Opposition Brief — Alexander Balbuena, Petitioner v. Brian Cates, Acting Warden

No. 20-1207

In the Supreme Court of the United States

ALEXANDER BALBUENA,

Petitioner,

v.

BRIAN CATES, ACTING WARDEN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant

Attorney General

JEFFREY M. LAURENCE

Senior Assistant

Attorney General

May 3, 2021

JOSHUA PATASHNIK*

Deputy Solicitor General

PEGGY S. RUFFRA

Supervising Deputy

Attorney General

JILL M. THAYER

Deputy Attorney General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue,

Suite 11000

San Francisco, CA 94102-7004

(415) 510-3896

Josh.Patashnik@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

Whether a motion for relief from a final judgment

under Federal Rule of Civil Procedure 60(b) that seeks

to present a new claim for federal habeas relief constitutes a “second or successive” petition, 28 U.S.C.

§ 2244(b), if it is filed in district court when an appeal

from the district court’s denial of the initial habeas petition is pending in the court of appeals.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 7

Conclusion.................................................................. 23

iii

TABLE OF AUTHORITIES

Page

CASES

Banister v. Davis

140 S. Ct. 1698 (2020) .................................. passim

Beaty v. Schriro

554 F.3d 780 (9th Cir. 2009) .............................. 6, 7

Blair v. Armontrout

976 F.2d 1130 (8th Cir. 1992) .............................. 21

Bradley v. School Bd. of City of

Richmond

416 U.S. 696 (1974) .............................................. 20

Carey v. Saffold

536 U.S. 214 (2002) .............................................. 19

Ching v. United States

298 F.3d 174 (2d Cir. 2002).......................... passim

Clay v. United States

537 U.S. 522 (2003) ........................................ 19, 20

Florida v. Powell

559 U.S. 50 (2010) ................................................ 22

Ford v. Wainwright

477 U.S. 399 (1986) .............................................. 19

Fuller v. United States

815 F.3d 112 (2d Cir. 2016).................................. 15

iv

TABLE OF AUTHORITIES

(continued)

Page

Garcia v. Superintendent of Great

Meadow Corr. Facility

841 F.3d 581 (2d Cir. 2016).................................. 15

Gonzalez v. Crosby

545 U.S. 524 (2005) ...................................... passim

Harrington v. Richter

562 U.S. 86 (2011) ................................................ 22

Hunt v. Nuth

57 F.3d 1327 (4th Cir. 1995) ................................ 21

Jimenez v. Quarterman

555 U.S. 113 (2009) .............................................. 19

Johnson v. United States

196 F.3d 802 (7th Cir. 1999) ................................ 21

Johnson v. Williams

568 U.S. 289 (2013) .............................................. 22

Miller v. French

530 U.S. 327 (2000) .............................................. 20

Miranda v. Arizona

384 U.S. 436 (1966) ...................................... passim

Moreland v. Robinson

813 F.3d 315 (6th Cir. 2016) ............................ 8, 20

Ochoa v. Sirmons

485 F.3d 538 (10th Cir. 2007) .......................... 9, 11

v

TABLE OF AUTHORITIES

(continued)

Page

Panetti v. Quarterman

551 U.S. 930 (2007) ........................................ 15, 19

Patchak v. Zinke

138 S. Ct. 897 (2018) ............................................ 20

People v. Balbuena

No. A122043, 2010 WL 1783558

(Cal. App. May 5, 2010)............................ 1, 3, 4, 22

People v. Franklin

63 Cal. 4th 261 (2016) ............................................ 5

Phillips v. United States

668 F.3d 433 (7th Cir. 2012) ............................ 8, 10

Plaut v. Spendthrift Farm, Inc.

514 U.S. 211 (1995) .............................................. 20

Slack v. McDaniel

529 U.S. 473 (2000) ........................................ 15, 19

Stewart v. Martinez-Villareal

523 U.S. 637 (1998) .............................................. 19

Teague v. Lane

489 U.S. 288 (1989) .............................................. 20

United States v. Santarelli

929 F.3d 95 (3d Cir. 2019)............................ passim

Whab v. United States

408 F.3d 116 (2d Cir. 2005).................. 6, 13, 14, 15

vi

TABLE OF AUTHORITIES

(continued)

Page

Williams v. Norris

461 F.3d 999 (8th Cir. 2006) .................................. 8

STATUTES

18 U.S.C.

§ 3006A(a)(2) ........................................................ 21

28 U.S.C.

§ 1291 .................................................................... 20

§ 2244 ............................................................ 6, 8, 18

§ 2244(b) ....................................................... passim

§ 2244(b)(3) ....................................................... 9, 12

§ 2253 .................................................................... 18

§ 2254(d)(1) ........................................................... 22

Cal. Penal Code

§ 3051(b)(3) ............................................................. 4

COURT RULES

Federal Rules of Appellate Procedure

Rule 12.1(b) ............................................................ 5

Federal Rules of Civil Procedure

Rule 15 .................................................................... 9

Rule 59(e).................................................. 16, 17, 20

Rule 60(b) ..................................................... passim

1

STATEMENT

1. In January 2006, a group of assailants shot and

killed Jose Segura while he was sitting in his car with

Oralia Giron and their two children. Pet. App. 6a-7a.

