FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXANDER BALBUENA,

Petitioner-Appellant,

v.

WILLIAM JOE SULLIVAN, Warden; 

ATTORNEY GENERAL FOR THE STATE 

OF CALIFORNIA,

Respondents-Appellees.

No. 12-16414

D.C. No.

3:11-cv-00228-

RS

ALEXANDER BALBUENA,

Petitioner-Appellant,

v.

WILLIAM JOE SULLIVAN, Warden,

Respondent-Appellee.

No. 18-15432

D.C. No.

3:11-cv-00228-

RS

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, District Judge, Presiding

Argued and Submitted November 12, 2019

San Francisco, California
2 BALBUENA V. SULLIVAN

Filed August 17, 2020

Amended November 17, 2020

Before: William A. Fletcher, Mark J. Bennett, and

Bridget S. Bade, Circuit Judges.

Order;

Opinion by Judge Bade;

Concurrence by Judge W. Fletcher

SUMMARY*

Habeas Corpus

The panel filed an amended opinion, denied a petition for 

rehearing, and denied on behalf of the court a petition for 

rehearing en banc, in appeals arising from the district court’s 

denial of (1) Alexander Balbuena’s habeas corpus petition in 

which he argued that the admission of his confession 

violated his due process rights because the statements were 

the involuntary product of coercion; and (2) his motion 

pursuant to Fed. R. Civ. P. 60(b) for relief from judgment to 

allow him to amend his habeas petition to add a new claim 

that the admission of his confession violated his Miranda

rights. 

Applying AEDPA’s deferential standards of federal 

habeas review, and affirming the denial of the petition, the 

panel held that the state court’s conclusion that Balbuena’s 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BALBUENA V. SULLIVAN 3

confession was voluntary was not contrary to or an 

unreasonable application of federal law. The panel wrote 

that the state court did not unreasonably conclude that 

Balbuena was sixteen years old and considered his age, 

experience, and maturity as part of the totality of the 

circumstances of his confession. The panel considered 

Balbuena’s arguments regarding the adequacy of his 

Miranda warnings as part of the totality of the circumstances 

relevant to his Fourteenth Amendment claim rather than as a 

separate Sixth Amendment claim, and concluded that the 

state court’s determination that Balbuena was advised of his 

Miranda rights was not objectively unreasonable. The panel 

wrote that the state court did not unreasonably conclude that 

the circumstances of the interview, which included the 

detectives’ limited references to Balbuena’s unborn child, 

use of “alternative scenarios,” and implied officers of 

leniency were not coercive. The panel wrote that a video 

recording of the interview refutes Balbuena’s argument that 

those tactics overbore his will and rendered his confession 

involuntary.

The panel held that the district court properly denied 

Balbuena’s Rule 60(b) motion as an unauthorized second or 

successive petition under 28 U.S.C. § 2244(b)(3)(A). 

Balbuena argued that the district court should have 

considered his Rule 60(b) motion as a motion to amend his 

habeas petition because he filed it while his appeal from the 

denial of his habeas petition remained pending before this 

court and that his claim therefore was not “fully 

adjudicated.” The panel wrote that a Rule 60(b) motion that 

asserts a new claim is a disguised habeas corpus petition that 

is subject to the requirements of § 2244(b), and that because 

Balbuena neither sought nor obtained authorization from this 

court to file a second or successive habeas petition, the 

district court lacked jurisdiction to consider his new claim. 
4 BALBUENA V. SULLIVAN

The panel rejected Balbuena’s contention that even if his 

Rule 60(b) motion is a disguised habeas petition, it is not a 

second or successive petition under § 2244(b) because the 

denial of his initial petition was pending on appeal.

Concurring in the result, Judge W. Fletcher agreed that 

the state court did not unreasonably conclude that

Balbuena’s confession was voluntary. He also agreed that 

Beaty v. Schriro, 554 F.3d 780, 783 n.1 (9th Cir. 2009), 

requires the panel to hold that Balbuena’s Rule 60(b) motion 

was a second or successive habeas petition, even though it 

was filed while an appeal on his initial habeas petition was 

awaiting adjudication in this court. He wrote separately to 

register his disagreement with Beaty and to urge the 

Supreme Court to recognize the circuit split and to adopt the 

rule stated in Ching v. United States, 298 F.3d 174, 178 (2d 

Cir. 2002), and United States v. Santarelli, 929 F.3d 95, 104–

05 (3d Cir. 2019).

COUNSEL

Scott A. Sugarman (argued), Sugarman & Cannon, San 

Francisco, California, for Petitioner-Appellant.

Jill M. Thayer (argued), Deputy Attorney General; Peggy S. 

Ruffra, Supervising Deputy Attorney General; Gerald A. 

Engler, Senior Assistant Attorney General; Xavier Becerra, 

Attorney General; Office of the Attorney General, San 

Francisco, California; for Respondents-Appellees.
BALBUENA V. SULLIVAN 5

ORDER

The 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 and rehearing en banc. The full 

court has been advised of the petition for rehearing en banc 

and no judge has requested a vote on whether to rehear the 

matter en banc. Fed. R. App. P. 35. Accordingly, the 

petition for rehearing and rehearing en banc is DENIED. No 

further petitions for panel rehearing or rehearing en banc 

may be filed.

OPINION

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, 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.
6 BALBUENA V. SULLIVAN

I.

A.

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-yearold 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

1 Luis Ochoa (a/k/a Gizmo) had been shot and killed the previous 

day.

2 Balbuena lived in an apartment known to be affiliated with the 

street gang Richmond Sur Trece in a neighborhood called the “RST 

compound.” The RST compound included the “Green Store” that only 

RST gang members could use to sell narcotics.
BALBUENA V. SULLIVAN 7

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

B.

