Balbuena v. Biter et al
Filing
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STIPULATION AND ORDER TO EXTEND TIME FOR PETITIONER TO FILE 60(b) MOTION. Signed by Judge Richard Seeborg on 4/8/14. (cl, COURT STAFF) (Filed on 4/8/2014)
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SCOTT A. SUGARMAN (No. 68277)
SUGARMAN & CANNON
180 Montgomery St., Suite 2350
San Francisco, CA. 94104
Telephone: (415) 362-6252
Facsimile: (415) 362-6431
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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 May 7, 2014, beyond the
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filing date of April 7, 2014, previously set by this Court.
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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. On Stipulation of the parties and for good cause, this Court
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re-set the briefing schedule so that Balbuena’s Motion is now due April 7, 2014.
Balbuena, through counsel, now seeks, with the concurrence of respondent, an additional
30 days to file a Motion under Rule 60(b).
As noted in the prior Stipulation filed by counsel, undersigned counsel was provided by
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Balbuena’s prior attorney with three banker boxes of materials related to the state proceedings in
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the trial and appellate courts (such as transcripts of the trial, investigative reports and interviews).
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Undersigned counsel has now reviewed most, but not all of those records. Such records will be
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relevant to the Rule 60(b) Motion and related proceedings in this Court.
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As further good cause to an extension of time, in addition to representing Balbuena,
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undersigned counsel is representing 40 to 50 other clients in California and federal courts, in the
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trial courts or on appeal. For those clients, counsel for Balbuena has very recently filed, inter
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alia, a 26-page Motion/Memorandum for Discovery related to Brady/Giglio material, a 15-page
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Reply to the Opposition to that Motion, a 12-page Opposition to Motion to Quash Subpoena
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Duces Tecum, 10-page Motion/Memorandum to Suppress Evidence, 15-page
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Motion/Memorandum to Sever Defendants and/or Dismiss Charges, and 9-page
Motion/Memorandum for Bail.
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Stipulation to Extend Time for Filing Rule 60(b) Motion
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Counsel for respondent and counsel for petitioner STIPULATE that the date by which
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petitioner may file his Rule 60(b) Motion may be extended 30 days up to and including May 7,
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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 before July 7, 2014, and petitioner’s reply, if any, on
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or before August 7, 2014.
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IT IS SO STIPULATED.
DATED: April 3, 2014
______/s/________________
Jill Marietta Thayer
Deputy Attorney General
Attorney for Respondent
DATED: April 3, 2014
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/s/
Scott A. Sugarman
Attorney for Alexander Balbuena
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SO ORDERED.
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DATE: 4/8/14
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_________________________________
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
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Stipulation to Extend Time for Filing Rule 60(b) Motion
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