                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ERIC JOHN KING,                        
                         Petitioner,
                v.
ERNEST TRUJILLO, Warden of
Arizona State Prison Complex-
                                       
                                            No. 11-70847
Eyman,
                                               ORDER
               and
CHARLES L. RYAN, Director of the
Arizona Department of
Corrections,
                      Respondents.
                                       
                   Filed March 28, 2011

 Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
         and Richard C. Tallman, Circuit Judges.


                         COUNSEL

Jon M. Sands, Federal Public Defender for the District of Ari-
zona; 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.



                            4339
4340                        KING v. TRUJILLO
                                ORDER

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.

            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 convenience-store 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
  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.
                            KING v. TRUJILLO                          4341
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 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 wit-
nesses might have inaccurately testified that the tape identi-
fied 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 sum-
marily 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 remembered only waking up in jail the following morn-
ing.6 Like the arguments in his fourth state petition for post-
conviction relief, King claims that Jones’s lack of memory is
  4
     State v. King, No. CR 11-0044-PC (Ariz. Mar. 15, 2011) (order deny-
ing 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).
   6
     The parties dispute the extent of Jones’s “recantation” given the lan-
guage 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 conclu-
sion, we do not resolve whether Jones’s statement applies to his memory
during his interviews with the police or his testimony at trial.
4342                      KING v. TRUJILLO
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 sec-
ond 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:

      (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 dis-
      missed 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
  7
    State v. King, No. CR 11-0074-PC (Ariz. Mar. 28, 2011) (order deny-
ing petition for review and motion to stay execution).
  8
    28 U.S.C. § 2244(a), (b)(3).
  9
    § 2244(b)(3).
                            KING v. TRUJILLO                          4343
           (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 fact-
           finder 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 “ac-
tual 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,” pro-
vided the newly discovered evidence 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.
  10
      United States v. Lopez, 577 F.3d 1053, 1066-68 (9th Cir. 2009) (leav-
ing open whether “meritorious Brady claims that would have been review-
able 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 Tomp-
kins 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).
   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 peti-
tion 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 dif-
ferent.’ ” (citation omitted)).
4344                        KING v. TRUJILLO
   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 pro-
cedural barriers.”14 After reviewing the entire record, we con-
clude that King has not met his heavy burden.15 He is
therefore not entitled to the relief he seeks.

  I.   Jones’s Affidavit

   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 show-
ing 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
  13
      See Villafuerte v. Stewart, 142 F.3d 1124, 1126 (9th Cir. 1998) (inter-
preting 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).
   16
      See State v. King, 883 P.2d 1024, 1031 n.3 (Ariz. 1994).
                           KING v. TRUJILLO                         4345
trial testimony that due to intoxication he had virtually no
memory of the night in question.”17

  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 direc-
       tion 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 pro-
fessed lack of memory, defense counsel moved to preclude
the introduction by the prosecution of prior statements impli-
cating King that Jones had made to Detective Armando Sal-
date 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 that occurred.20 This finding is enti-
  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).
 18
    King, 537 F.3d at 1067.
 19
    Id. at 1069.
 20
    State v. King, No. CR 1990-000050, slip op. at 3 (Super. Ct. of Ariz.
Mar. 23, 2011).
4346                        KING v. TRUJILLO
tled to a presumption of correctness under AEDPA,21 and
King does not present clear and convincing evidence to over-
come this presumption. Instead, he simply presents an affida-
vit 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 essen-
tially 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 § 2244(b)’s
requirement that “the factual predicate for [King’s] claim
  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 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 hap-
pened; 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.”).
                           KING v. TRUJILLO                4347
could not have been discovered previously through the exer-
cise of due diligence.”23

   Likewise, we would also deny King’s application for fail-
ing to make a sufficient showing of actual innocence. Cer-
tainly, 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 affida-
vit “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 other sources, including eyewitnesses and security cam-
era 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 Sev-
eral witnesses described seeing a man near the store immedi-
ately 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 con-
taining 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 testi-
mony was false, King cannot make a prima facie showing that
  23
     § 2244(b)(2)(B)(i).
  24
     § 2244(b)(2)(B)(ii).
  25
     King, 537 F.3d at 1067.
  26
     Id.
  27
     Id.
4348                       KING v. TRUJILLO
he is actually innocent of the crimes for which he was con-
victed.

   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.

  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 fac-
tual 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. This is not due diligence.
King “would have learned of the new evidence had he exer-
cised reasonable care.”31 His failure to exercise that care pre-
cludes relief.
  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).
 31
    See Souliotes v. Evans, 622 F.3d 1173, 1178 (9th Cir. 2010).
                            KING v. TRUJILLO                          4349
   Furthermore, even were we to credit King’s diligence argu-
ment, 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 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 insufficien-
cy.”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
  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 rea-
sonable 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).
   34
      Bousley v. United States, 523 U.S. 614, 623 (1998).
4350                        KING v. TRUJILLO
a jury as originals, and duplicate copies of images or record-
ings can be introduced at trials without violating due process.35

   Moreover, as has been discussed, there were multiple eye-
witnesses 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 “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 dili-
gence 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 applica-
tion 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
  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 indi-
viduals saw parts of the events, and several described [King’s] sweater
pattern.”); see also id. at 1064-67 (describing eyewitnesses’ testimonials).
  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).
                      KING v. TRUJILLO                  4351
factfinding. Accordingly, King’s request for a stay is denied
as moot.

 APPLICATION DENIED. REQUEST FOR STAY
DENIED.
