896 F.3d 914 (9th Cir. 2018), 15-71979, Solorio v. Muniz

Docket Nº:15-71979
Citation:896 F.3d 914
Opinion Judge:CALLAHAN, Circuit Judge:
Party Name:Guillermo SOLORIO, Jr., Petitioner, v. William MUNIZ, Warden, Respondent.
Attorney: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;
Judge Panel:Before: Consuelo M. Callahan and Carlos T. Bea, Circuit Judges, and Jane A. Restani, Judge.
Case Date:May 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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896 F.3d 914 (9th Cir. 2018)

Guillermo SOLORIO, Jr., Petitioner,

v.

William MUNIZ, Warden, Respondent.

No. 15-71979

United States Court of Appeals, Ninth Circuit

May 8, 2018

Argued and Submitted October 19, 2017, San Francisco, California

Amended July 20, 2018

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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;

Application to File Second or Successive Petition Under 28 U.S.C. § 2254

Before: Consuelo M. Callahan and Carlos T. Bea, Circuit Judges, and Jane A. Restani,[*] Judge.

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.

ORDER AND AMENDED OPINION

The panel AMENDS its opinion in the above-captioned case filed May 8, 2018 as follows:

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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.

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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.

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

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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 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.

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

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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 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 Memos felony...

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