Giron later testified that the man standing nearest to

Segura said that the shooting was revenge for the

murder of Luis Ochoa, also known as “Gizmo,” who

had been shot and killed the previous day. Id. at 6a7a & n.1; see People v. Balbuena, No. A122043, 2010

WL 1783558, at *2 (Cal. App. May 5, 2010).

At the scene of the murder, police found shell casings for .32-caliber and 9-millimeter handguns. Pet.

App. 7a. They obtained a search warrant for a nearby

house owned by Juan Herrera; after searching the

house they recovered a handgun and ammunition. Id.

Kristina Lawson, who rented a room in the house, told

officers that she had seen petitioner Alexander Balbuena and Julius Stinson with guns just before the

shooting. Id. She heard gunshots, saw Balbuena and

Stinson running toward the house, and saw Balbuena

enter the house, apparently trying to hide a gun under

a couch. Id. She also told officers that, later on the

day of the shooting, Balbuena had told her that he shot

Segura in the head. Id.

After obtaining a warrant, the police arrested Balbuena at his apartment at around 2:00 a.m. Pet. App.

8a. They took him to a police station, where two detectives sought to question him about Segura’s murder. Id. at 8a-9a. 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

2

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?

Pet. App. 9a (second alteration in original). Balbuena

responded: “Yup. Yup.” Id.

Balbuena initially denied being at the scene of the

murder. Pet. App. 9a. The detectives then told Balbuena (falsely) that they had already talked to Stinson, who had placed Balbuena at the scene. Id. The

detectives told Balbuena, “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.” Id. The detectives suggested that Balbuena might have acted out of anger

that his friend Gizmo had been killed, or that Stinson

might have forced Balbuena to kill Segura. Id. at 10a.

Balbuena acknowledged being at the scene of the

murder, but denied having a gun. Pet. App. 10a. The

detectives told Balbuena that witnesses had seen him

shooting a gun at the scene; they asked Balbuena what

kind of gun he had, because “only one of them hit

somebody . . . so it’s important which one you had.” Id.

(alterations omitted). Balbuena then admitted having

a .32-caliber handgun, seeing two people in the car,

and shooting three or four rounds at the car’s front

window. Id. After the detectives suggested Balbuena

might receive more lenient treatment if he showed remorse, he told them that Herrera had given him the

gun and had instructed him to shoot Segura in retaliation for the murder of Gizmo. Id. at 11a.

3

2. Prosecutors charged Balbuena with first-degree

murder, attempted murder, and street terrorism. Pet.

App. 11a. Before trial, Balbuena moved to suppress

his confession as involuntary. Id. The trial court denied the motion. Id. A jury convicted Balbuena on all

counts and the trial court sentenced him to 82 years to

life in prison. Id.

On direct appeal, Balbuena argued (among other

things) that his confession should have been excluded

because it was coerced and involuntary. Pet. App. 11a.

The court of appeal rejected that argument. Balbuena, 2010 WL 1783558, at *7 (Kline, P.J.). It reasoned that while there were “places in the interrogation where the detectives crossed the line” by

appearing to offer Balbuena “leniency in exchange for

honesty,” the key question for purposes of Balbuena’s

coercion claim was whether, “given all the circumstances, the promise was a motivating factor in the

giving of the statement.” Id. at *14. The court concluded that it was not. Balbuena’s “critical admissions”—including “that he was in front of the car, that

he had the .32 caliber gun, and that he had shot three

or four rounds at the front window of the car”—were

made “before improper tactics were employed.” Id.

And the “totality of the circumstances” confirmed that

Balbuena’s “crucial admissions were voluntary and

not coerced.” Id. at *15. “Having reviewed the videotape of [the] confession,” the court “agree[d] with the

trial court’s commendably thorough and detailed” conclusion that the interview occurred in “a non-threatening atmosphere for a police interrogation.” Id.

The court of appeal further held that “to the extent

any portions of appellant’s confession should have

been suppressed as induced by improper interrogation

tactics, the error was harmless beyond a reasonable

4

doubt.” Balbuena, 2010 WL 1783558, at *15. The

other evidence against Balbuena was “very strong,”

particularly Lawson’s statements to the police that

Balbuena had confessed to shooting Segura and that

she saw Balbuena running back to the house immediately after the shooting to hide a gun. Id.

Balbuena did not raise any claim that the police

failed to properly advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The court of

appeal observed that Balbuena “was advised of his Miranda rights and waived them.” Balbuena, 2010 WL

1783558, at *5.

The court reduced Balbuena’s sentence to 72 years

to life because two sentencing enhancements had not

properly been submitted to the jury, but affirmed his

conviction and sentence in all other respects. Pet.

App. 12a; see Balbuena, 2010 WL 1783558, at *27. 1

The California Supreme Court denied review. Pet.

App. 12a.

