. The full court has been advised of the 

petition for rehearing en banc and no judge has requested a 

vote on whether to rehear the matter en banc. Fed. R. App. 

P. 35. The petition for rehearing en banc is DENIED. No 

further petitions for panel rehearing or rehearing en banc will 

be accepted.
4 SOLORIO V. MUNIZ

OPINION

CALLAHAN, Circuit Judge:

Petitioner Guillermo Solorio, Jr. applies to this court for 

permission to file a second or successive habeas petition in 

federal district court to press a claim under Brady v. 

Maryland, 373 U.S. 83 (1963). He argues that the State of 

California suppressed materially exculpatory evidence that 

was unavailable to him when he first petitioned for habeas 

relief in federal court.

Solorio’s application leads us to address two issues. 

First, we must decide whether Solorio exercised due 

diligence in failing to discover the allegedly suppressed 

evidence before he filed his first-in-time habeas petition. 

Second, if we answer that question in the affirmative, we 

must decide whether he makes a prima facie showing of 

actual innocence. As we answer both questions in the 

negative, we deny his application.

I.

A.

In 1999, a jury convicted Solorio (sometimes referred to 

by witnesses and investigators as “Capone”) of first-degree 

murder for the March 5, 1998 killing of Vincent Morales 

(“Chente”) with the special circumstance that Solorio killed 

Chente while lying in wait. The jury also found true the 

allegations that Solorio was armed with a handgun during 

the murder, was a principal and that at least one principal 

used a handgun, and that he committed murder to benefit a 

street gang and carried a firearm during a street gang crime. 

Solorio received a sentence of life without parole 

consecutive with a ten-year determinate term.
SOLORIO V. MUNIZ 5

The following evidence was presented at Solorio’s trial, 

as recounted in the California Court of Appeal’s 2001 

decision. Solorio, a member of the Vario Greenfas Norte 

gang, was friends with Chente, a member of the Las Casitas 

gang. Chente was friends with a man named Guillermo Diaz 

(known as “Memo”), who was a gang member and worked 

at EZ Towing. Memo was acquainted with Solorio. Chente 

had warned Memo several times that someone wanted to kill 

Memo, apparently because Memo had stopped trafficking 

drugs. Memo relayed this information to several people, 

including the police.

Approximately three days before he was murdered, 

Chente drove a black Honda to EZ Towing with one or two 

others to see Memo. Chente asked Memo to give him the 

handgun kept by EZ Towing’s owner and Memo did so. 

Chente paused and then threw the gun back to Memo and 

said, “I cannot do it.” Memo testified that Chente then told 

him that Chente had been ordered to kill him. Chente also 

told Memo that Chente himself would be killed by “one of 

his friends” for failing to kill Memo.1 Memo’s colleague at 

EZ Towing, Gustavo Lopez, witnessed the verbal exchange. 

While Lopez did not hear what was said, he testified that 

Memo told him afterwards that Chente feared for his life 

because he had not killed Memo.

Chente, Solorio, and many of the prosecution’s 

witnesses attended a barbeque on March 4—the day before 

Chente’s murder. Attendees testified that Johnny Loredo 

and Solorio came to the barbeque in Solorio’s black Honda. 

Chente, Loredo, and Solorio then left the barbeque but 

 1 Expert testimony at trial established that Chente’s killing was 

likely gang-related, and that it was common among local gangs to order 

a hit on a gang member who refused to kill someone.
6 SOLORIO V. MUNIZ

returned with what Chente described as a fully loaded Uzi. 

Freddie Fonseca was also at the barbeque. He testified that 

he heard Chente say that Chente, Loredo, and Solorio were 

looking for guns. According to Fonseca, when the three 

returned, they all had guns, and Solorio in particular had a 

.38-caliber handgun. The three men then left together in the 

black Honda and did not return.

According to Mario Moya, he and Chente went to 

another party the next morning—the day of the murder. 

Loredo and Solorio arrived at that party and asked Chente to 

leave with them. Chente did so and the three departed in 

Solorio’s black Honda at around 1:30 or 2:00 p.m. Chente 

was wearing the same clothes as the ones later recovered 

from his body, which was found in a ditch on the side of 

Highway 152 in Monterey County.

