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:

2 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 parts, requiring Benjamin show both that counsel performed

unreasonably and that the unreasonable performance resulted in prejudice. Hasan

v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001).

The record reflects that Benjamin knew of the factual predicate for his IAC

claim before he filed his first habeas petition. Specifically, Benjamin had personal

knowledge of the alibi and hat witnesses; could have accessed the relevant

impeachment evidence in his counsel’s records since trial; and attended trial so

was on notice that his counsel failed to use this evidence. See Solorio, 896 F.3d at

920-21 (reviewing the record is a “reasonable step[]” to take to discover counsel’s

unreasonable performance); Babbitt v. Woodford, 177 F.3d 744, 747 (9th Cir.

1999) (per curiam) (holding that the petitioner did not exercise due diligence in an

SOS petition for IAC where the facts of the unreasonable performance were

available to the petitioner “since the conclusion of his trial” and were “plainly

ascertainable by reviewing the record”). Benjamin also knew of the resulting

prejudice—the effect on the jury’s decision—when the trial concluded.

Because Benjamin knew or could have known the factual predicate for IAC

at the time of trial, his lack of access to postconviction counsel or additional legal

3 20-70935 materials is not relevant to whether he could have included the claim in his first

habeas petition. See King, 638 F.3d at 732 (rejecting the petitioner’s argument that

he exercised diligence after appointment of Federal Public Defender because he

failed to explain his lack of diligence before the appointment). Accordingly,

Benjamin cannot meet the stringent due diligence requirement of

§ 2244(b)(2)(B)(i) and we need not consider the actual innocence prong. See

Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997) (per curiam).

2. For his prosecutorial misconduct subclaim based on Napue v. Illinois, 360

U.S. 264 (1959), Benjamin cannot meet the due diligence requirement of §

2244(b)(2)(B)(i) because he knew the factual predicate before filing his first

petition and does not demonstrate that he exercised due diligence to discover the

resulting prejudice. See Solorio, 896 F.3d at 920-21. The record contains

substantial evidence showing that Benjamin’s counsel knew or should have known

at trial that both of witness Rochelle Thomas’s referenced statements were false.

See id. at 921 (concluding that to exercise due diligence under § 2244(b)(2)(B) for

a prosecutorial misconduct claim, facts known “at the time of trial” are “sufficient

to put [a petitioner] on notice to investigate further”). Once Benjamin was on

notice of the false statements, he does not show he took reasonable steps to

investigate and discover the resulting prejudice—the Napue violation—but only

argues the prosecution should have corrected the testimony. See id. Accordingly,

4 20-70935 Benjamin cannot meet the due diligence requirement for the Napue subclaim.

For his prosecutorial misconduct subclaims based on Brady v. Maryland,

373 U.S. 83 (1963), Benjamin can meet the due diligence requirements because the

factual predicate was withheld by the prosecution and therefore could not have

been discovered through due diligence. See id. at 920-21.

However, Benjamin cannot show that the withheld evidence amounts to

clear and convincing evidence of actual innocence. 28 U.S.C. § 2244(b)(2)(B)(ii);

Brown v. Muniz, 889 F.3d 661, 675 (9th Cir. 2018). He does not show that

Thomas’s warrants, probation status, or payments for housing “undermine

confidence in the jury’s verdict” because they merely impeach a witness who was

already thoroughly impeached. Turner v. United States, 137 S. Ct. 1885, 1895

(2017) (citation and internal quotation marks omitted); see also United States v.

Lopez, 577 F.3d 1053, 1064 (9th Cir. 2009) (holding that a Brady claim in an SOS

petition requires showing “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different”

(citation omitted)); United States v. Endicott, 869 F.2d 452, 456 (9th Cir. 1989)

(holding that newly discovered impeachment evidence “does not warrant a new

trial when the evidence would not have affected the jury’s assessment of the

witness’ credibility and when the witness was subjected to vigorous cross-

examination”). Moreover, the other evidence of Benjamin’s guilt was unaffected

5 20-70935 by the withheld evidence.

The question here is not whether failure to disclose witness payments might

warrant a new trial, see Bagley v. Lumpkin, 798 F.2d 1297, 1300 (9th Cir. 1986),

but rather whether the payments and other withheld evidence constitute clear and

convincing evidence of actual innocence, and that standard is not met. Brown, 889

F.3d at 675. Therefore, Benjamin cannot meet the actual innocence prong of

§ 2244(b)(2)(B)(ii) for his Brady subclaims.

3. Because Benjamin cannot meet the requirements to authorize filing an

SOS petition, we need not address the merits of the petition.

No further filings will be entertained in this case.

DENIED.

6 20-70935