Alexander Balbuena v. William Sullivan ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXANDER BALBUENA, No. 12-16414
Petitioner-Appellant,
D.C. No.
v. 3:11-cv-00228-
RS
WILLIAM JOE SULLIVAN, Warden;
ATTORNEY GENERAL FOR THE STATE
OF CALIFORNIA,
Respondents-Appellees.
ALEXANDER BALBUENA, No. 18-15432
Petitioner-Appellant,
D.C. No.
v. 3:11-cv-00228-
RS
WILLIAM JOE SULLIVAN, Warden,
Respondent-Appellee. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted November 12, 2019
San Francisco, California
2 BALBUENA V. SULLIVAN
Filed August 17, 2020
Amended November 17, 2020
Before: William A. Fletcher, Mark J. Bennett, and
Bridget S. Bade, Circuit Judges.
Order;
Opinion by Judge Bade;
Concurrence by Judge W. Fletcher
SUMMARY *
Habeas Corpus
The panel filed an amended opinion, denied a petition for
rehearing, and denied on behalf of the court a petition for
rehearing en banc, in appeals arising from the district court’s
denial of (1) Alexander Balbuena’s habeas corpus petition in
which he argued that the admission of his confession
violated his due process rights because the statements were
the involuntary product of coercion; and (2) his motion
pursuant to Fed. R. Civ. P. 60(b) for relief from judgment to
allow him to amend his habeas petition to add a new claim
that the admission of his confession violated his Miranda
rights.
Applying AEDPA’s deferential standards of federal
habeas review, and affirming the denial of the petition, the
panel held that the state court’s conclusion that Balbuena’s
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BALBUENA V. SULLIVAN 3
confession was voluntary was not contrary to or an
unreasonable application of federal law. The panel wrote
that the state court did not unreasonably conclude that
Balbuena was sixteen years old and considered his age,
experience, and maturity as part of the totality of the
circumstances of his confession. The panel considered
Balbuena’s arguments regarding the adequacy of his
Miranda warnings as part of the totality of the circumstances
relevant to his Fourteenth Amendment claim rather than as a
separate Sixth Amendment claim, and concluded that the
state court’s determination that Balbuena was advised of his
Miranda rights was not objectively unreasonable. The panel
wrote that the state court did not unreasonably conclude that
the circumstances of the interview, which included the
detectives’ limited references to Balbuena’s unborn child,
use of “alternative scenarios,” and implied offers of leniency
were not coercive. The panel wrote that a video recording
of the interview refutes Balbuena’s argument that those
tactics overbore his will and rendered his confession
involuntary.
The panel held that the district court properly denied
Balbuena’s Rule 60(b) motion as an unauthorized second or
successive petition under 28 U.S.C. § 2244(b)(3)(A).
Balbuena argued that the district court should have
considered his Rule 60(b) motion as a motion to amend his
habeas petition because he filed it while his appeal from the
denial of his habeas petition remained pending before this
court and that his claim therefore was not “fully
adjudicated.” The panel wrote that a Rule 60(b) motion that
asserts a new claim is a disguised habeas corpus petition that
is subject to the requirements of § 2244(b), and that because
Balbuena neither sought nor obtained authorization from this
court to file a second or successive habeas petition, the
district court lacked jurisdiction to consider his new claim.
4 BALBUENA V. SULLIVAN
The panel rejected Balbuena’s contention that even if his
Rule 60(b) motion is a disguised habeas petition, it is not a
second or successive petition under § 2244(b) because the
denial of his initial petition was pending on appeal.
Concurring in the result, Judge W. Fletcher agreed that
the state court did not unreasonably conclude that
Balbuena’s confession was voluntary. He also agreed that
Beaty v. Schriro, 554 F.3d 780, 783 n.1 (9th Cir. 2009),
requires the panel to hold that Balbuena’s Rule 60(b) motion
was a second or successive habeas petition, even though it
was filed while an appeal on his initial habeas petition was
awaiting adjudication in this court. He wrote separately to
register his disagreement with Beaty and to urge the
Supreme Court to recognize the circuit split and to adopt the
rule stated in Ching v. United States, 298 F.3d 174, 178 (2d
Cir. 2002), and United States v. Santarelli, 929 F.3d 95, 104–
05 (3d Cir. 2019).
COUNSEL
Scott A. Sugarman (argued), Sugarman & Cannon, San
Francisco, California, for Petitioner-Appellant.
Jill M. Thayer (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Gerald A.
Engler, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Respondents-Appellees.
BALBUENA V. SULLIVAN 5
ORDER
The opinion filed on August 17, 2020 and published at
970 F.3d 1176 is amended by the opinion filed concurrently
with this order.
With this amended opinion, the panel has voted to deny
the petition for rehearing and rehearing en banc. 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. Accordingly, the
petition for rehearing and rehearing en banc is DENIED. No
further petitions for panel rehearing or rehearing en banc
may be filed.
OPINION
BADE, Circuit Judge:
In these consolidated appeals, Alexander Balbuena
challenges the district court’s denial of his federal habeas
petition, and its denial of his Federal Rule of Civil Procedure
60(b) motion to set aside the judgment and amend his habeas
petition to add a new claim. For his role in a gang-related
shooting, a jury convicted Balbuena of first-degree murder,
attempted murder, and street terrorism. Balbuena argues that
the state court’s admission of his confession violated his due
process rights because it was the involuntary product of
coercion. Balbuena also argues that his Rule 60(b) motion
was a proper motion to amend his habeas petition and not a
disguised second or successive petition subject to 28 U.S.C.
§ 2244. We affirm in both matters.
6 BALBUENA V. SULLIVAN
I.
A.
On January 17, 2006, Jose Segura was shot and killed
while sitting in his car with Oralia Giron, and their children.
According to Giron, several men surrounded the car. The
man standing nearest to Segura said that the men wanted
revenge for the murder of “Gizmo” and then shot a gun,
killing Segura. 1 Giron was also shot and injured during the
encounter, but fortuitously Segura’s and Giron’s three-year-
old daughter and three-month-old son were not injured.
Police detectives investigating the murder scene found
shell casings on the street for .32-caliber and 9-millimeter
handguns, and bullet fragments in the car and a fence. They
searched a nearby house, pursuant to a search warrant, and
found a .38-caliber handgun and ammunition for .22-caliber
and 9-millimeter handguns. Kristina Lawson, who rented a
room in the house from Juan Herrera (a/k/a Willow), told
officers that she saw Balbuena and Julius Stinson (a/k/a
Jukas or Jujakas) with guns just before the shooting. She
also stated that she heard gun shots, saw Balbuena and
Stinson running to the house, and saw Balbuena enter the
house apparently trying to hide a gun under a couch. She
also said that, later in the day at the “Green Store,” Balbuena
told her that he shot Segura in the forehead. 2
1
Luis Ochoa (a/k/a Gizmo) had been shot and killed the previous
day.
2
Balbuena lived in an apartment known to be affiliated with the
street gang Richmond Sur Trece in a neighborhood called the “RST
compound.” The RST compound included the “Green Store” that only
RST gang members could use to sell narcotics.
BALBUENA V. SULLIVAN 7
After interviewing Lawson, the detectives drove her to
the apartment building where she said Balbuena lived and
she pointed out his apartment. 3 Around 2:00 a.m., after
obtaining a warrant, the detectives found Balbuena in his
apartment asleep with his pregnant girlfriend and arrested
him. 4
B.
Balbuena was taken to a police station where two
detectives questioned him, for approximately ninety
minutes, starting at about 2:45 a.m. Balbuena, who was
around sixteen years old, had no prior arrests. Before the
detectives started the interview, Balbuena asked a police
officer if he could use the restroom. The police officer
responded that it was “up to [the detectives]” and that
Balbuena could “ask them.” When the detectives entered the
3
Immediately after the interview at the house, Lawson made similar
statements in a recorded interview at the police station. Lawson testified
at trial and recanted the statements that she made at her house and in the
recorded interview. At the time of the interviews, Lawson was fifteen
years old and had some connection to Balbuena. When officers arrested
Balbuena, he was in bed with his girlfriend and a child who was
Lawson’s son. Lawson also told detectives that Balbuena lived with her
sister-in-law.
4
Several months later, the detectives also recorded an interview with
another witness, Kay Daniels. Daniels was in federal custody for drug-
related offenses and wanted to trade information for a reduction in his
sentence. Daniels said that a few days after Gizmo’s murder, he was
outside Herrera’s house with Herrera, Balbuena (a/k/a Jay Leno), the
“dude that used to work at Beacon,” and Lawson, when Stinson arrived.
Herrera, the “dude that used to work at Beacon,” and Stinson ran up to a
car, and then Daniels heard several shots. Daniels identified Stinson and
the “dude that used to work at Beacon” as the shooters. Daniels saw
Herrera run back to his house with two guns. He was unsure of
Balbuena’s movements; he “didn’t really see him too much.”
8 BALBUENA V. SULLIVAN
interview room, Balbuena told them he was “cool.” Near the
end of the interview, Balbuena asked, and was permitted, to
use the restroom.
