ALEXANDER BALBUENA, Petitioner-Appellant, v. WILLIAM JOE SULLIVAN, Warden; ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA, Respondents-Appellees.
No. 12-16414; No. 18-15432
United States Court of Appeals for the Ninth Circuit
Filed August 17, 2020
D.C. No. 3:11-cv-00228-RS; Argued and Submitted November 12, 2019 San Francisco, California
Before: William A. Fletcher, Mark J. Bennett, and Bridget S. Bade, Circuit Judges.
Opinion by Judge Bade;
Concurrence by Judge W. Fletcher
SUMMARY*
Habeas Corpus
The panel affirmed 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
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 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 wrote that the totality of the circumstances establish that Balbuena was advisеd of his Miranda rights. The panel noted that the Supreme Court has never found Miranda warnings invalid on the basis that the warnings advised a defendant of the right to an attorney before questioning but not of a right to have an attorney present during questioning. 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 officers 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
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
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.
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
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
Police detectives investigating the murder scene found shell casings on the street for .32-сaliber 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
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 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 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 arе 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 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 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, and that Balbuena told hеr 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
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
Balbuena returned to the district court and filed a Rule 60(b) motion for relief
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
III.
A.
Under
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 lаw, 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.”
Under the first clause of
Under
When applying thesе 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
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 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 details of the interrogation include its length and location, and whether the suspect was advised of his Miranda rights. Id. at 693–94.
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.2d 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 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,
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 аs 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 determination that he was sixteen years old was an unreasonable determination of the facts. See
Conceding that “whether he was 15 or 16 at thе 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) was not overly harsh or threatening, and [Balbuena‘s] demeanor throughout was relaxed and disрlayed 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.
Second, although Balbuena did not assert a separate Miranda claim in the state court, we consider the adequacy of the warnings he received as another factor in the voluntariness determination. See Withrow, 507 U.S. at 693–94. Balbuena argues that Miranda warnings must advise a defendant “that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” See Miranda, 384 U.S. at 471. Balbuena compares the Miranda warnings he received to those given in United States v. Noti, 731 F.2d 610, 615 (9th Cir. 1984), and United States v. Bland, 908 F.2d 471, 473–74 (9th Cir. 1990), and argues that the warnings were deficient because even though the detectives advised him that he had a right to an attorney before questioning, they did not advise him that he had the right to have an attorney during questioning.
Balbuena correctly notes that this court has found Miranda warnings invalid when they do not explicitly advise a defendant of the right to counsel during questioning. See Bland, 908 F.2d at 474 (finding Miranda warning inadequate when it failed to advise the petitioner of the right to counsel during questioning); see also Noti, 731 F.2d at 615 (invalidating Miranda warning that advised the defendant he had the “the right to the services of an attorney before questioning“). But the Supreme Court has never found Miranda warnings invalid on this basis. See Duckworth v. Eagan, 492 U.S. 195, 202 (1989) (stating that the Court has “never insisted that Miranda warnings be given in the exact form described in that decision“); see also Florida v. Powell, 559 U.S. 50, 60 (2010) (stating that the “Court has not dictated the words in which the essential information [of Miranda] must be conveyed“). Therefore, this court‘s decisions in Noti and Bland are not “clеarly established Federal law” for purposes of review under AEDPA. See Williams, 529 U.S. at 412 (explaining that “clearly established Federal law” under
Furthermore, in Powell, which was decided after our decisions in Noti and Bland, the Supreme Court rejected the argument Balbuena asserts here—that his 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
The Court explained that when considering the adequacy of Miranda warnings, a court must determine whether the warnings reasonably conveyed the suspect‘s rights. Id. at 60. 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.
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.” For Balbuena to conclude that his right to an attorney did not apply during the interview, he would have to imagine the very scenario the Court dismissed as unlikely in Powell. See id. Therefore, we conclude that the state court‘s determination that Balbuena was advised of his Miranda rights was not unreasonable.
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. 872 F.3d 908, 923–24 (9th Cir. 2017). In Rodriguez, the defendant was fourteen
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 standard to determinе 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-threatеning. 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 interview and Balbuena was not subjected to
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 totality of the circumstances establish that Balbuena was advised of his Miranda rights. 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.
IV.
We next address whether the district court erred by denying Balbuena‘s
A.
AEDPA generally bars second or successive habeas petitions.
“If a second or successive petition presents new claims that were not previously raised, those claims must be dismissed as well . . . .” Id. (citing
Before filing a second or successive petition, a petitioner must file a motion in the aрpropriate court of appeals and obtain an order authorizing the district court to consider the petition. See
Balbuena argues that the district court mischaracterized his
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 nоt file a successive petition, “when he merely asserts that a previous ruling which 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
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 adjudiсated” 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
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
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 undеr
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
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
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 petitiоn filed while that appeal is pending is not a second or successive petition under
Moreover, these cases are distinguishable because they do not address
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.8 408 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
C.
Under
To answer this question, the Court first considered “whether a
Furthermore, a
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
But if no claim is presented, then a
Balbuena distinguishes Gonzalez by characterizing it as holding that “an applicant‘s
D.
But does our conclusion that Balbuena‘s
1.
First, the petitioner in Gonzalez filed his
2.
Second, the Supreme Court‘s recent decision in Banister further supports the conclusion that
The Court began with the history of
codifies various writs used to seek relief from a judgment at any time after the term‘s expiration—even after an appeal had (long 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
In addition, the Court explained that ”
Finally, the Court summarized why a motion to set aside a judgment under
In short, a
Rule 60(b) motion differs from aRule 59(e) motion in its remove from the initial habeas proceeding. ARule 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
The Court‘s analysis of
3.
Third, Balbuena does not cite, and we have not identified, any case that distinguishes Gonzalez on the basis Balbuena suggests: A
Similarly, in Santarelli the Third Circuit distinguished Gonzalez because the petitioner‘s motion to file a second or successive petition was not a
We conclude that the district court correctly applied Beaty and Gonzalez and denied Balbuena‘s
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
AFFIRMED.
BALBUENA V. SULLIVAN
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
“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
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
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
We followed Ching in Woods v. Carey, 525 F.3d 886 (9th Cir. 2008). Woods filed a pro se habeas petition under
We reversed course in Beaty. Beaty filed a habeas petition under
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 reaсhed 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 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
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
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 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. 504, 140 S. Ct. 1698 (2020), pose the barrier that today‘s opinion suggests. In Gonzalez, the Supreme Court considered whether a
The question in Banister was whether a
In short, a
Rule 60(b) motion differs from aRule 59(e) motion in its remove from the initial habeas proceeding. ARule 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. at 1711. Just so. For that reason, and as the Court explained in Gonzalez, a
Ching, Whab, and Santarelli are consistent with Gonzalez and Banister. Gonzalez answers the question whether a
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.