Balbuena was taken to a police station where two 

detectives questioned him, for 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 

3 Immediately after the interview at the house, Lawson made similar 

statements in a recorded interview at the police station. Lawson testified 

at trial and recanted the statements that she made at her house and in the 

recorded interview. At the time of the interviews, Lawson was fifteen 

years old and had some connection to Balbuena. When officers arrested 

Balbuena, he was in bed with his girlfriend and a child who was 

Lawson’s son. Lawson also told detectives that Balbuena lived with her 

sister-in-law.

4 Several months later, the detectives also recorded an interview with 

another witness, Kay Daniels. Daniels was in federal custody for drugrelated offenses and wanted to trade information for a reduction in his 

sentence. Daniels said that a few days after Gizmo’s murder, he was 

outside Herrera’s house with Herrera, Balbuena (a/k/a Jay Leno), the 

“dude that used to work at Beacon,” and Lawson, when Stinson arrived. 

Herrera, the “dude that used to work at Beacon,” and Stinson ran up to a 

car, and then Daniels heard several shots. Daniels identified Stinson and 

the “dude that used to work at Beacon” as the shooters. Daniels saw 

Herrera run back to his house with two guns. He was unsure of 

Balbuena’s movements; he “didn’t really see him too much.”
8 BALBUENA V. SULLIVAN

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 
BALBUENA V. SULLIVAN 9

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 tried as an adult, and implied that he would receive lenient 

treatment if he spoke honestly and showed “remorse.” After 
10 BALBUENA V. SULLIVAN

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.”

C.

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 (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, 
BALBUENA V. SULLIVAN 11

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 2013, this 

court appointed counsel and issued a certificate of 

appealability on the sole issue of whether the state court 

violated Balbuena’s right to due process by denying his 

motion to suppress his confession on the ground that it was 

an involuntary product of coercion.

In August 2013, Balbuena asked this court to stay his 

appeal and remand to the district court with instructions to 

“permit [him] to file an amended petition.” Balbuena 

acknowledged that if this court denied his motion he would 

“be left to file a new successive habeas petition,” which is 

generally barred by 28 U.S.C. § 2244(b)(3). In October 

2013, this court denied the motion without prejudice to 

refiling with a written indication that the district court would 

5 “A disposition is ‘on the merits’ if the district court either considers 

and rejects the claims or determines that the underlying claim will not be 

considered by a federal court.” McNabb v. Yates, 576 F.3d 1028, 1029 

(9th Cir. 2009) (citation omitted).
12 BALBUENA V. SULLIVAN

be willing to entertain the motion. Balbuena obtained 

written indication from the district court stating that it “was 

willing to entertain” further proceedings but also that it was 

making “no comment on the merits of such a motion.” He 

then filed a renewed motion to stay the appeal and remand 

to the district court to file an amended petition. In December 

2013, this court stayed the appeal and remanded under 

Federal Rule of Appellate Procedure 12.1(b) to permit the 

district court to consider Balbuena’s Rule 60(b) motion.

Balbuena returned to the district court and filed a Rule 

60(b) motion for relief from judgment to allow him to amend 

his habeas petition to add a new claim that the admission of 

his confession violated his Miranda rights. In November 

2014, the district court denied the motion without prejudice 

and stayed proceedings to allow Balbuena to exhaust his new 

claim in state court. In January 2017, the district court 

reopened proceedings, and Balbuena filed a renewed Rule 

60(b) motion in March 2017. In February 2018, the district 

court denied the motion as an unauthorized second or 

successive petition under 28 U.S.C. § 2244(b)(3)(A). 

Balbuena appealed that decision, and this court consolidated 

the appeals.

II.

This court reviews de novo a district court’s denial of a 

habeas corpus petition, Smith v. Ryan, 813 F.3d 1175, 1178–

79 (9th Cir. 2016), and a dismissal of a Rule 60(b) motion as 

an unauthorized second or successive § 2254 petition, Jones 

v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013). Both claims are 

governed by standards set forth in the Antiterrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”). See

28 U.S.C. §§ 2244(b), 2254(d).
BALBUENA V. SULLIVAN 13

III.

A.

Under § 2254, a state prisoner may challenge the 

constitutionality of his custody by filing a petition for a writ 

of habeas corpus in federal court. 28 U.S.C. § 2254(a). In 

his habeas petition, Balbuena challenged his state custody 

arguing, among other things, that the admission of his 

confession violated his due process rights because his 

statements were the involuntary product of coercion and, 

therefore, the state trial and appellate courts unreasonably 

found his confession voluntary.

We consider Balbuena’s petition under the framework of 

AEDPA and apply a “highly deferential standard for 

evaluating state-court rulings.” Woodford v. Visciotti, 

537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. 

Murphy, 521 U.S. 320, 333 n.7 (1997)). Under AEDPA, a 

federal court may only grant habeas corpus relief when the 

state court’s ruling was (1) “contrary to, or involved an 

unreasonable application of, clearly established Federal law, 

as determined by the Supreme Court of the United States,” 

or (2) “based on an unreasonable determination of the facts 

in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d)(1), (2).

Under the first clause of § 2254(d)(1), a state court’s 

decision is “contrary to” clearly established federal law if it 

contradicts governing law in Supreme Court cases, or if it 

reaches a different result than Supreme Court precedent 

when considering materially indistinguishable facts. See 

Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the 

second clause, a state court’s decision is an “unreasonable 

application” of clearly established federal law if it identifies 

the correct “governing legal rule but applies it unreasonably 
14 BALBUENA V. SULLIVAN

to the facts” of the case. Id. at 407–08. “The ‘unreasonable 

application’ clause requires the state court decision to be 

more than incorrect or erroneous”; it must be “objectively 

unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) 

(citing Williams, 529 U.S. at 409–10, 412).

Under § 2254(d)(2), a state court’s factual 

determinations are not “unreasonable merely because the 

federal habeas court would have reached a different 

conclusion in the first instance.” Wood v. Allen, 558 U.S. 

290, 301 (2010). That “[r]easonable minds reviewing the 

record might disagree” about a factual finding is insufficient 

to “supersede” the state court’s determination. Rice v. 

Collins, 546 U.S. 333, 341–42 (2006).