3. In January 2011, Balbuena filed a habeas petition in federal district court. Pet. App. 12a. Among

other claims, he asserted that the state court had unreasonably rejected his claim that his confession

should have been excluded as involuntary in violation

of the Due Process Clause. Id. In May 2012, the district court denied his petition, rejecting that claim on

the merits. Id.; see id. at 66a-85a. It also denied a

certificate of appealability. Id. at 84a. The Ninth Circuit granted a certificate of appealability limited to the

due process claim and appointed counsel to represent

Balbuena. Id. at 12a-13a.

1 Under current law, Balbuena will be eligible for “youth offender” parole consideration beginning in his 25th year of incarceration. See Cal. Penal Code § 3051(b)(3); C.A. SER 10-11.

5

In August 2013, Balbuena asked the Ninth Circuit

to stay his appeal and remand the case to the district

court to allow him to “file an amended petition” raising

a Miranda claim. Pet. App. 13a. He “acknowledged”

that if the court of appeals “denied his motion he

would be ‘left to file a new successive habeas petition’”

subject to the restrictions of 28 U.S.C. § 2244(b). Id.

The court of appeals remanded the case to the district

court, see Fed. R. App. P. 12.1(b), for it to consider Balbuena’s motion for relief from a final judgment under

Federal Rule of Civil Procedure 60(b). Pet. App. 13a.

The district court initially denied the Rule 60(b)

motion without prejudice because Balbuena had not

exhausted the new claim in state court. Pet. App. 13a.

After further litigation in state court, Balbuena filed a

renewed motion, and in February 2018 the district

court denied that motion as an unauthorized second or

successive habeas petition. Id. at 13a-14a; see id. at

53a-60a. 2 “‘[A]lthough labeled a Rule 60(b) motion,’”

the court concluded that Balbuena’s filing was in

“‘substance a successive habeas petition and should be

treated accordingly.” Id. at 56a (quoting Gonzalez v.

Crosby, 545 U.S. 524, 531 (2005)). It explained that

“[c]ase law supports this conclusion.” Id. at 57a-59a &

2 On state collateral review, Balbuena raised his Miranda claim

and argued that his prior attorneys’ failure to raise that claim at

trial and on direct appeal constituted ineffective assistance of

counsel. See C.A. SER 3; C.A. ER 51-62. He also raised a separate Eighth Amendment claim regarding the length of his sentence as a juvenile offender. C.A. SER 3. The state court of appeal denied relief on all his claims, except that it ordered that

Balbuena be permitted to make a record of mitigating factors pertaining to his youth for use at a future parole hearing, as required

by state law. See id. at 1-11 & 3 n.3; C.A. ER 49-50; People v.

Franklin, 63 Cal. 4th 261, 283-284 (2016). The California Supreme Court denied review. C.A. ER 48.

6

nn.2, 3 (discussing, inter alia, Beaty v. Schriro, 554

F.3d 780 (9th Cir. 2009)).

The court of appeals affirmed both the district

court’s denial of Balbuena’s initial habeas petition and

its denial of his Rule 60(b) motion as an unauthorized

second or successive petition. Pet. App. 1a-44a. As to

the merits of Balbuena’s coerced-confession claim, the

court of appeals reasoned that under “AEDPA’s highly

deferential standard . . . the state court’s determination that Balbuena’s confession was voluntary was not

unreasonable.” Id. at 27a; see id. at 14a-27a.

As to the Rule 60(b) motion, the court explained

that circuit precedent controlled the analysis. Pet.

App. 30a-33a. “[L]ike the petitioner in Beaty, Balbuena sought to add a new claim after the district

court denied his petition and he appealed that denial,”

so the restrictions on second or successive petitions set

forth in Section 2244 applied. Id. at 32a-33a; see

Beaty, 554 F.3d at 782-783 & n.1. The court reasoned

that out-of-circuit authorities invoked by Balbuena

were “distinguishable” from Beaty because they “do

not address Rule 60(b) motions or apply Gonzalez,”

Pet. App. 33a, and they arose in different procedural

postures, see id. at 33a-34a (discussing Ching v.

United States, 298 F.3d 174 (2d Cir. 2002), Whab v.

United States, 408 F.3d 116 (2d Cir. 2005), and United

States v. Santarelli, 929 F.3d 95 (3d Cir. 2019)).

The court of appeals also explained that this

Court’s precedent supported treating the Rule 60(b)

motion as “a disguised habeas petition” because it

“‘seeks to add a new ground for relief’”—i.e., the new

Miranda claim. Pet. App. 38a (quoting Gonzalez, 545

U.S. at 532); see id. at 35a-38a. And Banister v. Davis,

140 S. Ct. 1698 (2020), “further supports” that conclusion. Pet. App. 40a; see id. at 39a-44a. Banister’s

7

“analysis of Rule 60(b) motions as removed from the

initial habeas proceeding, collaterally attacking the

judgment, and threatening serial habeas petition, applies with equal force to Rule 60(b) motions filed during the appeal of an initial habeas proceeding.” Id. at

42a.

Judge Fletcher concurred in the result. Pet. App.

