Balbuena v. Sullivan

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation970 F.3d 1176
Docket Number No. 18-15432,No. 12-16414,12-16414
Parties Alexander BALBUENA, Petitioner-Appellant, v. William Joe SULLIVAN, Warden; Attorney General for the State of California, Respondents-Appellees. Alexander Balbuena, Petitioner-Appellant, v. William Joe Sullivan, Warden, Respondent-Appellee.
Decision Date17 August 2020

970 F.3d 1176

Alexander BALBUENA, Petitioner-Appellant,
William Joe SULLIVAN, Warden; Attorney General for the State of California, Respondents-Appellees.

Alexander Balbuena, Petitioner-Appellant,
William Joe Sullivan, Warden, Respondent-Appellee.

No. 12-16414
No. 18-15432

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 12, 2019 San Francisco, California
Filed August 17, 2020

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,

970 F.3d 1181

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.



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

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


Balbuena was taken to a police station where two detectives questioned him, for

970 F.3d 1182

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 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

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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."


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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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, 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...

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4 cases
  • Balbuena v. Sullivan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Agosto 2020
    ...2019 San Francisco, CaliforniaFiled August 17, 2020Amended November 17, 2020ORDERThe 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......
  • United States v. Peterson
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 15 Diciembre 2020
    ...a merits determination was in error," for example, an erroneous dismissal of a first petition as premature. Balbuena v. Sullivan, 970 F.3d 1176, 1190 (9th Cir. 2020) (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005)); (Resp. 3:3-4:2, ECF No. 60). However, this Court neither found Pe......
  • United States v. Daniels
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 20 Agosto 2021
    ...applies even if the appeal of the federal district court's previous resolution on the merits is still pending. See Balbuena v. Sullivan, 970 F.3d 1176, 1194 (9th Cir. 2020) ((although petitioner's appeal was still pending when petitioner filed a Rule 60(b) motion, the Rule 60(b) motion was ......
  • United States v. Burk
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • 21 Octubre 2020
    ...Docket 295 at 13. 24. Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996), as amended (Sept. 4, 1996); see also Balbuena v. Sullivan, 970 F.3d 1176, 1193 (9th Cir. 2020) (applying Lindauer to a habeas case and holding that "the district court could not apply Rule 15; instead, it could on......

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