When applying these standards to a petitioner’s claims, 

this court considers the last reasoned state court decision—

here, the decision of the California Court of Appeal. See 

Martinez v. Cate, 903 F.3d 982, 991 (9th Cir. 2018). 

Balbuena’s claim that the state court violated his due process 

rights by admitting his coerced confession challenges the 

constitutionality of his custody. Accordingly, we consider 

whether the state court’s adjudication of this claim resulted 

in a decision that was “contrary to” or involved an 

“unreasonable application of” established federal law, or that 

was based on an unreasonable determination of the facts 

considering the evidence presented in the state court 

proceedings. See 28 U.S.C. § 2254(d).

B.

An involuntary or coerced confession violates a 

defendant’s right to due process under the Fourteenth 

Amendment and is inadmissible at trial. Jackson v. Denno, 

378 U.S. 368, 385–86 (1964); see Dickerson v. United 

States, 530 U.S. 428, 433–34 (2000). To determine whether 
BALBUENA V. SULLIVAN 15

a confession is involuntary, we must ask “whether a 

defendant’s will was overborne by the circumstances 

surrounding the giving of a confession,” considering “the 

totality of all the surrounding circumstances—both the 

characteristics of the accused and the details of the 

interrogation.” Dickerson, 530 U.S. at 434 (internal 

quotation marks and citations omitted). “The characteristics 

of the accused can include the suspect’s age, education, and 

intelligence as well as a suspect’s prior experience with law 

enforcement,” Yarborough v. Alvarado, 541 U.S. 652, 668 

(2004) (citations omitted), and the suspect’s maturity, 

Withrow v. Williams, 507 U.S. 680, 693 (1993). The 

“potential circumstances” of the interrogation include its 

length and location, and “the failure of police to advise the 

defendant of his rights to remain silent and to have counsel 

present during custodial interrogation.” Id. at 693–94

(citation omitted).

Generally telling a suspect to speak truthfully does not 

amount to police coercion. See Amaya-Ruiz v. Stewart, 

121 F.3d 486, 494 (9th Cir. 1997), overruled on other 

grounds by United States v. Preston, 751 F.3d 1008 (9th Cir. 

2014) (en banc). Police deception alone also “does not 

render [a] confession involuntary,” United States v. Miller, 

984 F.3d 1028, 1031 (9th Cir. 1993) (citing Frazier v. Cupp, 

394 U.S. 731, 737–39 (1969)), nor is it coercive to recite 

“potential penalties or sentences,” including the potential 

penalties for lying to the interviewer, United States v. 

Haswood, 350 F.3d 1024, 1029 (9th Cir. 2003) (citations 

omitted).

“The [voluntariness] determination ‘depend[s] upon a 

weighing of the circumstances of pressure against the power 

of resistance of the person confessing.’” Dickerson, 

530 U.S. at 434 (second alteration in original) (quoting Stein 
16 BALBUENA V. SULLIVAN

v. New York, 346 U.S. 156, 185 (1953)). Thus, the court 

reviews a confession from a teenager with “special caution.” 

Doody v. Ryan, 649 F.3d 986, 1011 (9th Cir. 2011) (en 

banc). Even in the case of a juvenile, however, indicating 

that a cooperative attitude would benefit the accused does 

not render a confession involuntary unless such remarks rise 

to the level of being “threatening or coercive.” Juan H. v. 

Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (quoting Fare v. 

Michael C., 442 U.S. 707, 727 (1979)).

C.

Balbuena argues that his statements were involuntary 

based on three factors: (1) his youth, inexperience, and 

immaturity; (2) the Miranda warnings, which he 

characterizes as incomplete; and (3) the interrogation tactics. 

We consider whether Balbuena’s will was overborne under 

the totality of the circumstances. Dickerson, 530 U.S. at 

434. We address each of these arguments in turn, with the 

transcript and the video recording of the interview to assist 

our review. See Doody, 649 F.3d at 1009 (stating that “[t]he 

audiotapes of [the petitioner’s] interrogation are dispositive 

in this case, as we are not consigned to an evaluation of a 

cold record, or limited to reliance on the detectives’ 

testimony.”).

1.

First, Balbuena’s status as “a juvenile is of critical 

importance in determining the voluntariness of his 

confession.” Id. at 1008; see Schneckloth v. Bustamonte, 

412 U.S. 218, 226 (1973) (observing that the voluntariness 

of a statement depends on “the characteristics of the 

accused,” including his “youth” (citation omitted)). 

Balbuena asserts that he was fifteen years old at the time of 

the interview and suggests that the state court’s 
BALBUENA V. SULLIVAN 17

determination that he was sixteen years old was an 

unreasonable determination of the facts. See 28 U.S.C. 

§§ 2254(d)(2), (e). The evidence in the record, however, 

including Balbuena’s telling the detectives he was sixteen 

years old, supports the conclusion that Balbuena was sixteen 

years old. Thus, the state court’s conclusion was not 

unreasonable.

Conceding that “whether he was 15 or 16 at the time of 

the shooting is of little legal significance,” Balbuena argues 

that the state court failed to “evaluate the impact of the 

officers’ statements on an isolated youngster with no 

relevant experience.” Balbuena argues that this failure was 

objectively unreasonable. But Balbuena’s argument is based 

on the false premise that the state court “mentioned his age 

only once in passing.” Instead, the state court addressed

Balbuena’s age when considering the totality of 

circumstances to determine whether his will was overborne. 

That section of the state appellate court opinion reads, in 

part, as follows:

Having reviewed the videotape of 

[Balbuena’s] confession, we find ourselves in 

agreement with the trial court’s 

commendably thorough and detailed ruling 

regarding the nature of the interview. While 

[Balbuena] was a minor without criminal 

history, he was hardly a “child” as 

characterized in his briefs: He was 16 years 

old, arrested in bed with his pregnant 

girlfriend, and well versed in the gang 

activities in his neighborhood. The 

atmosphere of the hour and a half long 

interview (which included periods when he 

was left in the interview room by himself) 
18 BALBUENA V. SULLIVAN

was not overly harsh or threatening, and 

[Balbuena’s] demeanor throughout was 

relaxed and displayed no intimidation or fear.