45a-52a. He agreed that Beaty “require[d]” the panel

“to hold that Balbuena’s Rule 60(b) motion was a second or successive habeas petition.” Id. at 45a. But he

wrote “separately to register [his] disagreement with

Beaty and to urge” this Court to grant review. Id.

ARGUMENT

Nearly two years after the district court entered a

final judgment denying his initial habeas petition,

Balbuena filed a Rule 60(b) motion advancing a new

constitutional claim that he had never previously

raised in state or federal court. The lower courts held

that Balbuena’s motion was a “second or successive”

habeas petition under 28 U.S.C. § 2244(b). There is no

circuit conflict on the question whether a Rule 60(b)

motion like Balbuena’s is a second or successive petition. And the decision below is consistent with this

Court’s precedent. See Banister v. Davis, 140 S. Ct.

1698, 1708-1711 (2020); Gonzalez v. Crosby, 545 U.S.

524, 531-532 (2005).

1. Balbuena urges the Court to grant review to resolve an “intractable split in the courts of appeals,” Pet.

13, but that mischaracterizes the state of the law on

the central issue in this case. Every decision invoked

by Balbuena that addressed a Rule 60(b) motion presenting a new claim reached the same result as the

decision below. The two circuits that he describes as

comprising the short side of an “active 5-2 circuit split”

8

(id.) did not consider the application of Section 2244 to

a Rule 60(b) motion; and it is not at all clear that those

courts would reach a different result from the decision

below on the facts presented here.

a. As Balbuena acknowledges, the decision below

“align[s]” with the approach taken by other courts in

the context of Rule 60(b) motions. Pet. 15; see id. at

13-16. The Ninth Circuit concluded that “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).” Pet. App. 37a. It next reviewed this

Court’s precedent and held that this conclusion “applies with equal force to Rule 60(b) motions filed during the appeal of an initial habeas proceeding,” like

this one, “and to such motions filed after the appeal is

completed.” Id. at 42a.

That holding accords with decisions from the Sixth,

Seventh, and Eighth Circuits. In Moreland v. Robinson, 813 F.3d 315, 325 (6th Cir. 2016), the court held

that a “Rule 60(b) motion or motion to amend that

seeks to raise habeas claims is a second or successive

habeas petition when that motion is filed after the petitioner has appealed the district court’s denial of his

original habeas petition[.]” In Phillips v. United

States, 668 F.3d 433, 436 (7th Cir. 2012), the Seventh

Circuit agreed that a “Rule 60(b) motion [filed] while

the appeal was pending” constitutes “a new application for collateral relief,” which may not be granted

unless the petitioner satisfies the requirements for filing a second or successive petition. And in Williams

v. Norris, 461 F.3d 999, 1002-1004 (8th Cir. 2006), the

Eighth Circuit rejected the argument that a Rule 60(b)

motion seeking to add a new claim “is not a successive

9

habeas if it occurs after the petition is denied, but before the denial is affirmed on appeal.” 3

b. Balbuena asserts that decisions of the Second

and Third Circuit are in conflict with the decision below. Pet. 16-21. But he substantially overstates the

degree of tension between the lower courts in this

area—and his assertion that there is a “stark conflict”

(id. at 21) on the particular question presented by this

case is incorrect.

i. In United States v. Santarelli, 929 F.3d 95, 99

(3d Cir. 2019), a habeas applicant filed in the district

court a “[m]otion to [a]mend” seeking to add new

claims while her initial petition “was still pending before” that court. The district court denied that motion

on the ground that it did not satisfy the “relation back”

standard of Federal Rule of Civil Procedure 15, and

then denied the initial habeas petition on the merits.

Id. at 99-100. The applicant sought review in the court

of appeals; while that appeal was pending, she filed in

the court of appeals a motion for leave to file a second

or successive petition. Id. at 100, 103; see 28 U.S.C.

§ 2244(b)(3).

With respect to the appeal of the initial petition,

the court of appeals held that the district court erred

in denying the motion to amend under Rule 15, remanding the case to the district court on that basis.

Santarelli, 929 F.3d at 101, 103. The court of appeals

then concluded that the motion for leave to file a second or successive petition was unnecessary because a

second habeas petition filed in district court while the

3 Although the case did not arise from a Rule 60(b) motion, the

Tenth Circuit’s discussion in Ochoa v. Sirmons, 485 F.3d 538,

539-541 (10th Cir. 2007) ( per curiam), also supports the reasoning of the decision below.

10

appeal of the initial petition was pending was not (yet)

“‘second or successive’ under AEDPA.” Id. at 104. The

court thus “transfer[red]” that motion to the district

court. Id. at 107.

But the court of appeals explained that only in narrow circumstances could the district court actually

consider the merits of such a subsequent filing. Santarelli, 929 F.3d at 105-106. The district court would

“lack[] jurisdiction to consider” it while the appeal of

the denial of the initial petition was pending because

the “filing of a notice of appeal . . . divests the district

court” of jurisdiction. Id. at 106. For that reason, the

subsequent filing “should remain stayed” in district

court “pending the resolution of the appeal with respect to the initial habeas petition.” Id. “In the event

that a petitioner exhausts her appellate remedies to

no avail” with respect to the initial petition, the district court “should refer” the subsequent filing “to the

court of appeals as a ‘second or successive’ habeas petition” at that point. Id. Only if the court of appeals

“vacates or reverses, in whole or in part, the district

court’s denial of the initial habeas petition and remands the matter”—as the Third Circuit did in Santarelli—would the district court “be vested with jurisdiction to consider” the subsequent filing. Id.