Rosalie Rivera testified that, on March 6—the day after 

the murder—she was in an area known as the “Orchards,” 

visiting a man named Gerardo. She saw a green Honda pull 

up with Loredo and Solorio inside. The two men removed a 

gasoline can and garbage bag from the car trunk, and set the 

bag on fire in a makeshift pit. Rivera witnessed the men 

laughing and heard Loredo say: “that fucker’s finally gone.”

Gerardo apparently knew Loredo and Solorio. Rivera 

heard Solorio ask Gerardo if she was a snitch. Rivera later 

spoke to her friend, Hector Espinoza, who was a gang 

member. Espinoza told her that some people in a green 

Honda had shot Chente, and confirmed that Loredo and 

Solorio were responsible for Chente’s death.

In an interview with police, Solorio contradicted much 

of the witness testimony against him. He denied having seen 

Chente at the barbeque or at the party the next day. He also 

denied knowing Memo, Fonseca, or Loredo.
SOLORIO V. MUNIZ 7

B.

The California Court of Appeal affirmed Solorio’s 

conviction in 2001 and the California Supreme Court denied 

review. In 2003, Solorio filed his first federal habeas 

petition in district court. In 2007, the federal district court 

denied the petition.

In 2010, Solorio filed a pro se motion for post-conviction 

discovery in state superior court. The state produced 

thousands of documents, some of which had not previously 

been turned over to the defense. As is pertinent here, certain 

documents revealed that Memo was a confidential police 

informant who received leniency on a traffic citation for 

assisting the prosecution in Solorio’s case. The State also 

turned over a tape of an interview with Freddie Fonseca that 

Solorio argues is exculpatory and impeaching.

In 2011, Solorio filed an application with this court to 

file a second or successive petition for a writ of habeas 

corpus, which raised claims unrelated to the Brady claims in 

the instant petition. This court denied the application.

Later in 2011, Solorio filed a petition for a writ of habeas 

corpus in state superior court, alleging, among other things, 

that the State violated its Brady obligations by failing to 

disclose the information regarding Memo and Fonseca. Part 

of the previously undisclosed prosecution files were five 

Salinas Police Department reports related to Memo’s work 

as a confidential police informant. The state court found that 

Solorio’s trial attorney knew that Memo had worked as a 

confidential informant because that information was 

revealed during preliminary motions. But it also found that 

Solorio’s attorney did not know other facts revealed in the 

reports—namely, that Memo may have received benefits in 

other cases, and that Memo had obtained dismissal of a 
8 SOLORIO V. MUNIZ

traffic citation in exchange for information he gave to law 

enforcement in Solorio’s case.

The state court determined that the new information was 

not material under Brady for several reasons. First, Memo’s 

testimony was subject to substantial impeachment at trial. 

The jury heard about Memo’s felony convictions for auto 

theft, burglary, and spousal abuse, and also learned that 

Memo was probably a drug dealer and a habitual liar. 

Indeed, the jury knew that Memo had previously lied to the 

police and the grand jury in Solorio’s case. Second, the court 

suggested that the undisclosed impeachment evidence was, 

at most, cumulative. And third, Memo’s testimony was 

corroborated by other witnesses. The court therefore 

deemed it unlikely that knowledge of the traffic citation 

favor would have changed even one juror’s mind if the jury 

was already inclined to credit the testimony of a thoroughly 

impeached witness.

As for the taped record of the Fonseca interview, the 

court found that the tape was largely duplicative of 

Fonseca’s grand jury testimony, which was read to the jury 

at Solorio’s trial. Solorio quarrels with this determination in 

his instant petition, alleging that three pieces of information 

are new. He argues that, at the time of trial, the defense did 

not know of (1) Fonseca’s taped statement that Solorio 

“wouldn’t have the balls enough to [kill Chente],” 

(2) Fonseca’s equivocation over whether Solorio actually 

had a .38-caliber handgun when he returned to the 

barbeque,2 and (3) a colloquy with police in which they 

refused to cut a deal with Fonseca in return for his 

 2 Chente was killed with a .38.
SOLORIO V. MUNIZ 9

cooperation.3 The court determined that the first two pieces 

of information were not material under Brady because the 

statements were either duplicative of what was disclosed 

before trial or not exculpatory. As for Fonseca’s attempt to 

gain favor with the police, the court found that it was not 

material impeachment evidence because no inducement was 

offered to Fonseca.4 In 2014, the court denied Solorio’s 

petition.