People v. Balbuena, No. A122043, 2010 WL 1783558, *15 

(Cal. Ct. App. May 5, 2010) (citation omitted). The state 

court’s conclusion that Balbuena’s confession was 

voluntary, after considering his age and lack of criminal 

record, was not an unreasonable application of the law.

2.

Second, although Balbuena did not assert a separate 

Miranda claim in the state trial or appellate court, we 

consider the adequacy of the warnings he received as another 

factor in the voluntariness determination.6

 See Withrow, 507 

U.S. at 693–94. Moreover, Balbuena argues that because he 

has “consistently raised” the “claim of involuntariness,” this 

court must weigh “[a]ll circumstances, including the failure 

to advise an in-custody suspect of his right to counsel.” 

Therefore, as part of the totality of the circumstances 

relevant to Balbuena’s Fourteenth Amendment claim, we 

consider his arguments that the Miranda warnings he 

6 Although Balbuena did not assert a Miranda claim in the trial 

court, he challenged the admission of his confession on other grounds 

and the court held a voluntariness hearing. The state submitted the 

videotape and transcript of Balbuena’s interview, including the Miranda

warnings. On cross examination, one of the detectives testified that 

Balbuena was advised “of his rights,” and defense counsel did not 

challenge that statement. The trial court concluded that Balbuena was 

“given his Miranda rights at the beginning of the interview and he did 

expressly waive those rights.” In the appellate court, Balbuena 

challenged the voluntariness of his confession, but again did not assert 

that the Miranda warnings were inadequate. The appellate court stated, 

without explanation, that Balbuena “was advised of his Miranda rights 

and waived them.” 
BALBUENA V. SULLIVAN 19

received were deficient; we do not consider these arguments 

as a separate Sixth Amendment claim. 

Balbuena argues that the warnings he received were 

deficient because the detectives failed to advise him that he 

had the right to have an attorney present during questioning. 

See Miranda, 384 U.S. at 471 (holding that a suspect “must 

be clearly informed that he has the right to consult with a 

lawyer and to have the lawyer with him during 

interrogation”). He argues that the state appellate court’s 

failure to consider the detectives’ Miranda violation “was 

objectively unreasonable and contrary to precedent.”

The Miranda decision, and the warnings it requires as 

“absolute prerequisite[s] to interrogation,” 384 U.S. at 471, 

are long standing and clearly established federal law. See 

Williams, 529 U.S. at 412 (explaining that “clearly 

established Federal law” under § 2254(d)(1) “refers to the 

holdings . . . of [the Supreme] Court’s decisions as of the 

time of the relevant state-court decision”). Moreover, 

Balbuena correctly notes that this court has concluded that 

Miranda warnings are inadequate when they advise a 

defendant of the right to counsel before questioning, but do 

not advise a defendant of the right to counsel during

questioning. See United States v. Bland, 908 F.2d 471, 473–

74 (9th Cir. 1990); United States v. Noti, 731 F.2d 610, 615 

(9th Cir. 1984). But decisions of this court, including Bland

and Noti, are not “clearly established Federal law” for 

purposes of review under the AEDPA. See Williams, 

529 U.S. at 412. Instead, we must look to Supreme Court 

precedent as we consider whether the state appellate court’s 

determination that Balbuena’s confession was voluntary, 

based on the totality of the circumstances including the 

Miranda warnings, Withrow, 507 U.S. 693–94, was an 

unreasonable application of federal law.
20 BALBUENA V. SULLIVAN

Although the Supreme Court “has not dictated the words 

in which the essential information must be conveyed,”

Florida v. Powell, 559 U.S. 50, 60 (2010), the warnings must 

“reasonably convey to a suspect his rights as required by

Miranda.” Id. (modification, citation, and quotation marks 

omitted); see also Duckworth v. Eagan, 492 U.S. 195, 202 

(1989) (explaining that the Court has “never insisted that 

Miranda warnings be given in the exact form described in 

that decision.”). In Powell, the Supreme Court considered 

an argument similar to Balbuena’s argument—that a 

defendant’s Miranda warnings were constitutionally infirm 

because the detectives advised him that he had a right to an 

attorney before questioning, but they did not advise him that 

he had the right to have an attorney present during 

questioning. See 559 U.S. at 60–62. In Powell, the 

defendant was advised that he had “the right to talk to a 

lawyer before answering any of [their] questions” and “the 

right to use any of these rights at any time [he] want[ed] 

during this interview.” Id. at 54. The defendant, however, 

was not advised that he had the right to have an attorney 

present during questioning. See id.

The Court considered whether these Miranda warnings 

satisfied the requirement “that an individual held for 

questioning ‘must be clearly informed that he has the right 

to consult with a lawyer and to have the lawyer with him 

during interrogation.’” Id. at 60 (quoting Miranda, 384 U.S. 

at 471). The Court concluded that the challenged warnings 

“reasonably conveyed [the defendant’s] right to have an 

attorney present, not only at the outset of interrogation, but 

at all times.” Id. at 62. “To reach the opposite conclusion, 

i.e., that the attorney would not be present throughout the 

interrogation, the suspect would have to imagine an unlikely 

scenario: To consult counsel, he would be obliged to exit and 

reenter the interrogation room between each query.” Id.
BALBUENA V. SULLIVAN 21

Here, Balbuena was advised that he had the right to an 

attorney “prior to” questioning and was also advised that he 

“ha[d] the right to an attorney.”7

 Although these warnings 

are not identical to those described in Powell, there could be 

“fairminded disagreement,” see Harrington v. Richter, 

562 U.S. 86, 103 (2011), over whether the warnings in this 

case and in Powell were sufficiently similar to conclude that 

the warnings “reasonably conveyed” Balbuena’s right to 

have an attorney present at all times, Powell, 559 U.S. at 62. 