Importantly, the Third Circuit viewed its precedent as “generally consistent” with decisions that Balbuena acknowledges are aligned with the decision below. Santarelli, 929 F.3d at 105; see Pet. 15. The court

distinguished the circumstances of the case before it

from those involving Rule 60(b) motions. Santarelli,

929 F.3d at 105 (citing Phillips, 668 F.3d at 435). And

it explained that its approach would not “‘undermine

the policy against piecemeal litigation embodied in

11

§ 2244(b),’” id. (quoting Ochoa 485 F.3d at 541), because of its guidance that district courts stay the subsequent filings pending resolution of the initial appeal

and then treat them as a second or successive petitions

if the initial appeal does not succeed, id. at 105-106.

It is thus not clear that the result in Balbuena’s

case would have been different had it been litigated in

the Third Circuit instead of the Ninth Circuit. See Pet.

App. 33a-35a. Unlike Santarelli, Balbuena’s case involves a Rule 60(b) motion. See 929 F.3d at 105. It

appears likely that the Third Circuit would have

treated that motion as a “second or successive” petition based on Gonzalez and “the inherent nature of

Rule 60(b) motions.” Id. 4 And even if the filing had

been allowed, any proceedings in the district court

would have been “stayed pending the resolution” of the

appeal of the initial petition, id. at 106; after that appeal was unsuccessful (see Pet. App. 14a-27a), the district court would have been obligated to treat the

pending filing as a second or successive petition under

AEDPA, see Santarelli, 929 F.3d at 106.

ii. The Second Circuit decisions Balbuena invokes

(Pet. 16-18) arose in different procedural settings as

well—and they predate this Court’s decisions in Gonzalez and Banister, which heavily informed the Ninth

Circuit’s analysis here.

4 Balbuena contends that “[t]he Third Circuit considered Gonzalez in deciding Santarelli but nonetheless rejected the interpretation adopted by” the decision below. Pet. 22. But Santarelli

distinguished Gonzalez on the ground that it involved a Rule

60(b) motion, and “Santarelli’s motion to file [a] subsequent petition is not such a motion.” 929 F.3d at 105 (capitalization omitted). That suggests the court envisioned that the result would be

different in a case involving a Rule 60(b) motion.

12

In Ching v. United States, 298 F.3d 174 (2d Cir.

2002), a habeas applicant sought to file a second petition in the district court while his appeal of the district

court’s denial of the initial petition was pending. 298

F.3d at 175-176. The court of appeals ultimately

granted relief in that appeal on unrelated procedural

grounds, vacating the district court’s denial and remanding for further consideration. Id. The district

court nonetheless held that the subsequent petition

was second or successive and transferred it to the

court of appeals for further consideration. Id. at 176;

see 28 U.S.C. § 2244(b)(3).

The court of appeals then held that the subsequent

filing was not a second or successive petition because,

at the time it was filed, the district court’s denial of

the initial petition was “still pending on appeal” and

thus “no final decision had been reached.” Ching, 298

F.3d at 178. The court of appeals explained that by

the time the district court considered the subsequent

filing, “the district court had pending before it” the initial petition as well, because the court of appeals had

vacated the district court’s initial denial of that petition and remanded. Id. “Under these facts,” the Second Circuit could not “say that adjudication of the initial [petition was] complete when Ching filed his

[subsequent] petition.” Id. at 178. The district court

“therefore erred in treating Ching’s” subsequent filing

as a “second or successive” petition instead of as a motion to amend his initial petition. Id. at 178-179.

Like the Third Circuit in Santarelli, the Second

Circuit emphasized that the “filing of the notice of appeal divested the district court of jurisdiction over” the

original petition, and “[t]he district court could not

rule on any motion affecting an aspect of the case” that

13

was on appeal—including the motion to amend the initial petition—“while that appeal was pending.”

Ching, 298 F.3d at 180 n.5. If the court of appeals had

“affirmed the district court’s denial” of the initial petition (as the Ninth Circuit did here with respect to Balbuena’s initial petition), “Ching would have been foreclosed from bringing [his] additional claims unless he

satisfied the requirements applicable to second or successive” petitions. Id. Only because the court of appeals “vacated the [district court’s] original dismissal”

could Ching proceed with his motion to amend. Id.

The Second Circuit’s later decision in Whab v.

United States, 408 F.3d 116 (2d Cir. 2005), arose in a

similar posture. The district court denied Whab’s initial habeas petition and he sought a certificate of appealability in the court of appeals. Id. at 118. Separately, he filed a motion in the court of appeals for

leave to file a second or successive petition. Id. While

that motion was pending, the court of appeals denied

a certificate of appealability. Id. at 119. Relying on

Ching, the court held that because the initial appeal

was still pending on the date of the second filing,

Whab’s attempted subsequent filing was “not subject

to the ‘second or successive’ petition rule.” Id. But

because the initial petition was not remanded to the

district court, the court of appeals 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,” as it had done in Ching. Id. Instead, the

court of appeals “transfer[red]” the filing “to the district court for whatever further action the district

court finds appropriate.” Id.