At the beginning of the interview, one of the detectives
read Balbuena his Miranda rights as follows:
So, you know you have the right to remain
silent anything you say can be used against
you in a court, you have the right to an
attorney, you have the right to an attorney
prior to your questioning if you desire, if you
can’t afford to hire one, one will be
represented to you free of charge. You
understand all those rights? You’re nodding
your head like you do, right? Okay, you’re
probably curious as to why we’re wanting to
talk [to] you tonight, is that true? With that
in mind, are you willing to talk to us about
why we were at your house tonight? Okay.
Balbuena responded, “Yup. Yup.”
Balbuena initially denied being at the scene of Segura’s
murder. The detectives then falsely told Balbuena that they
knew he was at the scene with Stinson (Jujakas) because they
had already talked to him. They encouraged Balbuena to
speak honestly, saying “it’s important for you to be honest
with us so if there is some way to help yourself out this is the
time to do it.” They also referred to Balbuena’s impending
fatherhood, describing Balbuena as “the sixteen year old
that’s going to be a father soon.”
During the interview, the detectives also presented
Balbuena with alternative scenarios. They stated, “Either
you are a young man that is angry because your best friend
BALBUENA V. SULLIVAN 9
was just killed . . . [o]r somebody like Jujakas forced you to
do this . . . maybe you weren’t thinking straight, maybe you
were upset, maybe that guy aimed the gun at you, maybe
he’s a gang member, maybe he’s the guy that killed Gizmo
. . . . Was it a spur of the moment type thing or did you plan
it for the whole night?” After this last question, Balbuena
acknowledged that he was at the scene of the murder but
denied having a gun.
The detectives continued to present alternatives: “[I]f
it’s a justifiable homicide or it’s something you did out of
rage and you just weren’t thinking straight then that’s
important for us to get down accurately. If you’re just a
killer that just wants to go around to kill people . . . then by
all means tell us and we’ll document that as such.” “Maybe
you were shooting in defense and just, right maybe trying to
scare him.” The detectives also continued making general
appeals to Balbuena’s honesty. Balbuena continued to deny
that he had a gun but admitted he was “right there in front of
the car.”
One of the detectives then stated, “[R]emember, we are
giving you the opportunity to try to work through this so
maybe you can be there for your kid in a few years.”
Balbuena again admitted being in front of the car and again
denied having a gun. The detectives told Balbuena that
witnesses saw him shooting a gun and asked what type of
gun he had, as “only one of them hit somebody . . . .[s]o it’s
important which one you had.” Balbuena then admitted
having a .32-caliber handgun, shooting three or four rounds
at the car’s front window, and seeing two people in the car.
As the interview progressed, the detectives referred to
the possible sentences Balbuena faced, stated that he would
be tried as an adult, and implied that he would receive lenient
treatment if he spoke honestly and showed “remorse.” After
10 BALBUENA V. SULLIVAN
these statements, Balbuena provided details about the
incident. Balbuena told the detectives that Herrera gave him
the gun and told him to shoot, Balbuena and the others—
including Stinson, Herrera, and another person—approached
Segura’s car from behind, Balbuena belonged to the RST
gang, and Segura’s murder was gang retaliation for the
murder of another RST member, “Gizmo.”
C.
Before trial, Balbuena moved to suppress his statements
as involuntary, and the trial court denied the motion. In
April 2008, a jury found Balbuena guilty of first-degree
murder, attempted murder, and street terrorism. The trial
court sentenced Balbuena to eighty-two-years’-to-life
imprisonment. On direct appeal, Balbuena argued, among
other things, that his confession was coerced in violation of
his constitutional rights. The California Court of Appeal
concluded that the detectives improperly offered Balbuena
leniency during the latter part of the interview, but Balbuena
made critical admissions—that he was in front of the car,
that he had a .32-caliber gun, and that he fired three or four
rounds at the front window of the car—before the detectives
employed improper tactics. After considering the totality of
the circumstances, including the video recording of the
interview, the circumstances of the interview, Balbuena’s
age, experience, and demeanor, and Balbuena’s waiver of
his rights under Miranda v. Arizona, 384 U.S. 436 (1966),
the court concluded that Balbuena’s statements were
voluntary.
The state appellate court further found any error in
admitting Balbuena’s statements harmless because the
evidence against him was “very strong.” This evidence
included Lawson’s statements that she saw Balbuena near
the murder scene with a gun shortly before she heard shots,
BALBUENA V. SULLIVAN 11
and that Balbuena told her later that same day that he shot
Segura in the forehead. The court reduced Balbuena’s
sentence to seventy-two-years’-to-life imprisonment but
otherwise affirmed. The California Supreme Court denied
review.
In January 2011, Balbuena filed a timely petition for a
writ of habeas corpus in the district court pursuant to
28 U.S.C. § 2254. Balbuena challenged his conviction and
argued, among other things, that the state court’s admission
of his confession violated the Fourteenth Amendment’s Due
Process Clause because his statements were involuntary. In
May 2012, the district court denied Balbuena’s habeas
petition on the merits of his claims, entered judgment in
favor of respondents, and denied a certificate of
appealability. 5 Balbuena appealed, and, in May 2013, this
court appointed counsel and issued a certificate of
appealability on the sole issue of whether the state court
violated Balbuena’s right to due process by denying his
motion to suppress his confession on the ground that it was
an involuntary product of coercion.
In August 2013, Balbuena asked this court to stay his
appeal and remand to the district court with instructions to
“permit [him] to file an amended petition.” Balbuena
acknowledged that if this court denied his motion he would
“be left to file a new successive habeas petition,” which is
generally barred by 28 U.S.C. § 2244(b)(3). In October
2013, this court denied the motion without prejudice to
refiling with a written indication that the district court would
5
“A disposition is ‘on the merits’ if the district court either considers
and rejects the claims or determines that the underlying claim will not be
considered by a federal court.” McNabb v. Yates, 576 F.3d 1028, 1029
(9th Cir. 2009) (citation omitted).
12 BALBUENA V. SULLIVAN
be willing to entertain the motion. Balbuena obtained
written indication from the district court stating that it “was
willing to entertain” further proceedings but also that it was
making “no comment on the merits of such a motion.” He
then filed a renewed motion to stay the appeal and remand
to the district court to file an amended petition. In December
2013, this court stayed the appeal and remanded under
Federal Rule of Appellate Procedure 12.1(b) to permit the
district court to consider Balbuena’s Rule 60(b) motion.
Balbuena returned to the district court and filed a Rule
60(b) motion for relief from judgment to allow him to amend
his habeas petition to add a new claim that the admission of
his confession violated his Miranda rights. In November
2014, the district court denied the motion without prejudice
and stayed proceedings to allow Balbuena to exhaust his new
claim in state court. In January 2017, the district court
reopened proceedings, and Balbuena filed a renewed Rule
60(b) motion in March 2017. In February 2018, the district
court denied the motion as an unauthorized second or
successive petition under 28 U.S.C. § 2244(b)(3)(A).
Balbuena appealed that decision, and this court consolidated
the appeals.
II.
This court reviews de novo a district court’s denial of a
habeas corpus petition, Smith v. Ryan, 813 F.3d 1175, 1178–
79 (9th Cir. 2016), and a dismissal of a Rule 60(b) motion as
an unauthorized second or successive § 2254 petition, Jones
v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013). Both claims are
governed by standards set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See
28 U.S.C. §§ 2244(b), 2254(d).
BALBUENA V. SULLIVAN 13
III.
A.
Under § 2254, a state prisoner may challenge the
constitutionality of his custody by filing a petition for a writ
of habeas corpus in federal court. 28 U.S.C. § 2254(a). In
his habeas petition, Balbuena challenged his state custody
arguing, among other things, that the admission of his
confession violated his due process rights because his
statements were the involuntary product of coercion and,
therefore, the state trial and appellate courts unreasonably
found his confession voluntary.
We consider Balbuena’s petition under the framework of
AEDPA and apply a “highly deferential standard for
evaluating state-court rulings.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997)). Under AEDPA, a
federal court may only grant habeas corpus relief when the
state court’s ruling was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2).
Under the first clause of § 2254(d)(1), a state court’s
decision is “contrary to” clearly established federal law if it
contradicts governing law in Supreme Court cases, or if it
reaches a different result than Supreme Court precedent
when considering materially indistinguishable facts. See
Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the
second clause, a state court’s decision is an “unreasonable
application” of clearly established federal law if it identifies
the correct “governing legal rule but applies it unreasonably
14 BALBUENA V. SULLIVAN
to the facts” of the case. Id. at 407–08. “The ‘unreasonable
application’ clause requires the state court decision to be
more than incorrect or erroneous”; it must be “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
(citing Williams, 529 U.S. at 409–10, 412).
Under § 2254(d)(2), a state court’s factual
determinations are not “unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 558 U.S.
290, 301 (2010). That “[r]easonable minds reviewing the
record might disagree” about a factual finding is insufficient
to “supersede” the state court’s determination. Rice v.
Collins, 546 U.S. 333, 341–42 (2006).
