Solorio v. Muniz, 896 F.3d 914

Background

In 1999 Guillermo Solorio was convicted of first-degree murder with special circumstances and sentenced to life without parole plus ten years; prosecution witnesses tied him to the victim and to celebratory conduct after the killing.
At trial the jury heard impeachment about key witness Guillermo “Memo” (prior lies, felony record, suspected drug dealing); Fonseca’s grand jury testimony was read at trial.
In 2010 post-conviction discovery produced previously undisclosed Salinas Police reports showing Memo had served as a confidential informant and obtained leniency (dismissed traffic citation) related to his cooperation, and a tape of an interview with witness Freddie Fonseca.
Solorio sought permission under AEDPA to file a second or successive federal habeas petition raising Brady claims that the State suppressed the Memo reports and the Fonseca tape; state courts denied relief and Solorio applied to the Ninth Circuit for authorization.
The Ninth Circuit analyzed (1) whether Solorio exercised due diligence in discovering the materials before his first habeas petition and (2) whether the newly disclosed evidence, viewed with the record, makes a prima facie showing of actual innocence by clear and convincing evidence.
The court denied authorization, concluding Solorio lacked due diligence (he knew Memo was an informant and that Fonseca’s interview was taped but waited years to investigate) and, alternatively, that the new evidence was cumulative or too weak to undermine confidence in the verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Solorio exercised due diligence under 28 U.S.C. § 2244(b)(2)(B)(i) to discover the Memo reports and Fonseca tape before his first habeas petition	Solorio: he did not know the scope of Memo’s cooperation or the tape contents and thus reasonably could not have sought § 1054.9 discovery earlier	State: Solorio knew Memo was a confidential informant and that Fonseca’s interview was taped, putting him on inquiry notice to investigate; he failed to act	Held: No due diligence; knowledge of informant status and taped interview put him on notice and he did not take reasonable steps to investigate before his first petition
Whether the newly disclosed materials satisfy AEDPA’s actual-innocence standard (§ 2244(b)(2)(B)(ii)) so that no reasonable factfinder would have found guilt	Solorio: Memo’s leniency and Fonseca’s tape contain materially impeaching/exculpatory information that would undermine confidence in the verdict	State: The Memo information is cumulative to impeachment already presented; most of Fonseca’s tape duplicates grand-jury testimony and remaining bits are weak or not materially impeaching	Held: Even if considered, the new evidence is insufficient by clear and convincing evidence to show that no reasonable factfinder would have found him guilty; petition denied

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (prosecution suppression of materially exculpatory evidence violates due process)
King v. Trujillo, 638 F.3d 726 (9th Cir. 2011) (failure to exercise reasonable care to investigate known evidence precludes relief)
Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (lack of diligence where petitioner knew or suspected destruction/loss of evidence)
Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010) (due diligence inquiry requires reasonable efforts to discover evidence)
Babbitt v. Woodford, 177 F.3d 744 (9th Cir. 1999) (notice of facts giving rise to a claim triggers diligence requirement)
In re Young, 789 F.3d 518 (5th Cir. 2015) (date of inquiry notice, not merely possession, starts diligence clock under AEDPA)
United States v. Endicott, 869 F.2d 452 (9th Cir. 1989) (new impeachment evidence that would not affect jury’s assessment is not grounds for new trial)
Thompson v. Calderon, 151 F.3d 918 (9th Cir. 1998) (en banc) (proffered new evidence insufficient to make out prima facie actual-innocence showing when balanced against trial evidence)
Turner v. United States, 137 S. Ct. 1885 (2017) (new impeachment evidence cumulative of trial disclosures may be immaterial)
Wearry v. Cain, 136 S. Ct. 1002 (2016) (witness’s attempts to secure deals can be material impeachment depending on likelihood of jury inference)