Failure to file discovery motion bars successive habeas filing, 9th Circuit rules

A California prisoner who failed to seek discovery of possible exculpatory evidence before filing a series of habeas petitions to his 1999 murder conviction may not use helpful evidence he discovered later in a successive challenge, a federal appeals court has ruled.

In a unanimous decision published Tuesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals denied Guillermo Solorio Jr.'s request to file a second or successive habeas petition to pursue a Brady claim.

Solorio was convicted of first degree murder for the killing of Vincent Morales, whose death was allegedly retribution for Morales' failure to kill an acquaintance of Solorio who had stopped trafficking drugs.

Solorio filed his first federal habeas petition after the California Court of Appeal affirmed his murder conviction. That filing was denied in 2007.

Three years later, he filed a discovery motion in state superior court and obtained documents revealing a witness who testified against him was a confidential police informant who had received benefits for his cooperation. California prosecutors also turned over the full name of a second witness who equivocated in describing whether Solorio had the gun used in the crime.

But on Tuesday, the 9th Circuit denied Solorio's request to pursue the Brady claim using the new evidence, citing the Antiterrorism and Effective Death Penalty Act of 1996's discovery due diligence requirement, which limits the scope of second or successive federal habeas claims. Solorio v. Muniz, 2018 DJDAR 4185.

The law does not allow a prisoner to pursue a new claim if it is premised on evidence the petitioner could have discovered earlier.

"A petitioner must exercise due diligence in investigating new facts where he is on notice that new evidence might exist," wrote Circuit Judge Consuelo M. Callahan. "He cannot escape the due diligence requirement simply by showing he did not know the new evidence earlier."

Solorio had conceded he knew about the witness' role as a police informant but told the court he was unaware of the degree of his cooperation.

The panel said Solorio should have filed a discovery request for information about the witness in California court before filing his first federal habeas petition.

Amitai Schwartz, who represented Solorio before the 9th Circuit, said the decision would encourage "fishing expeditions" by prisoners who have ample time on their hands in order to later meet the diligence requirement. He described those requests as unfruitful and said favorable evidence not disclosed at trial will likely remain hidden.

"Congress and then president Bill Clinton set a high bar for second or successive habeas petitions," Schwartz said in an email. "But this opinion makes the bar practically insurmountable in the 9th Circuit."

Schwartz said he will likely ask the court to reconsider the opinion en banc for this reason and to readdress the court's further discussion of the fact that the materials Solorio discovered would be barred from a second habeas petition regardless.

The office of California's attorney general did not respond to a request for comment.