C.

Later in 2014, Solorio filed a petition for a writ of habeas 

corpus in the California Court of Appeal, which the court 

rejected in February 2015. Solorio’s subsequent petition for 

review with the California Supreme Court was summarily 

denied in April 2015. Solorio then filed the instant 

application before this court, seeking permission to file a 

second or successive habeas petition in federal district court 

 3 Solorio also notes Fonseca’s taped statement that “everyone” was 

saying that Loredo killed Chente, but acknowledges that Solorio’s trial 

counsel knew of this statement at trial because it was included in a 

detective’s report that was turned over to the defense.

4 Sergeant Earl Pennington told Fonseca that “all we can do is if you, 

when you give us information we can take that information and we could 

do the best we can to help you out, but we can’t promise you anything 

up front, that is illegal, we can’t, we just can’t do that.” Sergeant Steve 

Angus similarly told Fonseca that “we can’t cut any deal, we can’t,” with 

Pennington later adding that “[w]e don’t have the authority to make any 

promises or anything, we can’t do that.” At the conclusion of the 

interview, Pennington told Fonseca that “[w]e don’t know what they’re 

going to do with you” but said that the officers would “tell them” that 

“you cooperated with us.”
10 SOLORIO V. MUNIZ

to raise his Brady claims based on the Memo and Fonseca 

evidence.5

II.

Our review of an application to file a second or 

successive habeas petition is governed by the standard set 

forth in the Antiterrorism and Effective Death Penalty Act 

(“AEDPA”).6 See 28 U.S.C. § 2244(b)(2)–(b)(3). AEDPA 

§ 2244(b)(2) provides that

[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 

 5 Solorio’s application to file a second or successive habeas petition 

makes no argument regarding his previously-advanced Brady claim that 

the prosecution also suppressed the tape of an interview with one 

Veronica Moya. Because we generally deem abandoned arguments not 

refreshed on appeal, we decline to assess the probative value of the 

alleged Veronica Moya evidence. See Collins v. City of San Diego, 

841 F.2d 337, 339 (9th Cir. 1988) (issue abandoned where not raised on 

appeal).

6 Solorio appears to be of two minds as to the nature of his 

application. At one point he argues that his Brady claim “could not have 

been presented” at the time he filed his first-in-time habeas petition and 

so it should “not fall within the scope of 28 U.S.C. § 2244 for second or 

successive petitions.” Yet practically in the same breath he concedes 

that “this is an application for a second or successive habeas corpus 

petition.” Irrespective of this internal tension, Solorio’s second 

statement is correct for the reasons set forth in our concurrently filed 

opinion in Brown v. Muniz, No. 16-15442, — F.3d — (9th Cir. 2018).
SOLORIO V. MUNIZ 11

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). The question before us is whether 

Solorio satisfies the requirements under § 2244(b)(2)(B)(i)–

(ii), which is a necessary prerequisite to filing a second or 

successive habeas petition. Specifically, we must decide 

whether Solorio exercised due diligence in failing to 

discover the allegedly exculpatory Memo reports and the 

Fonseca tape, and, if so, whether he has made a prima facie 

showing of actual innocence based on that evidence.

A.

Solorio argues that the alleged Brady materials—the 

Memo reports and the Fonseca tape—were not discoverable 

before he filed his first federal habeas petition in 2003. First, 
12 SOLORIO V. MUNIZ

Solorio alleges that, while he knew at the time of his trial in 

1999 that Memo was a confidential informant, he “did not 

know the extent of Memo’s work for the police, the dates of 

his work, or most importantly the extent to which [Memo] 

traded information for favors or sought favors.” Solorio 

argues that a discovery request under California Penal Code 

§ 1054.9, which ultimately resulted in the release of the 

Memo reports, would have been rejected if it had been filed 

earlier because Solorio could not have shown a reasonable 

basis for believing that the materials actually existed.

