Ricky Benjamin v. Laura Eldridge

facts underlying the claim, if proven and viewed in the 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,” § 2244(b)(2)(B)(ii). See King v. Trujillo, 638

F.3d 726, 729-30 (9th Cir. 2011) (per curiam) (order) (referring to

§ 2244(b)(2)(B)(ii) as a showing of “actual innocence”).

As the parties are familiar with the facts, we do not recount them here. We

deny the amended application for authorization to file an SOS 28 U.S.C. § 2254

habeas petition.

1. For his ineffective assistance of counsel (“IAC”) claim, Benjamin fails to

show that he could not have discovered the factual predicate through exercising

due diligence. 28 U.S.C. § 2244(b)(2)(B)(i). Due diligence “turns on two factors:

20-70935 (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.”

Solorio v. Muniz, 896 F.3d 914, 921 (9th Cir. 2018). The factual predicate for an

IAC claim has two…