In dicta, Whab then addressed “whether our transfer to the district court is futile” in light of its denial of

the certificate of appealability with respect to the first

14

petition. 408 F.3d at 120. “It would be a useless gesture if, upon receipt, the district court would determine that the adjudication of the initial petition has

now become final, with the consequence that the subsequent petition has become ‘second or successive[.]’”

Id. But the court thought the transfer would not be

futile, “for two reasons.” Id. First, the adjudication of

the initial petition “will not be final until petitioner’s

opportunity to seek review in the Supreme Court has

expired.” Id. Second, in the court’s view, “the proper

reference point for determining whether a petition is

‘second or successive’ is the moment of filing.” Id.

Although Ching and Whab appear to reflect a

somewhat different analytical approach than most

other circuits take, neither case establishes a “stark

conflict” with the decision below warranting this

Court’s review. Pet. 21. Unlike this case, neither

Ching nor Whab involved a Rule 60(b) motion. If confronted with the issue presented here, the Second Circuit could (and should) determine that this Court’s

precedent requires a different analysis in cases involving Rule 60(b) motions. Cf. Santarelli, 929 F.3d at 105;

Pet. App. 33a. And even if the Second Circuit allowed

a motion like Balbuena’s to be filed in district court, it

is not clear whether the district court could reach the

new claim where (as here) the court of appeals has affirmed the denial of the initial petition. See Ching,

298 F.3d at 180 n.5.

Moreover, both Ching and Whab were decided before this Court’s decisions in Gonzalez and Banister—

which powerfully support the consensus view of the

Sixth, Seventh, Eighth, and Ninth Circuits that a Rule

60(b) motion like Balbuena’s qualifies as a second or

successive petition under AEDPA. See infra pp. 16-17.

If it were to confront the question in the context of a

15

Rule 60(b) motion and in light of Gonzalez and Banister, the Second Circuit could well opt to align itself

with that consensus approach and treat the subsequent filing as a second or successive petition. 5

2. The decision below is consistent with this

Court’s precedent construing AEDPA’s restrictions on

second or successive petitions.

a. AEDPA sharply limits federal courts’ review of

“second or successive” habeas petitions. 28 U.S.C.

§ 2244(b). “The phrase ‘second or successive application’ . . . is a ‘term of art,’ which ‘is not self-defining.’”

Banister, 140 S. Ct. at 1705 (quoting Slack v. McDaniel, 529 U.S. 473, 486 (2000)). To determine whether

a filing qualifies as a second or successive petition,

courts look to both “historical habeas doctrine and

practice” and “AEDPA’s own purposes.” Id. at 17051706. Those purposes include Congress’s desire to

“‘conserve judicial resources, reduce piecemeal litigation,’ and ‘lend finality to state court judgments within

a reasonable time.’” Id. at 1706 (alterations omitted)

(quoting Panetti v. Quarterman, 551 U.S. 930, 945-946

(2007)).

5 Balbuena asserts that “[t]he Second Circuit has declined to reconsider its position post-Gonzalez.” Pet. 22. That characterization is significantly overstated. The two opinions Balbuena cites

for that proposition do not cite Gonzalez at all; and in both cases

the Second Circuit denied habeas relief without any need or occasion to reconsider its analysis in Ching or Whab. See Garcia v.

Superintendent of Great Meadow Corr. Facility, 841 F.3d 581,

582 (2d Cir. 2016) ( per curiam) (“an order denying a § 2254 petition as incomprehensible is ‘on the merits’ for the purposes of the

successive-petition requirements”); Fuller v. United States, 815

F.3d 112, 113 (2d Cir. 2016) ( per curiam) (a third habeas petition

was second or successive because it was filed after the first petition became final).

16

In Gonzalez, this Court recognized that Rule 60(b)

motions will often implicate AEDPA’s restrictions on

second or successive petitions. It held that a Rule 60(b)

motion constitutes a habeas petition for purposes of

AEDPA if the motion “contain[s] one or more

‘claims’”—that is, one or more asserted grounds for

why the petitioner is “entitled to habeas relief.” Id. at

530-531, 532. “A motion that seeks to add a new

ground for relief . . . will of course qualify” as second

or successive, as will a motion that “attacks the federal

court’s previous resolution of a claim on the merits.”

Id. at 532. “Using 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” limitations on

second or successive petitions. Id. at 531. 6

The Court elaborated on that rationale in Banister,

which held that, “unlike a Rule 60(b) motion,” a motion to alter or amend a judgment under Federal Rule

of Civil Procedure 59(e) “does not count as a second or

successive habeas application.” 140 S. Ct. at 1711.