When applying these standards to a petitioner’s claims,
this court considers the last reasoned state court decision—
here, the decision of the California Court of Appeal. See
Martinez v. Cate, 903 F.3d 982, 991 (9th Cir. 2018).
Balbuena’s claim that the state court violated his due process
rights by admitting his coerced confession challenges the
constitutionality of his custody. Accordingly, we consider
whether the state court’s adjudication of this claim resulted
in a decision that was “contrary to” or involved an
“unreasonable application of” established federal law, or that
was based on an unreasonable determination of the facts
considering the evidence presented in the state court
proceedings. See 28 U.S.C. § 2254(d).
B.
An involuntary or coerced confession violates a
defendant’s right to due process under the Fourteenth
Amendment and is inadmissible at trial. Jackson v. Denno,
378 U.S. 368, 385–86 (1964); see Dickerson v. United
States, 530 U.S. 428, 433–34 (2000). To determine whether
BALBUENA V. SULLIVAN 15
a confession is involuntary, we must ask “whether a
defendant’s will was overborne by the circumstances
surrounding the giving of a confession,” considering “the
totality of all the surrounding circumstances—both the
characteristics of the accused and the details of the
interrogation.” Dickerson, 530 U.S. at 434 (internal
quotation marks and citations omitted). “The characteristics
of the accused can include the suspect’s age, education, and
intelligence as well as a suspect’s prior experience with law
enforcement,” Yarborough v. Alvarado, 541 U.S. 652, 668
(2004) (citations omitted), and the suspect’s maturity,
Withrow v. Williams, 507 U.S. 680, 693 (1993). The
“potential circumstances” of the interrogation include its
length and location, and “the failure of police to advise the
defendant of his rights to remain silent and to have counsel
present during custodial interrogation.” Id. at 693–94
(citation omitted).
Generally telling a suspect to speak truthfully does not
amount to police coercion. See Amaya-Ruiz v. Stewart,
121 F.3d 486, 494 (9th Cir. 1997), overruled on other
grounds by United States v. Preston, 751 F.3d 1008 (9th Cir.
2014) (en banc). Police deception alone also “does not
render [a] confession involuntary,” United States v. Miller,
984 F.3d 1028, 1031 (9th Cir. 1993) (citing Frazier v. Cupp,
394 U.S. 731, 737–39 (1969)), nor is it coercive to recite
“potential penalties or sentences,” including the potential
penalties for lying to the interviewer, United States v.
Haswood, 350 F.3d 1024, 1029 (9th Cir. 2003) (citations
omitted).
“The [voluntariness] determination ‘depend[s] upon a
weighing of the circumstances of pressure against the power
of resistance of the person confessing.’” Dickerson,
530 U.S. at 434 (second alteration in original) (quoting Stein
16 BALBUENA V. SULLIVAN
v. New York, 346 U.S. 156, 185 (1953)). Thus, the court
reviews a confession from a teenager with “special caution.”
Doody v. Ryan, 649 F.3d 986, 1011 (9th Cir. 2011) (en
banc). Even in the case of a juvenile, however, indicating
that a cooperative attitude would benefit the accused does
not render a confession involuntary unless such remarks rise
to the level of being “threatening or coercive.” Juan H. v.
Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (quoting Fare v.
Michael C., 442 U.S. 707, 727 (1979)).
C.
Balbuena argues that his statements were involuntary
based on three factors: (1) his youth, inexperience, and
immaturity; (2) the Miranda warnings, which he
characterizes as incomplete; and (3) the interrogation tactics.
We consider whether Balbuena’s will was overborne under
the totality of the circumstances. Dickerson, 530 U.S. at
434. We address each of these arguments in turn, with the
transcript and the video recording of the interview to assist
our review. See Doody, 649 F.3d at 1009 (stating that “[t]he
audiotapes of [the petitioner’s] interrogation are dispositive
in this case, as we are not consigned to an evaluation of a
cold record, or limited to reliance on the detectives’
testimony.”).
1.
First, Balbuena’s status as “a juvenile is of critical
importance in determining the voluntariness of his
confession.” Id. at 1008; see Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973) (observing that the voluntariness
of a statement depends on “the characteristics of the
accused,” including his “youth” (citation omitted)).
Balbuena asserts that he was fifteen years old at the time of
the interview and suggests that the state court’s
BALBUENA V. SULLIVAN 17
determination that he was sixteen years old was an
unreasonable determination of the facts. See 28 U.S.C.
§§ 2254(d)(2), (e). The evidence in the record, however,
including Balbuena’s telling the detectives he was sixteen
years old, supports the conclusion that Balbuena was sixteen
years old. Thus, the state court’s conclusion was not
unreasonable.
Conceding that “whether he was 15 or 16 at the time of
the shooting is of little legal significance,” Balbuena argues
that the state court failed to “evaluate the impact of the
officers’ statements on an isolated youngster with no
relevant experience.” Balbuena argues that this failure was
objectively unreasonable. But Balbuena’s argument is based
on the false premise that the state court “mentioned his age
only once in passing.” Instead, the state court addressed
Balbuena’s age when considering the totality of
circumstances to determine whether his will was overborne.
That section of the state appellate court opinion reads, in
part, as follows:
Having reviewed the videotape of
[Balbuena’s] confession, we find ourselves in
agreement with the trial court’s
commendably thorough and detailed ruling
regarding the nature of the interview. While
[Balbuena] was a minor without criminal
history, he was hardly a “child” as
characterized in his briefs: He was 16 years
old, arrested in bed with his pregnant
girlfriend, and well versed in the gang
activities in his neighborhood. The
atmosphere of the hour and a half long
interview (which included periods when he
was left in the interview room by himself)
18 BALBUENA V. SULLIVAN
was not overly harsh or threatening, and
[Balbuena’s] demeanor throughout was
relaxed and displayed no intimidation or fear.
People v. Balbuena, No. A122043, 2010 WL 1783558, *15
(Cal. Ct. App. May 5, 2010) (citation omitted). The state
court’s conclusion that Balbuena’s confession was
voluntary, after considering his age and lack of criminal
record, was not an unreasonable application of the law.
2.
Second, although Balbuena did not assert a separate
Miranda claim in the state trial or appellate court, we
consider the adequacy of the warnings he received as another
factor in the voluntariness determination. 6 See Withrow, 507
U.S. at 693–94. Moreover, Balbuena argues that because he
has “consistently raised” the “claim of involuntariness,” this
court must weigh “[a]ll circumstances, including the failure
to advise an in-custody suspect of his right to counsel.”
Therefore, as part of the totality of the circumstances
relevant to Balbuena’s Fourteenth Amendment claim, we
consider his arguments that the Miranda warnings he
6
Although Balbuena did not assert a Miranda claim in the trial
court, he challenged the admission of his confession on other grounds
and the court held a voluntariness hearing. The state submitted the
videotape and transcript of Balbuena’s interview, including the Miranda
warnings. On cross examination, one of the detectives testified that
Balbuena was advised “of his rights,” and defense counsel did not
challenge that statement. The trial court concluded that Balbuena was
“given his Miranda rights at the beginning of the interview and he did
expressly waive those rights.” In the appellate court, Balbuena
challenged the voluntariness of his confession, but again did not assert
that the Miranda warnings were inadequate. The appellate court stated,
without explanation, that Balbuena “was advised of his Miranda rights
and waived them.”
BALBUENA V. SULLIVAN 19
received were deficient; we do not consider these arguments
as a separate Sixth Amendment claim.
Balbuena argues that the warnings he received were
deficient because the detectives failed to advise him that he
had the right to have an attorney present during questioning.
See Miranda, 384 U.S. at 471 (holding that a suspect “must
be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during
interrogation”). He argues that the state appellate court’s
failure to consider the detectives’ Miranda violation “was
objectively unreasonable and contrary to precedent.”
The Miranda decision, and the warnings it requires as
“absolute prerequisite[s] to interrogation,” 384 U.S. at 471,
are long standing and clearly established federal law. See
Williams, 529 U.S. at 412 (explaining that “clearly
established Federal law” under § 2254(d)(1) “refers to the
holdings . . . of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision”). Moreover,
Balbuena correctly notes that this court has concluded that
Miranda warnings are inadequate when they advise a
defendant of the right to counsel before questioning, but do
not advise a defendant of the right to counsel during
questioning. See United States v. Bland, 908 F.2d 471, 473–
74 (9th Cir. 1990); United States v. Noti, 731 F.2d 610, 615
(9th Cir. 1984). But decisions of this court, including Bland
and Noti, are not “clearly established Federal law” for
purposes of review under the AEDPA. See Williams,
529 U.S. at 412. Instead, we must look to Supreme Court
precedent as we consider whether the state appellate court’s
determination that Balbuena’s confession was voluntary,
based on the totality of the circumstances including the
Miranda warnings, Withrow, 507 U.S. 693–94, was an
unreasonable application of federal law.