Second, Solorio asserts that, while he knew at the time 

of trial that Fonseca’s interview was audio- and video-taped, 

and he concedes that there was “a reasonable basis to believe 

[the tape] existed,” he “reasonably would have assumed that 

they were not consequential because his attorney did not use 

them at trial.”

We hold that Solorio fails to show that he exercised due 

diligence in obtaining the Memo reports and the Fonseca 

tape because he does not offer a plausible explanation for 

why he could not have made his § 1054.9 discovery request 

before he filed his first-in-time habeas petition. In King v. 

Trujillo, 638 F.3d 726, 732 (9th Cir. 2011) (per curiam), we 

held that the petitioner failed to exercise due diligence in 

discovering that a tape introduced at trial was a copy rather 

than the original. We credited the state court’s finding that 

the recording “existed at trial and [King] had an opportunity 

to examine it at that time.” Id. (internal quotation marks 

omitted). But King waited twenty years—until a Federal 

Public Defender was appointed to represent him—to 

examine the tape. Id. Because King “‘would have learned 

of the new evidence [earlier] had he exercised reasonable 

care,’” we held that “[h]is failure to exercise that care 

preclude[d] relief.” Id. (quoting Souliotes v. Evans, 622 F.3d 
SOLORIO V. MUNIZ 13

1173, 1178 (9th Cir. 2010)). Similarly, in Woratzeck v. 

Stewart, 118 F.3d 648, 652 (9th Cir. 1997), we held that the 

petitioner failed to exercise due diligence in uncovering 

information showing that the State had destroyed evidence 

because he had “known about its (possible) destruction for 

several years.” Indeed, before he filed his initial habeas 

petition the petitioner knew of an evidence card stating 

explicitly that evidence was destroyed. Id.

To be sure, the due diligence inquiry is a function of 

whether Solorio had some indication before filing his initial 

petition that the alleged exculpatory evidence existed. If he 

had no reason to investigate Memo’s cooperation or 

Fonseca’s taped statements, then he could not have been 

dilatory in failing to investigate further. On this question, 

the circumstances are somewhat more favorable to Solorio 

than they were in Woratzeck and King. Whereas Woratzeck 

had at his disposal facts showing that evidence had, in fact, 

been destroyed, Solorio did not know what Fonseca said on 

the interview tape or the full extent of Memo’s cooperation. 

And whereas the question in King was whether the tape King 

knew existed was an original, here the issue is not the 

physical tape’s provenance—a tape that Solorio knew 

existed—but its contents.

These distinguishing features do not, however, justify 

Solorio’s delay in acting. A petitioner must exercise due 

diligence in investigating new facts where he is on notice 

that new evidence might exist. He cannot escape the due 

diligence requirement simply by showing he did not know 

of the new evidence earlier. Cf. Babbitt v. Woodford, 

177 F.3d 744, 747 (9th Cir. 1999) (black petitioner failed to 

exercise due diligence where his counsel’s failure to 

question an all-white jury about their potential race bias put 

him on notice that his counsel might, himself, harbor racial 
14 SOLORIO V. MUNIZ

animus); In re Young, 789 F.3d 518, 528 (5th Cir. 2015) 

(interpreting an analogous phrase under AEDPA as meaning 

“the date a petitioner is on notice of the facts which would 

support a claim, not the date on which the petitioner has in 

his possession evidence to support his claim”). Indeed, a 

contrary interpretation would render the due diligence 

requirement superfluous, as the whole point of 

§ 2244(b)(2)(B)(i) is to address facts that were not known 

previously. The due diligence inquiry therefore turns on two 

factors: (1) whether the petitioner was on inquiry notice to 

investigate further, and, if so, (2) whether the petitioner took 

reasonable steps to conduct such an investigation. See 

Babbitt, 177 F.3d at 747.