The Court explained that “Rule 60(b) differs from Rule

59(e) in just about every way that matters to the inquiry” of whether a filing constitutes a second or successive petition. Id. at 1709. While Rule 59(e) “aid[s]

the trial court to get its decision right in the first instance,” Rule 60(b) “threaten[s] an already final judgment with successive litigation.” Id. “[A] Rule 59(e)

6 In contrast, “when a Rule 60(b) motion attacks, not the substance of the federal court’s resolution of a claim on the merits,

but some defect in the integrity of the federal habeas proceedings,” or addresses a “nonmerits aspect of the first federal habeas

proceeding,” AEDPA’s restrictions on second or successive petitions generally are not implicated. Gonzalez, 545 U.S. at 532,

534.

17

motion suspends the finality of the habeas judgment,”

but a Rule 60(b) motion does not. Id. at 1710. And

while a Rule 59(e) motion must be filed within 28 days

of a judgment, “Rule 60(b) motions can arise long after

the denial of a prisoner’s initial petition . . . within either a year or a more open-ended ‘reasonable time’,”

thus “undermining AEDPA’s scheme to prevent delay

and protect finality.” Id.

The language and reasoning of Gonzalez and Banister support the view that all Rule 60(b) motions presenting new claims qualify as second or successive petitions. See Gonzalez, 545 U.S. at 532 (“A [Rule 60(b)]

motion that seeks to add a new ground for relief . . .

will of course qualify.”); cf. Banister, 140 S. Ct. at 1709

(under Gonzalez, “a Rule 60(b) motion ‘for “relie[f]

from a final judgment’ denying habeas relief 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’”). As the court below

observed, nothing in those decisions “suggest[s] 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.” Pet. App. 39a. And “[n]one of [the]

reasons” articulated in Banister “for distinguishing

Rule 59(e) motions from Rule 60(b) motions . . . is in

any way affected by or related to the timing of when a

Rule 60(b) motion is filed.” Id. at 42a. To the contrary,

this “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.” Id.

18

In this case, Balbuena acknowledges that his Rule

60(b) motion sought relief from the district court’s final judgment on the merits in order to advance a “new

claim.” Pet. 10. That claim—his theory that the admission into evidence of his confession violated his Miranda rights—could have been brought in his initial

petition. Under this Court’s precedent, the motion is

a second or successive petition under Section 2244.

b. Balbuena advances an array of merits arguments for his position that his Rule 60(b) motion was

not a second or successive petition. Pet. 23-33. None

is persuasive.

He first contends that the decision below fails to

heed AEDPA’s guidance that habeas applicants are

permitted “one full course of litigation up to the Supreme Court” and instead limits them to “‘one full opportunity to seek collateral review in the district

court.’” Pet. 23; see id. at 23-24; see also Pet. App. 48a49a (Fletcher, J., concurring in the result). A habeas

applicant is undoubtedly entitled to seek review of the

claims in his initial petition at every level of the federal court system, subject to the limitations Congress

imposed in AEDPA. See 28 U.S.C. § 2253 (describing

certificate of appealability requirement). But that

does not suggest that an applicant must be allowed to

add new claims even after the district court enters a

final judgment denying the initial petition.

Balbuena next asserts that this Court’s precedent

“foreclose[s]” (Pet. 24) the court of appeals’ conclusion

that a petition is second or successive when it presents

a “new claim” in the guise of a Rule 60(b) motion following the district court’s “previous[] adjudicati[on] . . .

on the merits” of an initial habeas petition. Pet. App.

27a-28a. But none of the cases Balbuena invokes (Pet.

19

24-26) involved a habeas applicant seeking, after a final judgment on the merits denying his initial petition,

to raise a new claim that he could have raised in the

initial petition. In Slack, the initial petition was “dismissed without adjudication on the merits for failure

to exhaust state remedies.” 529 U.S. at 478. And Panetti v. Quarterman, 551 U.S. 930, 934-935 (2007), and

Stewart v. Martinez-Villareal, 523 U.S. 637, 639

(1998), involved claims that a prisoner lacked the

mental competency required for the state to execute

him under Ford v. Wainwright, 477 U.S. 399 (1986).

Such claims generally “are not ripe until after the time

has run to file a first federal habeas petition.” Panetti,

551 U.S. at 943. So petitioners may assert them in a

subsequent petition once the claim ripens without implicating the restrictions on second or successive petitions. Id.; see id. at 947; Martinez-Villareal, 523 U.S.

at 644-645. Here, in contrast, there is no indication

that Balbuena’s Miranda claim was unripe or otherwise could not have been raised in his initial petition.

Balbuena also argues that the decision below “depart[s] from ‘this Court’s consistent understanding of

finality in the context of collateral review.’” Pet. 26

(quoting Clay v. United States, 537 U.S. 522, 524

(2003)). But “[f]inality is a concept that has been ‘variously defined; like many legal terms, its precise

meaning depends on context.’” Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (quoting Clay, 537 U.S.

at 527). The cases Balbuena cites (Pet. 26-28) considered “finality” in contexts far removed from this one.

They addressed issues such as when a conviction on

direct review becomes final for purposes of triggering

AEDPA’s one-year time limit for filing a habeas petition, see Clay, 537 U.S. at 524-525; Jimenez, 555 U.S.

at 121; when a pending state collateral review petition

tolls that limitations period, Carey v. Saffold, 536 U.S.