Therefore, the state court’s determination that Balbuena was 

advised of his Miranda rights was not “objectively 

unreasonable.” See Lockyer, 538 U.S. at 75. Based on the 

record in the state court, and applying the deferential review 

of the AEDPA, we conclude it was not unreasonable for the 

state court to conclude, under the totality of the 

circumstances including the Miranda warnings, that 

Balbuena’s confession was voluntary.

3.

Third, Balbuena asserts that the detectives used coercive 

techniques and compares the circumstances of his interview 

to Preston where, on direct appeal, this court held that a 

thirty-eight minute noncustodial interview of an eighteenyear old with an IQ of sixty-five was coercive and rendered 

his confession involuntary. 751 F.3d at 1028. Balbuena also 

compares this case to Rodriguez v. McDonald, where the 

court held that police officers’ suggestion that cooperation 

would result in leniency supported the conclusion that the 

suspect’s waiver of the right to counsel was involuntary. 

7 Balbuena was advised: “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 [sic] to you free of 

charge.”
22 BALBUENA V. SULLIVAN

872 F.3d 908, 923–24 (9th Cir. 2017). In Rodriguez, the 

defendant was fourteen years old and had Attention Deficit 

Hyperactivity Disorder and a “borderline” IQ. Id. at 923–

23. The officers continued to question the defendant even 

after he requested a lawyer, and “impressed upon [the 

defendant] that he would imminently be charged with 

murder.” Id. at 924.

Like the defendants in Preston and Rodriguez, Balbuena 

was a youth at the time of the interview, but unlike those 

defendants there is no evidence that Balbuena had a limited 

IQ or that he was “easily confused” and “highly suggestible 

and easy to manipulate.” See Preston, 751 F.3d at 1022, 

1028, 1030 (suggesting that the court might “reach a 

different conclusion regarding someone of normal 

intelligence”). Additionally, unlike the defendant in 

Rodriguez, Balbuena was advised of his Miranda rights and 

never asked to speak to an attorney.

On the other hand, as Balbuena argues, the detectives in 

this case used some of the same interview techniques 

employed in Preston and Rodriguez—such as suggesting 

alternative scenarios and making implied offers of leniency. 

See Preston, 751 F.3d at 1025–26; Rodriguez, 872 F.3d 

at 923–34. References to a suspect’s unborn child, in some 

circumstances, could also be considered a coercive interview 

tactic. See Brown v. Horell, 644 F.3d 969, 980–82 (9th Cir. 

2011) (deeming a confession involuntary in light of the 

defendant’s limited education, relatively young age (twentyone years), repeated references to his unborn child, and 

lengthy custodial interrogation).

But “even a strong case for relief does not mean the state 

court’s contrary conclusion was unreasonable.” Harrington 

v. Richter, 562 U.S. 86, 102 (2011). Instead, we consider the 

totality of the circumstances under a highly deferential 
BALBUENA V. SULLIVAN 23

standard to determine the reasonableness of the state court’s 

conclusion that Balbuena’s statements were voluntary. See

Yarborough, 541 U.S. at 664. The “totality of the 

circumstances” test is a general standard requiring “even 

greater deference under AEDPA.” Cook v. Kernan, 

948 F.3d 952, 968 (9th Cir. 2020).

To be sure, Balbuena’s youth and lack of experience with 

law enforcement, the time of the interview, the location of 

the interview, and the detectives’ tactics are all factors that 

could potentially support a conclusion that Balbuena’s 

confession was involuntary. See, e.g., Haley v. Ohio, 

332 U.S. 596, 599–600 (1948) (finding confession 

involuntary when a fifteen-year-old was questioned for five 

hours, between midnight until dawn, by “relays of” one or 

two officers at a time); Doody, 649 F.3d at 1009, 1012–13 

(finding confession involuntary when a seventeen-year-old 

was questioned for nearly thirteen hours by “tag teams” of 

two, three, and four detectives, while isolated, sleep 

deprived, and held in a room with only a straight-backed 

chair and no table to lean on, and relentlessly questioned 

even after he stopped responding, and told that he had to 

answer questions). But the circumstances of Balbuena’s 

interview are a far cry from Haley and Doody.

Contrary to Balbuena’s arguments that the detectives 

overbore his will, the video recording reveals that the tone 

of the interview was non-threatening. Balbuena spoke easily 

with the detectives, displayed a calm demeanor with no 

indication of fear or intimidation, and did not react when the 

detectives referred to his unborn child. He even 

spontaneously offered to show the detectives his tattoo. The 

interview lasted ninety minutes, including breaks and an 

approximately thirty-minute period when Balbuena was left 

alone in the room. The same two detectives conducted the 
24 BALBUENA V. SULLIVAN

interview and Balbuena was not subjected to “tag team” 

questioning, nor was he surrounded by multiple officers. 

Balbuena sat in a chair next to a table in a relaxed posture 

with his hands behind his head or with one arm slung over 

the back of chair for a large portion of the interview. About 

an hour into the interview, Balbuena yawned and leaned on 

the table when the detectives left the room, but he returned 

to a more upright posture and alternated between leaning on 

the table and sitting upright for the remainder of the 

interview.

In sum, the video recording of Balbuena’s interview, like 

the audio recording in Doody, is dispositive and supports the 

state court’s conclusion that Balbuena voluntarily confessed.

D.

We conclude that the state court’s voluntariness 

determination was not contrary to or an unreasonable 

application of federal law. The state court considered the 

totality of the circumstances, including the adequacy of the 

Miranda warnings. The state court did not unreasonably 

conclude that Balbuena was sixteen years old and considered 

his age, experience, and maturity as part of the totality of the 

circumstances of his confession. Finally, the state court did 

not unreasonably conclude that the circumstances of the 

interview, which included the detectives’ limited references 

to Balbuena’s unborn child, use of “alternative scenarios,” 

and implied offers of leniency, were not coercive. The video 

recording of the interview refutes Balbuena’s argument that 

those tactics overbore his will and rendered his confession 

involuntary. Therefore, applying AEDPA’s highly 

deferential standard for habeas corpus review, we conclude 

that the state court’s determination that Balbuena’s 

confession was voluntary was not unreasonable.
BALBUENA V. SULLIVAN 25

IV.

