Balbuena v. Biter et al

Filing 31

STIPULATION AND ORDER FOR PETITIONER TO FILE 60(b) MOTION. Signed by Judge Richard Seeborg on 3/4/14. (cl, COURT STAFF) (Filed on 3/4/2014)

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SCOTT A. SUGARMAN (No. 68277)
SUGARMAN & CANNON
180 Montgomery St., Suite 2350
San Francisco, CA. 94104
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Petitioner
ALEXANDER BALBUENA

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALEXANDER BALBUENA,
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Petitioner,
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v.
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MARTIN BITER, Warden, and THE CALIFORNIA )
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ATTORNEY GENERAL,
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Respondents.

No. C 11-0228 RS

STIPULATION TO EXTEND
TIME FOR PETITIONER TO
FILE 60(b) MOTION AND
[proposed] ORDER

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The parties hereby STIPULATE that petitioner, Alexander Balbuena, through counsel,

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Scott A. Sugarman, Sugarman & Cannon, may extend the time to file a motion under Rule 60(b) of

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the Federal Rules of Civil Procedure for 30 days, up to and including April 7, 2014, beyond the

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filing date of March 7, 2014, set by this Court’s January 6, 2014 Order.
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On January 14, 2011, Alexander Balbuena (“Balbuena) pro se filed a timely petition for
writ of habeas corpus in this Court in this docket. On May 25, 2012, this Court denied that
petition in its entirety, and denied Balbuena’s request for a Certificate of Appealability. On May

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23, 2013, the United States Court of Appeals for the Ninth Circuit issued a Certificate of

Stipulation to Extend Time for Filing Rule 60(b) Motion

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Appealability on whether Balbuena’s statement had been voluntary or the product of police
coercion:
[whether the trial court] violated appellant’s right to due process by denying his
motion to suppress his confession on the ground that it was an involuntary
product of police coercion.

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No. 12-1641, Dkt. 7. The Court of Appeals further directed that counsel be appointed for
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Balbuena.
Thereafter, Balbuena, through counsel, filed in the Court of Appeals a Motion to Stay
Appeal and Remand to this Court to permit Balbuena to address an issue not raised in his habeas
petition in this Court. Balbuena argued that Balbuena’s statement/confession, which was

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introduced at his trial, was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and
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its progeny, including United States v. Bland, 908 F.2d 471 (9th Cir. 1990). On October 17,

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2013, after receiving briefing from the parties, the Court of Appeals denied Balbuena’s Motion

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for Stay without prejudice to filing a renewed motion for stay accompanied by a written

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declaration that this Court was willing to entertain a motion to re-open proceedings in this action.
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On November 1, 2013, Balbuena filed in this Court an Application for a Written

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Indication. On November 7, 2013, this Court issued an Order re: Application for Written

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Indication, providing that this Court would entertain a motion to amend the petition to add a new

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claim in the habeas proceeding. No. C 11-0228 RS, Dkt. 27. The next day, Balbuena notified

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the Court of Appeals of this Court’s Order. No. 12-16414, Dkt. 23.
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On November 22, 2013, Balbuena filed a renewed Motion for Stay and to Hold in

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Abeyance the Pending Appeal, accompanied by this Court’s Order regarding a Written

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Indication. No. 12-16414, Dkt. 26. On December 30, 2013, the Court of Appeals granted that

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Motion and remanded this matter to this Court to consider Balbuena’s Motion under Rule 60(b).

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Stipulation to Extend Time for Filing Rule 60(b) Motion

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On January 6, 2014, this Court issued an Order setting a briefing schedule for Balbuena’s

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Motion under Rule 60(b), directing that Balbuena file that Motion on or before March 7, 2014,

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and setting deadlines for subsequent pleadings. In that Order, the Court noted that a reasonable

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request for extension of time will be granted upon a showing of good cause if such request was

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filed on or before the deadline set.
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Balbuena, through counsel, now seeks, with the concurrence of respondent, an additional
30 days to file a Motion under Rule 60(b).
Counsel wants to advise this Court that while Balbuena’s appeal was pending in the
United States Court of Appeals for the Ninth Circuit of this Court’s denial of his habeas petition,

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Balbuena pro se filed a habeas corpus petition in the California Court of Appeals regarding his
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sentence. In that proceeding, Balbuena alleged his sentence of 72-years-to-life in prison in the

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underlying action constitutes a sentence on a minor that violates the 8th Amendment under Miller

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v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012) and other decisions. The California Court of

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Appeal issued an Order to Show Cause and ordered that counsel be appointed for Balbuena.
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His appointed counsel thereafter informed the California Court of Appeal that she had a

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conflict of interest and sought leave to withdraw as Balbuena’s attorney. The California Court of

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Appeal granted her leave to withdraw and appointed undersigned counsel as counsel for

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Balbuena in that state proceeding. Balbuena’s prior attorney then sent to undersigned counsel

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three banker boxes of materials related to the state proceedings in the trial and appellate courts
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(such as transcripts of the trial, investigative reports and interviews). Undersigned counsel is

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now reviewing those records. Such records will be relevant to the Rule 60(b) Motion and related

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proceedings in this Court.

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Stipulation to Extend Time for Filing Rule 60(b) Motion

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In addition to representing Balbuena, undersigned counsel is representing 40 to 50 other

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clients in California and federal courts, in the trial courts or on appeal. Counsel for Balbuena has

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very recently filed, inter alia, a 29-page Motion/Memorandum to Suppress Evidence, Quash

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Warrant and Traverse the Warrant and an 81-page Appellant’s Opening Brief for a client

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sentenced to life in prison.
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Counsel for respondent and counsel for petitioner STIPULATE that the date by which
petitioner may file his Rule 60(b) Motion may be extended 30 days up to and including April 7,
2014. The parties further stipulate that the filing dates for subsequent pleadings may be similarly

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extended: respondent’s response due on or about June 7, 2014, and petitioner’s reply, if any, on
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or before July 7, 2014.
IT IS SO STIPULATED.
DATED: February 28, 2014

______/s/________________
Jill Marietta Thayer
Deputy Attorney General
Attorney for Respondent

DATED: February 28, 2014

/s/
Scott A. Sugarman
Attorney for Alexander Balbuena

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SO ORDERED.

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DATE: 3/4/14

_________________________________
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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Stipulation to Extend Time for Filing Rule 60(b) Motion

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