and Submitted October 19, 2017 San Francisco, California
Application to File Second or Successive Petition Under 28
U.S.C. § 2254
Schwartz (argued), Law Offices of Amitai Schwartz,
Emeryville, California, for Petitioner.
K. Critchfield (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Office of the
Attorney General, San Francisco, California; for Respondent.
Before: Consuelo M. Callahan and Carlos T. Bea, Circuit
Judges, and Jane A. Restani, [*] Judge.
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.
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.
CALLAHAN, CIRCUIT JUDGE.
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.
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.
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.
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
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. 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
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 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
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.
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 ...