20 BALBUENA V. SULLIVAN
Although the Supreme Court “has not dictated the words
in which the essential information must be conveyed,”
Florida v. Powell, 559 U.S. 50, 60 (2010), the warnings must
“reasonably convey to a suspect his rights as required by
Miranda.” Id. (modification, citation, and quotation marks
omitted); see also Duckworth v. Eagan, 492 U.S. 195, 202
(1989) (explaining that the Court has “never insisted that
Miranda warnings be given in the exact form described in
that decision.”). In Powell, the Supreme Court considered
an argument similar to Balbuena’s argument—that a
defendant’s Miranda warnings were constitutionally infirm
because the detectives advised him that he had a right to an
attorney before questioning, but they did not advise him that
he had the right to have an attorney present during
questioning. See 559 U.S. at 60–62. In Powell, the
defendant was advised that he had “the right to talk to a
lawyer before answering any of [their] questions” and “the
right to use any of these rights at any time [he] want[ed]
during this interview.” Id. at 54. The defendant, however,
was not advised that he had the right to have an attorney
present during questioning. See id.
The Court considered whether these Miranda warnings
satisfied the requirement “that an individual held for
questioning ‘must be clearly informed that he has the right
to consult with a lawyer and to have the lawyer with him
during interrogation.’” Id. at 60 (quoting Miranda, 384 U.S.
at 471). The Court concluded that the challenged warnings
“reasonably conveyed [the defendant’s] right to have an
attorney present, not only at the outset of interrogation, but
at all times.” Id. at 62. “To reach the opposite conclusion,
i.e., that the attorney would not be present throughout the
interrogation, the suspect would have to imagine an unlikely
scenario: To consult counsel, he would be obliged to exit and
reenter the interrogation room between each query.” Id.
BALBUENA V. SULLIVAN 21
Here, Balbuena was advised that he had the right to an
attorney “prior to” questioning and was also advised that he
“ha[d] the right to an attorney.” 7 Although these warnings
are not identical to those described in Powell, there could be
“fairminded disagreement,” see Harrington v. Richter,
562 U.S. 86, 103 (2011), over whether the warnings in this
case and in Powell were sufficiently similar to conclude that
the warnings “reasonably conveyed” Balbuena’s right to
have an attorney present at all times, Powell, 559 U.S. at 62.
Therefore, the state court’s determination that Balbuena was
advised of his Miranda rights was not “objectively
unreasonable.” See Lockyer, 538 U.S. at 75. Based on the
record in the state court, and applying the deferential review
of the AEDPA, we conclude it was not unreasonable for the
state court to conclude, under the totality of the
circumstances including the Miranda warnings, that
Balbuena’s confession was voluntary.
3.
Third, Balbuena asserts that the detectives used coercive
techniques and compares the circumstances of his interview
to Preston where, on direct appeal, this court held that a
thirty-eight minute noncustodial interview of an eighteen-
year old with an IQ of sixty-five was coercive and rendered
his confession involuntary. 751 F.3d at 1028. Balbuena also
compares this case to Rodriguez v. McDonald, where the
court held that police officers’ suggestion that cooperation
would result in leniency supported the conclusion that the
suspect’s waiver of the right to counsel was involuntary.
7
Balbuena was advised: “you have the right to an attorney, you have
the right to an attorney prior to your questioning if you desire, if you
can’t afford to hire one, one will be represented [sic] to you free of
charge.”
22 BALBUENA V. SULLIVAN
872 F.3d 908, 923–24 (9th Cir. 2017). In Rodriguez, the
defendant was fourteen years old and had Attention Deficit
Hyperactivity Disorder and a “borderline” IQ. Id. at 923–
23. The officers continued to question the defendant even
after he requested a lawyer, and “impressed upon [the
defendant] that he would imminently be charged with
murder.” Id. at 924.
Like the defendants in Preston and Rodriguez, Balbuena
was a youth at the time of the interview, but unlike those
defendants there is no evidence that Balbuena had a limited
IQ or that he was “easily confused” and “highly suggestible
and easy to manipulate.” See Preston, 751 F.3d at 1022,
1028, 1030 (suggesting that the court might “reach a
different conclusion regarding someone of normal
intelligence”). Additionally, unlike the defendant in
Rodriguez, Balbuena was advised of his Miranda rights and
never asked to speak to an attorney.
On the other hand, as Balbuena argues, the detectives in
this case used some of the same interview techniques
employed in Preston and Rodriguez—such as suggesting
alternative scenarios and making implied offers of leniency.
See Preston, 751 F.3d at 1025–26; Rodriguez, 872 F.3d
at 923–34. References to a suspect’s unborn child, in some
circumstances, could also be considered a coercive interview
tactic. See Brown v. Horell, 644 F.3d 969, 980–82 (9th Cir.
2011) (deeming a confession involuntary in light of the
defendant’s limited education, relatively young age (twenty-
one years), repeated references to his unborn child, and
lengthy custodial interrogation).
But “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Harrington
v. Richter, 562 U.S. 86, 102 (2011). Instead, we consider the
totality of the circumstances under a highly deferential
BALBUENA V. SULLIVAN 23
standard to determine the reasonableness of the state court’s
conclusion that Balbuena’s statements were voluntary. See
Yarborough, 541 U.S. at 664. The “totality of the
circumstances” test is a general standard requiring “even
greater deference under AEDPA.” Cook v. Kernan,
948 F.3d 952, 968 (9th Cir. 2020).
To be sure, Balbuena’s youth and lack of experience with
law enforcement, the time of the interview, the location of
the interview, and the detectives’ tactics are all factors that
could potentially support a conclusion that Balbuena’s
confession was involuntary. See, e.g., Haley v. Ohio,
332 U.S. 596, 599–600 (1948) (finding confession
involuntary when a fifteen-year-old was questioned for five
hours, between midnight until dawn, by “relays of” one or
two officers at a time); Doody, 649 F.3d at 1009, 1012–13
(finding confession involuntary when a seventeen-year-old
was questioned for nearly thirteen hours by “tag teams” of
two, three, and four detectives, while isolated, sleep
deprived, and held in a room with only a straight-backed
chair and no table to lean on, and relentlessly questioned
even after he stopped responding, and told that he had to
answer questions). But the circumstances of Balbuena’s
interview are a far cry from Haley and Doody.
Contrary to Balbuena’s arguments that the detectives
overbore his will, the video recording reveals that the tone
of the interview was non-threatening. Balbuena spoke easily
with the detectives, displayed a calm demeanor with no
indication of fear or intimidation, and did not react when the
detectives referred to his unborn child. He even
spontaneously offered to show the detectives his tattoo. The
interview lasted ninety minutes, including breaks and an
approximately thirty-minute period when Balbuena was left
alone in the room. The same two detectives conducted the
24 BALBUENA V. SULLIVAN
interview and Balbuena was not subjected to “tag team”
questioning, nor was he surrounded by multiple officers.
Balbuena sat in a chair next to a table in a relaxed posture
with his hands behind his head or with one arm slung over
the back of chair for a large portion of the interview. About
an hour into the interview, Balbuena yawned and leaned on
the table when the detectives left the room, but he returned
to a more upright posture and alternated between leaning on
the table and sitting upright for the remainder of the
interview.
In sum, the video recording of Balbuena’s interview, like
the audio recording in Doody, is dispositive and supports the
state court’s conclusion that Balbuena voluntarily confessed.
D.
We conclude that the state court’s voluntariness
determination was not contrary to or an unreasonable
application of federal law. The state court considered the
totality of the circumstances, including the adequacy of the
Miranda warnings. The state court did not unreasonably
conclude that Balbuena was sixteen years old and considered
his age, experience, and maturity as part of the totality of the
circumstances of his confession. Finally, the state court did
not unreasonably conclude that the circumstances of the
interview, which included the detectives’ limited references
to Balbuena’s unborn child, use of “alternative scenarios,”
and implied offers of leniency, were not coercive. The video
recording of the interview refutes Balbuena’s argument that
those tactics overbore his will and rendered his confession
involuntary. Therefore, applying AEDPA’s highly
deferential standard for habeas corpus review, we conclude
that the state court’s determination that Balbuena’s
confession was voluntary was not unreasonable.
BALBUENA V. SULLIVAN 25
IV.
We next address whether the district court erred by
denying Balbuena’s Rule 60(b) motion as an unauthorized
second or successive petition under 28 U.S.C.
§ 2244(b)(3)(A). Balbuena argues that the district court
should have considered his Rule 60(b) motion as a motion to
amend his habeas petition because he filed it while his appeal
from the denial of his habeas petition remained pending
before this court. Therefore, Balbuena contends, his claim
was not “fully adjudicated.” Because Balbuena asserted a
new claim in his Rule 60(b) motion despite the district
court’s previously adjudicating his habeas petition on the
merits, we conclude that the district court properly denied
that motion as an unauthorized second or successive petition.
A.
AEDPA generally bars second or successive habeas
petitions. Section 2244(b)(1) states that “[a] claim presented
in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall
be dismissed.” 28 U.S.C. § 2244(b)(1). No exceptions exist
to this statutory bar. See Goodrum v. Busby, 824 F.3d 1188,
1193 (9th Cir. 2016) (explaining that claims asserted in an
earlier petition “must be dismissed, period”).
“If a second or successive petition presents new claims
that were not previously raised, those claims must be
dismissed as well . . . .” Id. (citing 28 U.S.C. § 2244(b)(2)).
