                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 GUILLERMO SOLORIO, JR.,                           No. 15-71979
                                 Petitioner,

                      v.                           ORDER AND
                                                    AMENDED
 WILLIAM MUNIZ, Warden,                              OPINION
                     Respondent.



      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 cross-
examination”); 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)).