We next address whether the district court erred by 

denying Balbuena’s Rule 60(b) motion as an unauthorized 

second or successive petition under 28 U.S.C. 

§ 2244(b)(3)(A). Balbuena argues that the district court 

should have considered his Rule 60(b) motion as a motion to 

amend his habeas petition because he filed it while his appeal 

from the denial of his habeas petition remained pending 

before this court. Therefore, Balbuena contends, his claim 

was not “fully adjudicated.” Because Balbuena asserted a 

new claim in his Rule 60(b) motion despite the district 

court’s previously adjudicating his habeas petition on the 

merits, we conclude that the district court properly denied 

that motion as an unauthorized second or successive petition.

A.

AEDPA generally bars second or successive habeas 

petitions. Section 2244(b)(1) states that “[a] claim presented 

in a second or successive habeas corpus application under 

section 2254 that was presented in a prior application shall 

be dismissed.” 28 U.S.C. § 2244(b)(1). No exceptions exist 

to this statutory bar. See Goodrum v. Busby, 824 F.3d 1188, 

1193 (9th Cir. 2016) (explaining that claims asserted in an 

earlier petition “must be dismissed, period”).

“If a second or successive petition presents new claims 

that were not previously raised, those claims must be 

dismissed as well . . . .” Id. (citing 28 U.S.C. § 2244(b)(2)). 

Congress, however, provided two narrow exceptions to this 

statutory bar. The first applies if the “new claim relies on a 

new rule of constitutional law, made retroactive on collateral 

review.” 28 U.S.C. § 2244(b)(2)(A). The other applies if 

the new claim turns on newly discovered evidence that 
26 BALBUENA V. SULLIVAN

shows a high probability of actual innocence. Id.

§ 2244(b)(2)(B).

Before filing a second or successive petition, a petitioner 

must file a motion in the appropriate court of appeals and 

obtain an order authorizing the district court to consider the 

petition. See id. § 2244(b)(3)(A). This requirement is 

jurisdictional. See Cooper v. Calderon, 274 F.3d 1270, 

1274–75 (9th Cir. 2001) (per curiam). Here, the district 

court concluded that Balbuena attempted to assert a new 

claim through his Rule 60(b) motion and, therefore, it was 

“in truth a request to file an unauthorized second or 

successive habeas petition” because Balbuena had not 

obtained an order from this court authorizing the district 

court to consider it.

Balbuena argues that the district court mischaracterized 

his Rule 60(b) motion as a second or successive petition 

subject to § 2244, when it should have construed it as a 

motion to amend his habeas petition under Rules 15 and 

60(b). Balbuena’s argument turns on his characterization of 

his habeas petition as “pending” because “all proceedings, 

including appellate proceedings, have not been completed.”

Generally, “a petition will not be deemed second or 

successive unless, at a minimum, an earlier-filed petition has 

been finally adjudicated.” Goodrum, 824 F.3d at 1194 

(citing Woods v. Carey, 525 F.3d 886, 889 (9th Cir. 2008)). 

“Thus, when a petitioner files a new petition while his first 

petition remains pending, courts have uniformly held that the 

new petition cannot be deemed second or successive.” Id.

(citations omitted).

Moreover, a movant does not make a habeas corpus 

claim, and therefore does not file a successive petition, 

“when he merely asserts that a previous ruling which 
BALBUENA V. SULLIVAN 27

precluded a merits determination was in error—for example, 

a denial for such reasons as failure to exhaust, procedural 

default, or statute-of-limitations bar.” See Gonzalez v. 

Crosby, 545 U.S. 524, 532 n.4 (2005); see also Slack v. 

McDaniel, 529 U.S. 473, 485–86 (2000) (concluding that a 

habeas petition filed “after an initial habeas petition was 

unadjudicated on its merits and dismissed for failure to 

exhaust state remedies is not a second or successive 

petition”); Stewart v. Martinez-Villareal, 523 U.S. 637, 644–

45 (1998) (explaining that a habeas petition filed after an 

earlier petition was dismissed as premature was not a second 

or successive petition but part of the adjudication of the first 

petition).

Balbuena does not dispute that the district court denied 

his habeas petition on the merits. Instead, he argues that a 

habeas petition is not “finally adjudicated,” even after a 

district court has denied it on the merits, if that denial is 

pending on appeal. Therefore, we first consider whether 

Balbuena’s habeas petition was “pending” for purposes of 

§ 2244 because its denial was on appeal in this court when 

he filed his Rule 60(b) motion in the district court.

B.

To support his argument, Balbuena relies on two cases 

from this circuit, Woods and Goodrum, and attempts to 

distinguish another, Beaty v. Schriro, 554 F.3d 780 (9th Cir. 

2009) (published order). But we have not adopted the 

meaning of “finally adjudicated” that Balbuena advocates. 

Therefore, Balbuena’s reliance on Woods and Goodrum is 

misplaced, and his attempt to distinguish Beaty fails.

Furthermore, these cases do not address Rule 60(b) 

motions. As we explain later, this is a significant procedural 

distinction that we must consider in light of the Supreme 
28 BALBUENA V. SULLIVAN

Court’s holding in Gonzalez that a Rule 60(b) motion that 

asserts a claim on the merits is in effect a habeas petition and 

is subject to requirements of § 2244(b) for successive 

petitions. See 545 U.S. at 531–32.

1.