Congress, however, provided two narrow exceptions to this
statutory bar. The first applies if the “new claim relies on a
new rule of constitutional law, made retroactive on collateral
review.” 28 U.S.C. § 2244(b)(2)(A). The other applies if
the new claim turns on newly discovered evidence that
26 BALBUENA V. SULLIVAN
shows a high probability of actual innocence. Id.
§ 2244(b)(2)(B).
Before filing a second or successive petition, a petitioner
must file a motion in the appropriate court of appeals and
obtain an order authorizing the district court to consider the
petition. See id. § 2244(b)(3)(A). This requirement is
jurisdictional. See Cooper v. Calderon, 274 F.3d 1270,
1274–75 (9th Cir. 2001) (per curiam). Here, the district
court concluded that Balbuena attempted to assert a new
claim through his Rule 60(b) motion and, therefore, it was
“in truth a request to file an unauthorized second or
successive habeas petition” because Balbuena had not
obtained an order from this court authorizing the district
court to consider it.
Balbuena argues that the district court mischaracterized
his Rule 60(b) motion as a second or successive petition
subject to § 2244, when it should have construed it as a
motion to amend his habeas petition under Rules 15 and
60(b). Balbuena’s argument turns on his characterization of
his habeas petition as “pending” because “all proceedings,
including appellate proceedings, have not been completed.”
Generally, “a petition will not be deemed second or
successive unless, at a minimum, an earlier-filed petition has
been finally adjudicated.” Goodrum, 824 F.3d at 1194
(citing Woods v. Carey, 525 F.3d 886, 889 (9th Cir. 2008)).
“Thus, when a petitioner files a new petition while his first
petition remains pending, courts have uniformly held that the
new petition cannot be deemed second or successive.” Id.
(citations omitted).
Moreover, a movant does not make a habeas corpus
claim, and therefore does not file a successive petition,
“when he merely asserts that a previous ruling which
BALBUENA V. SULLIVAN 27
precluded a merits determination was in error—for example,
a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.” See Gonzalez v.
Crosby, 545 U.S. 524, 532 n.4 (2005); see also Slack v.
McDaniel, 529 U.S. 473, 485–86 (2000) (concluding that a
habeas petition filed “after an initial habeas petition was
unadjudicated on its merits and dismissed for failure to
exhaust state remedies is not a second or successive
petition”); Stewart v. Martinez-Villareal, 523 U.S. 637, 644–
45 (1998) (explaining that a habeas petition filed after an
earlier petition was dismissed as premature was not a second
or successive petition but part of the adjudication of the first
petition).
Balbuena does not dispute that the district court denied
his habeas petition on the merits. Instead, he argues that a
habeas petition is not “finally adjudicated,” even after a
district court has denied it on the merits, if that denial is
pending on appeal. Therefore, we first consider whether
Balbuena’s habeas petition was “pending” for purposes of
§ 2244 because its denial was on appeal in this court when
he filed his Rule 60(b) motion in the district court.
B.
To support his argument, Balbuena relies on two cases
from this circuit, Woods and Goodrum, and attempts to
distinguish another, Beaty v. Schriro, 554 F.3d 780 (9th Cir.
2009) (published order). But we have not adopted the
meaning of “finally adjudicated” that Balbuena advocates.
Therefore, Balbuena’s reliance on Woods and Goodrum is
misplaced, and his attempt to distinguish Beaty fails.
Furthermore, these cases do not address Rule 60(b)
motions. As we explain later, this is a significant procedural
distinction that we must consider in light of the Supreme
28 BALBUENA V. SULLIVAN
Court’s holding in Gonzalez that a Rule 60(b) motion that
asserts a claim on the merits is in effect a habeas petition and
is subject to requirements of § 2244(b) for successive
petitions. See 545 U.S. at 531–32.
1.
Contrary to Balbuena’s characterization of Woods and
Goodrum, we have not held that a habeas petition is pending,
and thus not “fully adjudicated,” simply because the denial
of that petition is before this court on appeal. In Woods, we
considered whether § 2244(b) barred a pro se petitioner’s
second habeas petition, which he filed while his first petition
was still pending in the district court. 525 F.3d at 887. We
held that the district court should have construed the second
petition as a motion to amend the petition that was still
pending in the district court. Id. at 890. But we did not
consider how to treat a second petition that is filed while a
prior petition is pending on appeal. Therefore, Woods
establishes only that a petition that is still pending in the
district court is not final for purposes of § 2244. It offers no
support for Balbuena’s position.
Our decision in Goodrum similarly fails to support
Balbuena’s argument. There, we explained—interpreting
Woods—that if a petitioner files a second petition in the
district court while his first petition is still pending in that
court, the district court must rule on the second petition as a
motion to amend under Rule 15. 824 F.3d at 1195. If a
petitioner files an application for leave to file a second or
successive petition in this court and “informs us that an
earlier-filed petition remains pending” in the district court,
we must construe that application as a motion to amend, but
“we lack[] authority to rule on such a motion in the first
instance.” Id. Instead, “[w]e can issue an order advising the
pro se petitioner that his application is being denied as
BALBUENA V. SULLIVAN 29
unnecessary on the ground that the new petition he seeks to
file is not second or successive and that he is therefore free
to file it in the district court,” or if the new petition is
attached to the application, as our rules require, “we can
transfer the petition to the district court.” Id. But our
decision in Goodrum does not resolve the question here:
whether a petition should be considered “finally
adjudicated” when its denial is pending on appeal.
If our decisions in Woods and Goodrum do not support
Balbuena’s position, then our decision in Beaty defeats it.
There, after the district court denied the petitioner’s habeas
petition in the first instance and on remand after a first
appeal, he filed a motion to amend his petition and argued
that it should be considered part of his original habeas
proceeding. Beaty, 554 F.3d at 782. The district court
denied the motion to amend, the petitioner appealed again,
and while that appeal was pending, he applied to file a
second or successive petition, arguing his additional claims
should be considered as part of his original habeas
proceeding. Id. We rejected the petitioner’s arguments and
“decide[d] that [he] cannot use Woods to amend his petition
after the district court has ruled and proceedings have begun
in this court . . . .” Id. at 783 n.1. Because the petitioner did
not move to amend until “after the district court had denied
his claims,” he was required to satisfy the requirements for
successive petitions under § 2244(b). Id. at 782–83.
Here, like the petitioner in Beaty, Balbuena sought to add
a new claim after the district court denied his petition and he
appealed that denial. Applying Beaty, the district court
properly considered Balbuena’s Rule 60(b) motion a second
or successive application for habeas corpus relief. Because
Balbuena neither sought, nor obtained, authorization from
this court to file a second or successive habeas petition, the
30 BALBUENA V. SULLIVAN
district court lacked jurisdiction to consider Balbuena’s new
claim. See 28 U.S.C. § 2244(b)(3); Cooper, 274 F.3d
at 1274–75.
2.
Despite Beaty’s clear command, Balbuena urges this
court to follow the Second Circuit’s decisions in Ching v.
United States, 298 F.3d 174 (2d Cir. 2002), and Whab v.
United States, 408 F.3d 116 (2d Cir. 2005), as well as the
Third Circuit’s decision in United States v. Santarelli,
929 F.3d 95 (3d Cir. 2019). In contrast to our holding in
Beaty, each of these cases concluded that a habeas petition
is not “fully adjudicated” while its denial is pending on
appeal and, therefore, a second petition filed while that
appeal is pending is not a second or successive petition under
§ 2244. Santarelli, 929 F.3d at 104–05; Whab, 408 F.3d
at 118; Ching, 298 F.3d at 175. To the extent these cases
conflict with Beaty, we decline to follow them. See United
States v. Hayes, 231 F.3d 1132, 1139–40 (9th Cir. 2000).
Moreover, these cases are distinguishable because they
do not address Rule 60(b) motions or apply Gonzalez. 8 In
Santarelli and Ching, after the appellate courts reversed and
remanded the denial of the petitioners’ initial habeas
petitions, the initial and second petitions were before the
district courts simultaneously. Santarelli, 929 F.3d at 107;
Ching, 298 F.3d at 176. Therefore, the district courts could
apply Rule 15 and consider the petitioners’ second petitions
8
The Second Circuit issued its decisions in Ching and Whab before
the Supreme Court’s decision in Gonzalez. In Santarelli, the Third
Circuit distinguished Gonzalez because the petitioner’s motion to file a
second or successive petition was not a Rule 60(b) motion. 929 F.3d
at 105.
BALBUENA V. SULLIVAN 31
as motions to amend the initial petitions.9 Santarelli,
929 F.3d at 105; Ching, 298 F.3d at 179–80.
In Whab, the court of appeals denied a certificate of
appealability for the petitioner’s initial habeas petition and
transferred his motion seeking leave to file a second petition
to the district court, concluding that the subsequent petition
was not second or successive. 10 408 F.3d at 118, 120.
However, the court distinguished Ching because, after it
denied the certificate of appealability, “the district court
never had [Whab’s] two petitions before it simultaneously.”