We conclude that Solorio was on inquiry notice to 

investigate the Fonseca tape and the scope of Memo’s 

cooperation with the police before he filed his first-in-time 

habeas petition. First, Solorio concedes that he knew at the 

time of trial that Memo was a confidential police informant 

and that Fonseca’s interview was taped. Solorio’s 

knowledge of Memo’s informant status and the existence of 

Fonseca’s taped interviews was sufficient to put him on 

notice to investigate further. Indeed, additional inquiry 

could have led to the discovery that Memo received leniency 

on a traffic citation in exchange for his testimony against 

Solorio, and that Fonseca made at least one statement on the 

tape that was not revealed at trial. Yet Solorio did nothing 

to discover the Fonseca tape or the full extent of Memo’s 

assistance to the police until years after he filed his initial 

petition.7 Accordingly, Solorio fails to demonstrate due 

diligence in researching the alleged Brady material.

 7 Solorio argues that it would have been futile to file his § 1054.9 

discovery request earlier because that provision does “not allow such a 
SOLORIO V. MUNIZ 15

B.

Solorio’s failure to exercise due diligence compels 

denial of his application. But for the sake of completeness, 

we also address the second prong of § 2244(b)(2)(B), and 

assess whether Solorio makes a prima facie showing of 

actual innocence by clear and convincing evidence.

Solorio argues that the five reports on Memo, showing 

that Memo was a confidential police informant and that he 

received a benefit for his testimony in the form of a 

dismissed traffic citation, are materially impeaching. But, as 

the state court determined, Memo’s testimony was subject to 

substantial impeachment at trial. The jury learned that 

Memo was probably a drug dealer and had previously lied to 

the police and a grand jury in Solorio’s case. Solorio fails to 

show that information regarding dismissal of a traffic 

infraction undermines confidence in the jury’s verdict. 

Instead, it is merely cumulative of the impeachment 

evidence presented at Solorio’s trial. See United States v. 

Endicott, 869 F.2d 452, 456 (9th Cir. 1989) (“newly 

discovered evidence to impeach a government witness does 

not warrant a new trial when the evidence would not have 

affected the jury’s assessment of the witness’ credibility and 

when the witness was subjected to vigorous crossexamination”); cf. Turner v. United States, 137 S. Ct. 1885, 

1894–95 (2017) (newly discovered evidence that witness 

had used illicit drugs was merely cumulative of other 

 

broad fishing expedition.” Solorio’s argument is unpersuasive because 

he prevailed on his § 1054.9 request when he eventually filed it. This 

plainly rebuts his argument that it was infeasible for him to make the 

same request before he filed his initial habeas petition, and thus does 

nothing to advance his assertion that he exercised due diligence.
16 SOLORIO V. MUNIZ

impeachment evidence disclosed to the jury at trial, 

including that the witness had frequently used drugs).

Solorio’s reliance on Fonseca’s taped statements is 

similarly unavailing. First, most of the taped statements 

duplicated Fonseca’s testimony to the grand jury, which was 

read to the jury at Solorio’s trial. The jury was therefore 

privy to most of Fonseca’s statements from the interview. 

Second, Solorio’s insistence that the tape reveals for the first 

time Fonseca’s prevarication on whether he saw Solorio with 

a .38—the type of gun used to kill Chente—is belied by the 

record. Indeed, the police notes from the taped interview—

which Solorio admits he had at the time of trial—reflect 

Fonseca’s inconsistent answers on whether he saw Solorio 

with a .38, or any gun at all. For example, at one point 

Sergeant Steve Angus’ notes state: “Capone[—i.e., Solorio] 

had a revolver.” But they later state:

Didn’t c Capone’s gun. Hrd people bhnd him 

talking about it. v talking about. v talking to 

Johnny & unk others. Then Johnny, v, and 

Capone walk by w. Johnny showed Uzi in 

waist, v. showed gun in hand. Capone show 

nothing. [??] came up w/ a nickel plated .38 

for Capone. Thinks it was v said it.

