United States District Court, N.D. California
March 4, 2014
ALEXANDER BALBUENA, Petitioner,
MARTIN BITER, Warden, and THE CALIFORNIA ATTORNEY GENERAL, Respondents.
SCOTT A. SUGARMAN, SUGARMAN & CANNON, San Francisco, CA, Attorneys for Petitioner ALEXANDER BALBUENA
Jill Marietta Thayer, Deputy Attorney General, Attorney for Respondent.
STIPULATION TO EXTEND TIME FOR PETITIONER TO FILE 60(b) MOTION AND [proposed] ORDER
RICHARD SEEBORG, District Judge.
The parties hereby STIPULATE that petitioner, Alexander Balbuena, through counsel, Scott A. Sugarman, Sugarman & Cannon, may extend the time to file a motion under Rule 60(b) of the Federal Rules of Civil Procedure for 30 days, up to and including April 7, 2014, beyond the filing date of March 7, 2014, set by this Court's January 6, 2014 Order.
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 23, 2013, the United States Court of Appeals for the Ninth Circuit issued a Certificate of 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.
No. 12-1641, Dkt. 7. The Court of Appeals further directed that counsel be appointed for 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 introduced at his trial, was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny, including United States v. Bland, 908 F.2d 471 (9th Cir. 1990). On October 17, 2013, after receiving briefing from the parties, the Court of Appeals denied Balbuena's Motion for Stay without prejudice to filing a renewed motion for stay accompanied by a written declaration that this Court was willing to entertain a motion to re-open proceedings in this action.
On November 1, 2013, Balbuena filed in this Court an Application for a Written Indication. On November 7, 2013, this Court issued an Order re: Application for Written Indication, providing that this Court would entertain a motion to amend the petition to add a new claim in the habeas proceeding. No. C 11-0228 RS, Dkt. 27. The next day, Balbuena notified the Court of Appeals of this Court's Order. No. 12-16414, Dkt. 23.
On November 22, 2013, Balbuena filed a renewed Motion for Stay and to Hold in Abeyance the Pending Appeal, accompanied by this Court's Order regarding a Written Indication. No. 12-16414, Dkt. 26. On December 30, 2013, the Court of Appeals granted that Motion and remanded this matter to this Court to consider Balbuena's Motion under Rule 60(b).
On January 6, 2014, this Court issued an Order setting a briefing schedule for Balbuena's Motion under Rule 60(b), directing that Balbuena file that Motion on or before March 7, 2014, and setting deadlines for subsequent pleadings. In that Order, the Court noted that a reasonable request for extension of time will be granted upon a showing of good cause if such request was filed on or before the deadline set.
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, Balbuena pro se filed a habeas corpus petition in the California Court of Appeals regarding his sentence. In that proceeding, Balbuena alleged his sentence of 72-years-to-life in prison in the underlying action constitutes a sentence on a minor that violates the 8th Amendment under Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) and other decisions. The California Court of Appeal issued an Order to Show Cause and ordered that counsel be appointed for Balbuena.
His appointed counsel thereafter informed the California Court of Appeal that she had a conflict of interest and sought leave to withdraw as Balbuena's attorney. The California Court of Appeal granted her leave to withdraw and appointed undersigned counsel as counsel for Balbuena in that state proceeding. Balbuena's prior attorney then sent to undersigned counsel three banker boxes of materials related to the state proceedings in the trial and appellate courts (such as transcripts of the trial, investigative reports and interviews). Undersigned counsel is now reviewing those records. Such records will be relevant to the Rule 60(b) Motion and related proceedings in this Court.
In addition to representing Balbuena, undersigned counsel is representing 40 to 50 other clients in California and federal courts, in the trial courts or on appeal. Counsel for Balbuena has very recently filed, inter alia, a 29-page Motion/Memorandum to Suppress Evidence, Quash Warrant and Traverse the Warrant and an 81-page Appellant's Opening Brief for a client sentenced to life in prison.
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 extended: respondent's response due on or about June 7, 2014, and petitioner's reply, if any, on or before July 7, 2014.
IT IS SO STIPULATED.