Id. at 119. The court explained that it could “see no reason
in these circumstances to instruct the district court to treat
the new petition as a motion to amend the initial petition.”
Id. Thus, the court apparently concluded that Rule 15 would
not apply on remand, but it did not address Rule 60 or any
other potentially applicable rules or procedures.
Here, we entered a limited remand under Federal Rule of
Appellate Procedure 12.1(b) for the district court to consider
9
The courts explained that when the denial of a habeas petition is
pending on appeal, the district court lacks jurisdiction to consider a
subsequent petition as a motion to amend. Santarelli, 929 F.3d at 106
(citing Griggs v Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982));
Ching, 298 F.3d at 180, n.5 (same). The Third Circuit concluded that,
given these “jurisdictional dynamics,” a motion to file a subsequent
habeas petition, filed when the denial of an initial petition is pending on
appeal, should be construed as a motion to amend and stayed in the
district court pending the resolution of the appeal. Santarelli, 929 F.3d
at 105-06. Both courts, however, concluded that if the district court’s
denial of an initial petition is affirmed, the petitioner must satisfy the
requirements applicable to second or successive petitions. Id. at 106;
Ching, 298 F.3d at 180 n.5.
10
Whab involved a petition under 28 U.S.C. § 2255, but
§ 2244(a)(3)(A) also applies to second or successive § 2255 petitions.
32 BALBUENA V. SULLIVAN
Balbuena’s Rule 60(b) motion, but we retained jurisdiction
over the denial of his habeas petition. Unlike Ching and
Santarelli, the district court could not apply Rule 15; instead,
it could only consider Balbuena’s new claim if it set aside its
earlier judgment under Rule 60(b). See Lindauer v. Rogers,
91 F.3d 1355, 1357 (9th Cir. 1996) (“[O]nce judgment has
been entered in a case, a motion to amend the complaint can
only be entertained if the judgment is first reopened under a
motion brought under Rule 59 or 60.”). But, as we explain
next, Gonzalez establishes that Balbuena’s Rule 60(b)
motion was a disguised habeas petition, and the district court
properly denied it as an unauthorized second or successive
petition.
C.
Under Rule 60(b), a party may seek relief from a final
judgment under limited circumstances, including fraud,
mistake, newly discovered evidence, or any other reason that
justifies relief. Fed. R. Civ. P. 60(b). In Gonzalez, the
Supreme Court explained that “Rule 60(b), like the rest of
the Rules of Civil Procedure, applies in habeas corpus
proceedings under 28 U.S.C. § 2254, only ‘to the extent that
[it is] not inconsistent with’ applicable federal statutory
provisions and rules.” 545 U.S. at 529 (alteration in original)
(footnote omitted) (quoting 28 U.S.C. § 2254). Therefore,
the Court considered “whether, in a habeas case, [Rule
60(b)] motions are subject to the additional restrictions that
apply to ‘second or successive’ habeas corpus petitions
under the provisions of [AEDPA], codified at 28 U.S.C.
§ 2244(b).” Id. at 526.
To answer this question, the Court first considered
“whether a Rule 60(b) motion filed by a habeas petitioner is
a ‘habeas corpus application’ as the statute uses that term,”
id. at 530 (quoting 28 U.S.C. § 2244(b)), and determined that
BALBUENA V. SULLIVAN 33
“an ‘application’ for habeas relief is a filing that contains one
or more ‘claims,’” id. The Court then defined a “claim” as
“an asserted federal basis for relief from a state court’s
judgment of conviction.” Id. Thus, a Rule 60(b) motion
asserts a claim if it “seeks to add a new ground for relief” or
“attacks the federal court’s previous resolution of a claim on
the merits.” Id. at 532.
Furthermore, a Rule 60(b) motion that asserts a
previously omitted claim based on excusable neglect, or
argues newly discovered evidence supports a previously
denied claim, or argues a change in substantive law justifies
relief from the previous denial of a claim, “is in substance a
successive habeas petition and should be treated
accordingly.” Id. at 531; see also Jones, 733 F.3d at 834
(“[A] motion that . . . ‘in effect asks for a second chance to
have the merits determined favorably’ raises a claim that
takes it outside the bounds of Rule 60(b) and within the
scope of AEDPA’s limitations on second or successive
habeas corpus petitions.” (quoting Gonzalez, 545 U.S. at 532
n.5)).
The Court explained that “[a] habeas petitioner’s filing
that seeks vindication of such a claim is, if not in substance
a ‘habeas corpus application,’ at least similar enough that
failing to subject it to the same requirements would be
‘inconsistent with’ the statute.” Gonzalez, 545 U.S. at 531
(quoting 28 U.S.C. § 2254 Rule 11)). Therefore, “[u]sing
Rule 60(b) to present new claims for relief from a state
court’s judgment of conviction—even claims couched in the
language of a true Rule 60(b) motion—circumvents
AEDPA’s requirement that a new claim be dismissed unless
it relies on either a new rule of constitutional law or newly
discovered facts.” Id. Using Rule 60(b) to present such
claims would also “impermissibly circumvent the
34 BALBUENA V. SULLIVAN
requirement that a successive habeas petition be precertified
by the court of appeals as falling within an exception to the
successive-petition bar.” Id. at 532. Therefore, a Rule 60(b)
motion that asserts a new claim is in effect a habeas corpus
petition that is subject to the requirements of § 2244(b). See
id. at 531–32.
But if no claim is presented, then a Rule 60(b) motion
should not be treated like a habeas corpus petition. Id.
at 533. A Rule 60(b) motion is not a subsequent habeas
petition when it “attacks, not the substance of the federal
court’s resolution of a claim on the merits, but some defect
in the integrity of the habeas proceedings.” Id. at 532; see
also Jones, 733 F.3d at 836 (“Gonzalez firmly stands for the
principle that new claims cannot be asserted under the
format of a Rule 60(b) motion, and instead Rule 60(b) is
properly applied when there is some problem going to the
integrity of the court process on the claims that were
previously asserted.”).
Balbuena distinguishes Gonzalez by characterizing it as
holding that “an applicant’s Rule 60(b) motion may be, not
must be, a successive habeas application.” This argument is
technically correct; Gonzalez explained that not all Rule
60(b) motions are disguised habeas petitions. See 545 U.S.
at 533 (“When no ‘claim’ is presented, there is no basis for
contending that the Rule 60(b) motion should be treated like
a habeas corpus application.”). But this argument does not
explain why Balbuena’s Rule 60(b) motion is not a disguised
habeas petition. Balbuena acknowledges that the Miranda
claim he asserts in his Rule 60(b) motion is a new claim.11
11
Balbuena argued to the district court that he should receive relief
under Rule 60(b) because his state court counsel failed to raise his
Miranda claim. But “an attack based on the movant’s own conduct, or
BALBUENA V. SULLIVAN 35
Therefore, Balbuena’s Rule 60(b) motion “seeks to add a
new ground for relief,” and we must conclude that it is a
disguised habeas petition. See id. at 532.
D.
But does our conclusion that Balbuena’s Rule 60(b)
motion is a disguised habeas petition mean that it is a second
or successive petition and subject to the requirements of
§ 2244(b)? Balbuena states that Gonzalez “did not address
when a second-in-time application constitutes a ‘successive’
petition under the statute nor when a petition is ‘finally’
adjudicated.” Thus, he appears to argue that even if his Rule
60(b) motion is a disguised habeas petition, it is not a second
or successive petition under § 2244(b) because the denial of
his initial petition was pending on appeal. But, as we set
forth next, neither the Supreme Court’s reasoning in
Gonzalez, nor its further explanation of Rule 60(b) motions
in Banister v. Davis, ___ U.S. ___, 140 S. Ct. 1698 (2020),
support this argument. And we have not identified any court
that has adopted it.
1.
First, the petitioner in Gonzalez filed his Rule 60(b)
motion after the conclusion of his appeal from his initial
habeas petition, 545 U.S. at 527, but the Court’s analysis did
not turn on, or even address, the timing of the Rule 60(b)
motion, id. at 530–32. Instead, the Court focused on the
nature of the motion, concluding that a Rule 60(b) motion
his habeas counsel’s omissions . . . ordinarily does not go to the integrity
of the proceedings.” Gonzalez, 545 U.S. at 532 n.5. Therefore, the
district court correctly concluded that Balbuena was not alleging a defect
in the federal habeas proceedings but was instead asking to amend his
petition to add a new claim.
36 BALBUENA V. SULLIVAN
that asserts a claim on the merits is a disguised habeas
petition and “in substance a successive habeas petition [that]
should be treated accordingly.” Id. at 531. However, a Rule
60(b) motion that does not assert a claim, but instead attacks
the integrity of the proceedings, is a proper Rule 60(b)
motion not subject to § 2244(b). Id. at 532–33. In contrast
to Balbuena’s contention, Gonzalez does not suggest that a
Rule 60(b) motion advancing a new claim is not a successive
petition if it is filed during the appeal of the initial petition.
2.