Contrary to Balbuena’s characterization of Woods and 

Goodrum, we have not held that a habeas petition is pending, 

and thus not “fully adjudicated,” simply because the denial 

of that petition is before this court on appeal. In Woods, we 

considered whether § 2244(b) barred a pro se petitioner’s 

second habeas petition, which he filed while his first petition 

was still pending in the district court. 525 F.3d at 887. We 

held that the district court should have construed the second 

petition as a motion to amend the petition that was still 

pending in the district court. Id. at 890. But we did not 

consider how to treat a second petition that is filed while a 

prior petition is pending on appeal. Therefore, Woods

establishes only that a petition that is still pending in the 

district court is not final for purposes of § 2244. It offers no 

support for Balbuena’s position.

Our decision in Goodrum similarly fails to support 

Balbuena’s argument. There, we explained—interpreting 

Woods—that if a petitioner files a second petition in the 

district court while his first petition is still pending in that 

court, the district court must rule on the second petition as a 

motion to amend under Rule 15. 824 F.3d at 1195. If a 

petitioner files an application for leave to file a second or 

successive petition in this court and “informs us that an 

earlier-filed petition remains pending” in the district court, 

we must construe that application as a motion to amend, but 

“we lack[] authority to rule on such a motion in the first 

instance.” Id. Instead, “[w]e can issue an order advising the 

pro se petitioner that his application is being denied as 
BALBUENA V. SULLIVAN 29

unnecessary on the ground that the new petition he seeks to 

file is not second or successive and that he is therefore free 

to file it in the district court,” or if the new petition is 

attached to the application, as our rules require, “we can 

transfer the petition to the district court.” Id. But our 

decision in Goodrum does not resolve the question here: 

whether a petition should be considered “finally 

adjudicated” when its denial is pending on appeal.

If our decisions in Woods and Goodrum do not support 

Balbuena’s position, then our decision in Beaty defeats it. 

There, after the district court denied the petitioner’s habeas 

petition in the first instance and on remand after a first 

appeal, he filed a motion to amend his petition and argued 

that it should be considered part of his original habeas 

proceeding. Beaty, 554 F.3d at 782. The district court 

denied the motion to amend, the petitioner appealed again, 

and while that appeal was pending, he applied to file a 

second or successive petition, arguing his additional claims 

should be considered as part of his original habeas 

proceeding. Id. We rejected the petitioner’s arguments and 

“decide[d] that [he] cannot use Woods to amend his petition 

after the district court has ruled and proceedings have begun 

in this court . . . .” Id. at 783 n.1. Because the petitioner did

not move to amend until “after the district court had denied 

his claims,” he was required to satisfy the requirements for 

successive petitions under § 2244(b). Id. at 782–83.

Here, like the petitioner in Beaty, Balbuena sought to add 

a new claim after the district court denied his petition and he 

appealed that denial. Applying Beaty, the district court 

properly considered Balbuena’s Rule 60(b) motion a second 

or successive application for habeas corpus relief. Because 

Balbuena neither sought, nor obtained, authorization from 

this court to file a second or successive habeas petition, the 
30 BALBUENA V. SULLIVAN

district court lacked jurisdiction to consider Balbuena’s new 

claim. See 28 U.S.C. § 2244(b)(3); Cooper, 274 F.3d 

at 1274–75.

2.

Despite Beaty’s clear command, Balbuena urges this 

court to follow the Second Circuit’s decisions in Ching v. 

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

United States, 408 F.3d 116 (2d Cir. 2005), as well as the 

Third Circuit’s decision in United States v. Santarelli, 

929 F.3d 95 (3d Cir. 2019). In contrast to our holding in 

Beaty, each of these cases concluded that a habeas petition 

is not “fully adjudicated” while its denial is pending on 

appeal and, therefore, a second petition filed while that 

appeal is pending is not a second or successive petition under 

§ 2244. Santarelli, 929 F.3d at 104–05; Whab, 408 F.3d 

at 118; Ching, 298 F.3d at 175. To the extent these cases 

conflict with Beaty, we decline to follow them. See United 

States v. Hayes, 231 F.3d 1132, 1139–40 (9th Cir. 2000).

Moreover, these cases are distinguishable because they 

do not address Rule 60(b) motions or apply Gonzalez.

8 In

Santarelli and Ching, after the appellate courts reversed and 

remanded the denial of the petitioners’ initial habeas 

petitions, the initial and second petitions were before the 

district courts simultaneously. Santarelli, 929 F.3d at 107; 

Ching, 298 F.3d at 176. Therefore, the district courts could 

apply Rule 15 and consider the petitioners’ second petitions 

8 The Second Circuit issued its decisions in Ching and Whab before 

the Supreme Court’s decision in Gonzalez. In Santarelli, the Third 

Circuit distinguished Gonzalez because the petitioner’s motion to file a 

second or successive petition was not a Rule 60(b) motion. 929 F.3d 

at 105.
BALBUENA V. SULLIVAN 31

as motions to amend the initial petitions.9 Santarelli, 

929 F.3d at 105; Ching, 298 F.3d at 179–80.

In Whab, the court of appeals denied a certificate of 

appealability for the petitioner’s initial habeas petition and 

transferred his motion seeking leave to file a second petition 

to the district court, concluding that the subsequent petition 

was not second or successive.10 408 F.3d at 118, 120. 

However, the court distinguished Ching because, after it 

denied the certificate of appealability, “the district court 

never had [Whab’s] two petitions before it simultaneously.” 

Id. at 119. The court explained that it 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.” 

Id. Thus, the court apparently concluded that Rule 15 would 

not apply on remand, but it did not address Rule 60 or any 

other potentially applicable rules or procedures.

Here, we entered a limited remand under Federal Rule of 

Appellate Procedure 12.1(b) for the district court to consider 

9 The courts explained that when the denial of a habeas petition is 

pending on appeal, the district court lacks jurisdiction to consider a 

subsequent petition as a motion to amend. Santarelli, 929 F.3d at 106 

(citing Griggs v Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)); 

Ching, 298 F.3d at 180, n.5 (same). The Third Circuit concluded that, 

given these “jurisdictional dynamics,” a motion to file a subsequent 

habeas petition, filed when the denial of an initial petition is pending on 

appeal, should be construed as a motion to amend and stayed in the 

district court pending the resolution of the appeal. Santarelli, 929 F.3d 

at 105-06. Both courts, however, concluded that if the district court’s 

denial of an initial petition is affirmed, the petitioner must satisfy the 

requirements applicable to second or successive petitions. Id. at 106; 

Ching, 298 F.3d at 180 n.5.