Thus, Solorio’s claim that Fonseca’s equivocal answers are 

new evidence is plainly wrong: Solorio knew of Fonseca’s 

equivocation at the time of trial. What is new from the tape 

are two pieces of information: Fonseca’s statement that 

Solorio “wouldn’t have the balls enough to do, he don’t do 

shit like that”—i.e., kill Chente, and a colloquy with police 

in which they refused to cut a deal with Fonseca on a charge 

in a separate case in return for his cooperation.
SOLORIO V. MUNIZ 17

The new information in the Memo reports and on the 

Fonseca tape, while having limited impeachment and 

exculpatory value, pales when set against the balance of 

inculpatory evidence presented at trial and the impeachment 

evidence against Memo. Solorio does not dispute 

(1) eyewitness testimony that Chente was last seen with 

Solorio on the day of the murder, (2) Rivera’s testimony that 

she saw Solorio and Loredo burn a garbage bag while 

celebrating that “that fucker’s finally gone,” (3) Rivera’s 

testimony that Solorio asked Gerardo whether Rivera was a 

snitch, (4) Espinoza’s statement that Solorio and Loredo 

were responsible for killing Chente, (5) Solorio’s thoroughly 

contradicted testimony that he did not know Memo, Fonseca, 

or Loredo, and did not see Chente at the barbeque or at the 

party the next day, (6) the testimony of multiple 

eyewitnesses that Chente and others drove to Memo’s 

business in a black Honda—which matches the description 

of Solorio’s vehicle—where Chente told Memo he would be 

killed for not killing Memo, and (7) the impeachment 

material against Memo that was introduced at trial—namely, 

that he was probably a drug dealer and had lied to the police 

and the grand jury in Solorio’s case.8

 8 It is doubtful that any discussion between Fonseca and Sergeants 

Pennington and Angus regarding a deal has material impeachment value. 

First, Pennington and Angus steadfastly refused to cut a deal with 

Fonseca in return for his statement. Second, at least one of Fonseca’s 

statements was exculpatory—namely, his allegedly suppressed

statement that Solorio “wouldn’t have the balls” to kill Chente—and thus 

inured to Solorio’s benefit. Similarly, Fonseca’s equivocation over 

whether Solorio had a .38 at the barbeque hardly indicates an inclination 

to warp the truth to bolster the prosecution’s case. The upshot is that 

Solorio tries to have it both ways: arguing on the one hand that Fonseca’s 

(suppressed) exculpatory statement would have helped him, while 

simultaneously insisting that he should have had the opportunity to 

discredit Fonseca’s testimony. Such contradictory assertions impair 
18 SOLORIO V. MUNIZ

Weighing the considerable inculpatory evidence and the 

relatively gossamer allegedly exculpatory and impeachment 

evidence together, we find that Solorio fails to show by clear 

and convincing evidence that “no reasonable factfinder” 

would have found him guilty had the new evidence been 

known at trial. 28 U.S.C. § 2244(b)(2)(B)(ii); see also King, 

638 F.3d at 730–32 (affidavit of prosecution witness that he 

was too intoxicated to recall witnessing the murder, which 

he had testified to witnessing at trial, was insufficient to 

show that “no reasonable factfinder” would have found him 

guilty); Thompson v. Calderon, 151 F.3d 918, 924–26 (9th 

Cir. 1998) (en banc) (statement that petitioner and victim 

were having consensual sex where victim was murdered did 

not suffice to make out a prima facie showing of actual 

innocence when viewed together with the inculpatory 

evidence presented at trial). We therefore reject Solorio’s 

application to file a second or successive habeas petition.

CONCLUSION

Because Solorio fails to demonstrate due diligence with 

respect to his Brady claim, and because, even if he cleared 

that hurdle, the new evidence fails to establish a prima facie 

showing of actual innocence, we DENY Solorio’s 

application to file a second or successive habeas petition.

 

Solorio’s claim of a material—i.e., prejudicial—Brady violation. We 

therefore conclude that Solorio was not prejudiced by his trial counsel’s 

inability to impeach Fonseca’s testimony with the newly discovered 

evidence. Cf. Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016) (witness’ 

attempt to secure a deal may be material “because the jury ‘might well 

have concluded that [the witness] had fabricated testimony in order to 

curry the [prosecution’s] favor’” (quoting Napue v. Illinois, 360 U.S. 

264, 270 (1959) (emphasis added)).