Second, the Supreme Court’s recent decision in Banister
further supports the conclusion that Rule 60(b) motions
asserting new claims, regardless of when they are filed, are
successive habeas petitions subject to the requirements of
§ 2244(b). See 140 S. Ct. at 1709–10. In Banister, the Court
held that Rule 59(e) motions to alter or amend a judgment
are not successive habeas petitions. Id. at 1702. In reaching
that conclusion, the Court distinguished Gonzalez and its
holding that a Rule 60(b) motion asserting a claim is a
habeas petition. Id. at 1709 (explaining that a Rule 60(b)
motion “counts as a second or successive habeas application
. . . so long as the motion ‘attacks the federal court’s
previous resolution of a claim on the merits’” (citations
omitted)).
The Court began with the history of Rule 59(e) and Rule
60(b) motions, explaining that “Rule 59(e) derives from a
common-law court’s plenary power to revise its judgment
during a single term of court, before anyone could appeal.”
Id. But Rule 60(b), in contrast,
codifies various writs used to seek relief from
a judgment at any time after the term’s
expiration—even after an appeal had (long
BALBUENA V. SULLIVAN 37
since) concluded. Those mechanisms did not
(as the term rule did) aid the trial court to get
its decision right in the first instance; rather
they served to collaterally attack its already
completed judgment.
Id. (emphasis added). The Court further explained that while
pre-AEDPA cases seldom denied Rule 59(e) motions for
raising repetitive claims, they regularly denied Rule 60(b)
motions on that basis. Id. This difference was because pre-
AEDPA “courts recognized Rule 60(b)—as contrasted to
Rule 59(e)—as threatening an already final judgment with
successive litigation.” Id.
In addition, the Court explained that “Rule 60(b) motions
can arise long after the denial of a prisoner’s initial
petition—depending on the reason given for relief, within
either a year or a more open-ended ‘reasonable time.’” Id.
at 1710 (quoting Fed. R. Civ. P. 60(c)(1)). The Court noted
that in Gonzalez the petitioner filed his Rule 60(b) motion
more than a year after his appeal from his initial petition
ended. Id. (citing Gonzalez, 545 U.S. at 527). But, as the
Court explained, “[g]iven that extended timespan, Rule
60(b) inevitably elicits motions that go beyond Rule 59(e)’s
mission of pointing out the alleged errors in the habeas
court’s decision.” Id. And the Court pointed out that “the
appeal of a Rule 60(b) denial is independent of the appeal of
the original petition,” and “does not bring up the underlying
judgment for review.” Id. (citation omitted).
Finally, the Court summarized why a motion to set aside
a judgment under Rule 60(b) motion, if it asserts claims, is a
successive petition, while a motion to set aside a judgment
under Rule 59(e) is not:
38 BALBUENA V. SULLIVAN
In short, a Rule 60(b) motion differs from a
Rule 59(e) motion in its remove from the
initial habeas proceeding. A Rule 60(b)
motion—often distant in time and scope and
always giving rise to a separate appeal—
attacks an already completed judgment. Its
availability threatens serial habeas litigation;
indeed, without rules suppressing abuse, a
prisoner could bring such a motion endlessly.
Id. None of these reasons for distinguishing Rule 59(e)
motions from Rule 60(b) motions—and concluding that
Rule 60(b) motions that assert claims are disguised habeas
petitions, while Rule 59(e) motions are not—is in any way
affected by or related to the timing of when a Rule 60(b)
motion is filed.
The Court’s analysis of Rule 60(b) motions as removed
from the initial habeas proceeding, collaterally attacking the
judgment, and threatening serial habeas litigation, applies
with equal force to Rule 60(b) motions filed during the
appeal of an initial habeas proceeding and to such motions
filed after the appeal is completed. Therefore, the Court’s
explication of Rule 60(b) motions in Banister undermines
Balbuena’s arguments to distinguish Gonzalez.
3.
Third, Balbuena does not cite, and we have not
identified, any case that distinguishes Gonzalez on the basis
Balbuena suggests: A Rule 60(b) motion, although a
disguised habeas petition, is not a second or successive
petition if it was filed during the appeal of an earlier petition.
To the contrary, the Seventh Circuit has rejected this
argument. See Phillips v. United States, 668 F.3d 433, 435
(7th Cir. 2012). In Phillips, while the petitioner’s appeal
BALBUENA V. SULLIVAN 39
from the denial of his § 2255 motion was pending, he filed a
Rule 60(b) motion for relief from the judgment. Id. at 434.
Applying Gonzalez, the court concluded that the Rule 60(b)
motion sought relief on the merits and was an application for
collateral review. Id. at 435. The court also concluded that
the Rule 60(b) motion was a second application for habeas
relief, stating that to hold otherwise “would drain most force
from the time-and-number limits in § 2244 and § 2255.”
Id. 12
Similarly, in Santarelli the Third Circuit distinguished
Gonzalez because the petitioner’s motion to file a second or
successive petition was not a Rule 60(b) motion and because
of “the inherent nature of Rule 60(b) motions.” 929 F.3d
at 105. The Third Circuit stated that its precedent was
consistent with the Seventh Circuit’s holding in Phillips that
a Rule 60(b) motion, addressed to the merits, is a second or
successive petition, even if filed while an appeal from an
initial petition is pending. Id. The court explained that under
its precedent a Rule 60(b) motion is a second or successive
petition: “[A] Rule 60(b) motion that raises a claim attacking
the underlying criminal judgment must be a second or
successive petition because, the judgment having become
final, the petitioner has expended the one full opportunity to
seek collateral review that AEDPA ensures.” Id. (alteration
in original) (quoting Blystone v. Horn, 664 F.3d 397, 413 (3d
Cir. 2011)). Therefore, although Balbuena argues that we
12
Because it had not been invoked, the court rejected any reliance
on Seventh Circuit Rule 57, which allows a district judge to request a
remand to “correct errors that affect[ed] the proceedings.” See Phillips,
668 F.3d at 436. The court explained the steps to invoke Rule 57, which
require the district court to indicate that it is inclined to grant the Rule
60(b) motion, and stated that “[o]nly this combination of steps renders
the judgment non-final and allows a modification while the appeal is
pending.” Id.
40 BALBUENA V. SULLIVAN
should follow the reasoning of Santarelli, as it turns out, the
Third Circuit’s application of Gonzalez does not support his
position that his Rule 60(b) motion was not a successive
petition.
We conclude that the district court correctly applied
Beaty and Gonzalez and denied Balbuena’s Rule 60(b)
motion as an unauthorized second or successive habeas
petition. In addition, we have identified no authority from
our sister circuits that supports Balbuena’s argument that his
Rule 60(b) motion, even if considered a disguised habeas
petition, was not a successive petition. Accordingly, we
affirm the district court’s order denying the motion.
V.
Applying the deferential standards of federal habeas
review, we conclude that the state court reasonably
concluded that Balbuena’s confession was voluntary, and we
affirm the district court’s denial of the habeas petition.
Because Balbuena’s Rule 60(b) motion sought to add a new
claim after the district court adjudicated his habeas petition
on the merits, we conclude that the district court correctly
denied the motion, and we affirm.
AFFIRMED.
W. FLETCHER, Circuit Judge, concurring in the result:
I agree with my colleagues that the state court did not
unreasonably conclude that Balbuena’s confession was
voluntary. I also agree that Beaty v. Schriro, 554 F.3d 780,
783 n.1 (9th Cir. 2009), requires us to hold that Balbuena’s
Rule 60(b) motion was a second or successive habeas
BALBUENA V. SULLIVAN 41
petition, even though it was filed while an appeal on his
initial habeas petition was awaiting adjudication in our court.
I write separately to register my disagreement with Beaty
and to urge the Supreme Court to recognize the circuit split
and to adopt the rule stated in Ching v. United States,
298 F.3d 174, 178 (2d Cir. 2002), and United States v.
Santarelli, 929 F.3d 95, 104–05 (3d Cir. 2019).
“AEDPA places strict limitations on the ability of a
petitioner held pursuant to a state judgment to file a second
or successive federal petition for writ of habeas corpus.”
Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017); see
28 U.S.C. § 2244(b); see also Goodrum v. Busby, 824 F.3d
1188, 1193 (9th Cir. 2016) (providing background). The
phrase “second or successive” is undefined by AEDPA. It
is a “term of art” and “does not simply refer to all [habeas]
applications filed second or successively in time.”
Magwood v. Patterson, 561 U.S. 320, 331–32 (2010)
(internal quotation marks, alterations, and citation omitted).
Over time, “the rule that emerged is that a petition will not
be deemed second or successive unless, at a minimum, an
earlier-filed petition has been finally adjudicated.”
Goodrum, 824 F.3d at 1194. The question before us is
whether an initial habeas petition has been “finally
adjudicated” when the petition still awaits adjudication on
appeal.
In Ching, the Second Circuit held that a habeas petition
still pending on appeal has not been finally adjudicated
within the meaning of the limitation on second or successive
petitions. The petitioner in Ching filed a motion under
28 U.S.C. § 2255, attacking his conviction in federal district
court. The district court denied the motion, and Ching
appealed. While his appeal was pending before the Second
Circuit (which eventually vacated and remanded the district
42 BALBUENA V. SULLIVAN
court’s denial), Ching filed a habeas petition under 28 U.S.C.