20

214, 217 (2002); when a case becomes final such that

a change in law does not apply to it, see Patchak v.

Zinke, 138 S. Ct. 897, 909 (2018) (plurality opinion);

Teague v. Lane, 489 U.S. 288, 295 (1989); Bradley v.

School Bd. of City of Richmond, 416 U.S. 696, 710-711

& n.14 (1974); or when a case becomes final such that

the Constitution prohibits Congress from seeking to

reopen or retroactively amend the judgment, see Miller v. French, 530 U.S. 327, 344 (2000); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995).

In those contexts, “finality” generally occurs when

this Court denies certiorari or the time for seeking further review expires. See Pet. 26-28. But a Rule 60(b)

motion necessarily seeks relief “from a final judgment,

order, or proceeding.” Fed. R. Civ. P. 60(b); see Banister, 140 S. Ct. at 1709; Gonzalez, 545 U.S. at 528. Rule

60(b) thus uses the term “final judgment” in the same

sense that a district court judgment is “final for appellate review and claim preclusion purposes.” Clay, 537

U.S. at 527; see 28 U.S.C. § 1291. And that is the understanding of finality that this Court employed in

Banister in distinguishing between a Rule 60(b) motion and a Rule 59(e) motion—which, unlike a Rule

60(b) motion, “‘suspend[s] the finality’ of any judgment,

including one in habeas.” Banister, 140 S. Ct. at 1706;

see id. at 1709-1810. To the extent that the inquiry

into whether a Rule 60(b) motion qualifies as a second

or successive petition is informed by the “finality” of

the district court’s judgment denying the initial petition, see Pet. 3, 28, it would be more sensible to apply

that same understanding of finality. Cf. Moreland,

813 F.3d at 324.

Balbuena further argues that a Rule 60(b) motion

like his does not implicate the traditional “abuse of the

writ” doctrine, which he suggests applies only after a

21

habeas applicant “‘exhausts appellate remedies.’” Pet.

29 (quoting Johnson v. United States, 196 F.3d 802,

804 (7th Cir. 1999) (emphasis added by Balbuena)).

But pre-AEDPA “decisions abound dismissing Rule

60(b) motions” under the abuse-of-the-writ doctrine,

Banister, 140 S. Ct. at 1709, and many of those decisions invoked the doctrine to reject new claims raised

in a Rule 60(b) motion filed while the applicant’s initial petition remained pending on appeal, see, e.g.,

Hunt v. Nuth, 57 F.3d 1327, 1331, 1339 (4th Cir. 1995);

Blair v. Armontrout, 976 F.2d 1130, 1133-1134 (8th

Cir. 1992).

Finally, Balbuena and his amici raise a policy concern: They argue that unless habeas applicants are

permitted to raise new claims while their initial petitions are pending on appeal, they may be deprived of

an “opportunity to have a well-justified grievance adjudicated” in federal habeas, because of the risk that

pro se applicants might overlook certain claims in

their initial petitions. Pet. 30-31; see Fed. Public Defenders Br. 3-4. Congress has sought to address that

concern by authorizing district courts to appoint counsel for indigent habeas applicants in appropriate

cases. 18 U.S.C. § 3006A(a)(2). Balbuena’s amici assert that “district courts within the Ninth Circuit differ as far as how frequently they appoint counsel for a

petitioner prior to an appeal.” Fed. Public Defenders

Br. 5. And that is an important question of policy that

can and should be considered by the district courts or

perhaps by Congress. But it does not provide a basis

for Balbuena’s interpretation of AEDPA.

Moreover, Balbuena’s case is hardly “illustrative”

(Pet. 30) of any problem regarding pro se petitioners

overlooking meritorious claims. He failed to raise the

Miranda claim that he now seeks to assert not only in

22

his initial pro se federal habeas petition, but also at

trial and on direct appeal—when he was represented

by counsel. See Balbuena, 2010 WL 1783558, at *5.

The underlying Miranda claim lacks merit. Police told

Balbuena: “[Y]ou 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.” Pet. App. 9a. That admonition “reasonably conveyed” the nature of his Miranda rights.

Florida v. Powell, 559 U.S. 50, 62 (2010). And the

state court correctly rejected Balbuena’s argument

that he received ineffective assistance of counsel because his trial and appellate attorneys failed to raise

that Miranda claim. See supra p. 5 n.2; Johnson v.

Williams, 568 U.S. 289, 298-301 (2013); Harrington v.

Richter, 562 U.S. 86, 98-100 (2011). That conclusion

was certainly not an unreasonable application of this

Court’s precedent. See 28 U.S.C. § 2254(d)(1); Richter,

562 U.S. at 104-105.

23

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

JEFFREY M. LAURENCE

Senior Assistant Attorney General

JOSHUA PATASHNIK

Deputy Solicitor General

PEGGY S. RUFFRA

Supervising Deputy

Attorney General

JILL M. THAYER

Deputy Attorney General

May 3, 2021