§ 2241 in district court. The district court treated the § 2241
petition as a motion under § 2255, concluded that it was
second or successive, and denied it. The Second Circuit
agreed that the § 2241 petition should have been treated as a
motion under § 2255 but disagreed that it was a second or
successive motion. The court held that “the district court
should [have] construe[d] the second § 2255 motion as a
motion to amend the pending § 2255 motion.” 298 F.3d
at 177. The court wrote:
We find that adjudication of Ching’s initial
motion was not yet complete at the time he
submitted his second § 2255 motion. The
denial of [his first motion] was still pending
on appeal before this Court and no final
decision had been reached with respect to the
merits of Ching’s claim.
Id. at 178; see also Grullon v. Ashcroft, 374 F.3d 137, 140
(2d Cir. 2004) (extending Ching’s holding to cover
successive petitions filed under § 2241); Whab v. United
States, 408 F.3d 116, 118–19 (2d Cir. 2005) (applying
Ching’s holding where the district court did not have the
earlier- and later-filed petitions before it simultaneously).
We followed Ching in Woods v. Carey, 525 F.3d 886
(9th Cir. 2008). Woods filed a pro se habeas petition under
28 U.S.C. § 2254 in federal district court. Before that
petition was denied, Woods filed another pro se habeas
petition in the district court under § 2254. The district court
dismissed Woods’s petition as second or successive. We
reversed, writing, “[W]e follow the persuasive reasoning of
the Second Circuit.” Id. at 890. We held that the district
court “should have construed Woods’s [second-in-time] pro
BALBUENA V. SULLIVAN 43
se habeas petition as a motion to amend his pending habeas
petition,” after which the district court would have had “the
discretion to decide whether the motion to amend should be
granted.” Id. (italicization omitted).
We reversed course in Beaty. Beaty filed a habeas
petition under § 2254 in federal district court, which denied
the petition. Beaty sought a certificate of appealability from
us. We denied a certificate of appealability on everything
except a claim as to the voluntariness of his confession; we
remanded that claim to the district court for an evidentiary
hearing. On remand, the district court denied the claim.
Beaty requested that the district court permit him to amend
his original habeas petition “to include a plethora of other
claims.” Beaty, 554 F.3d at 782. The district court denied
permission to amend, and Beaty appealed. While Beaty’s
second appeal was pending before us, Beaty sought to add
still more claims. We held Beaty’s additional claims were
second or successive.
In a footnote, we wrote that while we had “quoted
extensively from Ching” in Woods, the facts in Woods did
not pose the same question as in Ching. Id. at 783 n.1. The
question in Woods was whether a new petition was second
or successive when the first petition was still pending in the
district court. The question in Ching was whether a new
petition was second or successive when a denial of the first
petition had been appealed and that appeal was still pending
in the court of appeal. While not disagreeing with the result
we had reached in Woods, we disagreed with the holding of
Ching. We wrote, “Today, we decide that Beaty cannot use
Woods to amend his petition after the district court has ruled
and proceedings have begun in this court . . . .” Id.
The Sixth, Seventh, and Tenth Circuits have agreed with
our ruling in Beaty. See Moreland v. Robinson, 813 F.3d
44 BALBUENA V. SULLIVAN
315, 324 (6th Cir. 2016); Phillips v. United States, 668 F.3d
433, 435 (7th Cir. 2012); Ochoa v. Sirmons, 485 F.3d 538,
540 (10th Cir. 2007). Meanwhile the Third Circuit has
agreed with Ching, similarly concluding that adjudication is
final for the purposes of § 2244(b) only once an appeal has
been finally adjudicated. See Santarelli, 929 F.3d at 104
(holding that “a subsequent habeas petition is not ‘second or
successive’ under AEDPA when a petitioner files such a
petition prior to her exhaustion of appellate remedies with
respect to the denial of her initial habeas petition”)
(emphasis added).
We made a mistake in Beaty. First, as a matter of
ordinary language, it is hard to conclude that an initial
habeas petition has been “finally adjudicated” when, in fact,
it has not been. If a district court denies a habeas petition
and the petitioner appeals, there is no final adjudication until
the appeal has been finally adjudicated.
Second, as a practical matter, the rule followed by the
Second and Third Circuits in Ching and Santarelli will not
result in a flood of late and procedurally abusive claims.
Any new claim that is deemed an amendment to the original
petition must satisfy the demanding relation-back
requirement of Federal Rule of Civil Procedure 15(c)(2), as
interpreted by the Supreme Court in Mayle v. Felix, 545 U.S.
644 (2005).
Third, nothing in the decisions of the Supreme Court
compels our interpretation of “final adjudication” in Beaty.
As the Second Circuit observed in Ching, 298 F.3d at 178,
and as discussed by the Supreme Court in Magwood,
561 U.S. at 331–33, at least three cases decided by the
Supreme Court suggest that Ching and Santarelli got it right.
In the words of then-Judge Sotomayor, “These cases instruct
that a prior district court judgment dismissing a habeas
BALBUENA V. SULLIVAN 45
petition does not conclusively establish that there has been a
final adjudication of that claim.” Ching, 298 F.3d at 178.
In Stewart v. Martinez-Villareal, 523 U.S. 637, 642–44
(1998), the Supreme Court treated a later-filed habeas
petition as part of an earlier application where the later-filed
petition was premised on a newly ripened claim under Ford
v. Wainwright, 477 U.S. 399 (1986). The Ford claim had
been previously dismissed as premature by the district court.
In Panetti v. Quarterman, 551 U.S. 930, 937, 942–45 (2007),
the Court addressed a related but distinct circumstance
where a habeas petition raised a Ford claim that had not been
presented in an initial petition. The Court permitted the
second petition—even though the initial petition had been
adjudicated by the district court and Fifth Circuit Court of
Appeals, and a petition for certiorari had been denied by the
Supreme Court—because the Ford claim would have been
unripe had the petitioner sought to present it in his first
petition. In Slack v. McDaniel, 529 U.S. 473, 488 (2000),
the Court declined to find a habeas petition second or
successive where the district court had dismissed the first
petition for failure to exhaust state remedies and where the
new petition raised claims that had not been included in the
first petition.
Finally, neither Gonzalez v. Crosby, 545 U.S. 524
(2005), nor Banister v. Davis, 590 U.S. ___, 140 S. Ct. 1698
(2020), pose the barrier that today’s opinion suggests. In
Gonzalez, the Supreme Court considered whether a Rule
60(b) motion that adds a claim, such as Balbuena’s, is a
“‘habeas corpus application’ as the statute uses that term.”
Id. at 530 (quoting 28 U.S.C. § 2244(b)). The Court held
that if a Rule 60(b) motion advances one or more “claims,”
such as a new ground for relief, it is not a true Rule 60(b)
motion. Rather, it is “in substance” a habeas corpus
46 BALBUENA V. SULLIVAN
application within the meaning of § 2244(b). Id. at 531.
Accordingly, Gonzalez requires us to hold that Balbuena’s
Rule 60(b) motion is, in fact, a disguised habeas application.
The question in Banister was whether a Rule 59(e)
motion is a second or successive application within the
meaning of § 2244(b). The Court held that it is not. The
Court distinguished a Rule 59(e) motion from a Rule 60(b)
motion. It wrote, in language quoted by my colleagues,
supra p. 38:
In short, a Rule 60(b) motion differs from a
Rule 59(e) motion in its remove from the
initial habeas proceeding. A Rule 60(b)
motion—often distant in time and scope and
always giving rise to a separate appeal—
attacks an already completed judgment. Its
availability threatens serial habeas litigation;
indeed, without rules suppressing abuse, a
prisoner could bring such a motion endlessly.
Banister, 590 U.S ___, 140 S. Ct. at 1711. Just so. For that
reason, and as the Court explained in Gonzalez, a Rule 60(b)
motion that seeks to add a claim to a previously filed habeas
application is not, in fact, a Rule 60(b) motion. It is, instead,
a disguised habeas application subject to the bar on “second
or successive” applications. Thus, Banister distinguishes
between Rule 59(e) and Rule 60(b) motions based on the
analysis in Gonzalez. Banister otherwise has little relevance
for Balbuena’s case.
Ching, Whab, and Santarelli are consistent with
Gonzalez and Banister. Gonzalez answers the question
whether a Rule 60(b) motion seeking to add a claim to a
habeas application is a true Rule 60(b) motion or is a
disguised habeas application. Under Gonzalez, such a
BALBUENA V. SULLIVAN 47
motion clearly is a habeas application. But Gonzalez does
not answer the question whether it is a “second or
successive” habeas application under § 2244(b). See
Phillips, 668 F.3d at 435 (“Under Gonzalez, the motion was
an ‘application’ for collateral relief. But was it a second
application?”). That question is answered by Ching, Whab,
and Santarelli. In my view, it is their answer to that
question—not ours in Beaty—that is correct.
I write separately to encourage the Supreme Court to
resolve the conflict in the circuits. I am optimistic, if the
Court takes this or a similar case, that it will agree with the
Second and Third Circuits rather than ours.