10 Whab involved a petition under 28 U.S.C. § 2255, but 

§ 2244(a)(3)(A) also applies to second or successive § 2255 petitions.
32 BALBUENA V. SULLIVAN

Balbuena’s Rule 60(b) motion, but we retained jurisdiction 

over the denial of his habeas petition. Unlike Ching and 

Santarelli, the district court could not apply Rule 15; instead, 

it could only consider Balbuena’s new claim if it set aside its 

earlier judgment under Rule 60(b). See Lindauer v. Rogers, 

91 F.3d 1355, 1357 (9th Cir. 1996) (“[O]nce judgment has 

been entered in a case, a motion to amend the complaint can 

only be entertained if the judgment is first reopened under a 

motion brought under Rule 59 or 60.”). But, as we explain 

next, Gonzalez establishes that Balbuena’s Rule 60(b) 

motion was a disguised habeas petition, and the district court 

properly denied it as an unauthorized second or successive 

petition.

C.

Under Rule 60(b), a party may seek relief from a final 

judgment under limited circumstances, including fraud, 

mistake, newly discovered evidence, or any other reason that 

justifies relief. Fed. R. Civ. P. 60(b). In Gonzalez, the 

Supreme Court explained that “Rule 60(b), like the rest of 

the Rules of Civil Procedure, applies in habeas corpus 

proceedings under 28 U.S.C. § 2254, only ‘to the extent that 

[it is] not inconsistent with’ applicable federal statutory 

provisions and rules.” 545 U.S. at 529 (alteration in original) 

(footnote omitted) (quoting 28 U.S.C. § 2254). Therefore, 

the Court considered “whether, in a habeas case, [Rule 

60(b)] motions are subject to the additional restrictions that 

apply to ‘second or successive’ habeas corpus petitions 

under the provisions of [AEDPA], codified at 28 U.S.C. 

§ 2244(b).” Id. at 526.

To answer this question, the Court first considered 

“whether a Rule 60(b) motion filed by a habeas petitioner is 

a ‘habeas corpus application’ as the statute uses that term,” 

id. at 530 (quoting 28 U.S.C. § 2244(b)), and determined that 
BALBUENA V. SULLIVAN 33

“an ‘application’ for habeas relief is a filing that contains one 

or more ‘claims,’” id. The Court then defined a “claim” as 

“an asserted federal basis for relief from a state court’s 

judgment of conviction.” Id. Thus, a Rule 60(b) motion 

asserts a claim if it “seeks to add a new ground for relief” or 

“attacks the federal court’s previous resolution of a claim on 

the merits.” Id. at 532.

Furthermore, a Rule 60(b) motion that asserts a 

previously omitted claim based on excusable neglect, or 

argues newly discovered evidence supports a previously 

denied claim, or argues a change in substantive law justifies 

relief from the previous denial of a claim, “is in substance a 

successive habeas petition and should be treated 

accordingly.” Id. at 531; see also Jones, 733 F.3d at 834 

(“[A] motion that . . . ‘in effect asks for a second chance to 

have the merits determined favorably’ raises a claim that 

takes it outside the bounds of Rule 60(b) and within the 

scope of AEDPA’s limitations on second or successive 

habeas corpus petitions.” (quoting Gonzalez, 545 U.S. at 532 

n.5)).

The Court explained that “[a] habeas petitioner’s filing 

that seeks vindication of such a claim is, if not in substance 

a ‘habeas corpus application,’ at least similar enough that 

failing to subject it to the same requirements would be 

‘inconsistent with’ the statute.” Gonzalez, 545 U.S. at 531 

(quoting 28 U.S.C. § 2254 Rule 11)). Therefore, “[u]sing 

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 requirement that a new claim be dismissed unless 

it relies on either a new rule of constitutional law or newly 

discovered facts.” Id. Using Rule 60(b) to present such 

claims would also “impermissibly circumvent the 
34 BALBUENA V. SULLIVAN

requirement that a successive habeas petition be precertified 

by the court of appeals as falling within an exception to the 

successive-petition bar.” Id. at 532. Therefore, 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). See 

id. at 531–32.

But if no claim is presented, then a Rule 60(b) motion 

should not be treated like a habeas corpus petition. Id. 

at 533. A Rule 60(b) motion is not a subsequent habeas 

petition when it “attacks, not the substance of the federal 

court’s resolution of a claim on the merits, but some defect 

in the integrity of the habeas proceedings.” Id. at 532; see 

also Jones, 733 F.3d at 836 (“Gonzalez firmly stands for the 

principle that new claims cannot be asserted under the 

format of a Rule 60(b) motion, and instead Rule 60(b) is 

properly applied when there is some problem going to the 

integrity of the court process on the claims that were 

previously asserted.”).

Balbuena distinguishes Gonzalez by characterizing it as 

holding that “an applicant’s Rule 60(b) motion may be, not

must be, a successive habeas application.” This argument is 

technically correct; Gonzalez explained that not all Rule 

60(b) motions are disguised habeas petitions. See 545 U.S. 

at 533 (“When no ‘claim’ is presented, there is no basis for 

contending that the Rule 60(b) motion should be treated like 

a habeas corpus application.”). But this argument does not 

explain why Balbuena’s Rule 60(b) motion is not a disguised 

habeas petition. Balbuena acknowledges that the Miranda

claim he asserts in his Rule 60(b) motion is a new claim.11 

11 Balbuena argued to the district court that he should receive relief 

under Rule 60(b) because his state court counsel failed to raise his 

Miranda claim. But “an attack based on the movant’s own conduct, or 
BALBUENA V. SULLIVAN 35

Therefore, Balbuena’s Rule 60(b) motion “seeks to add a 

new ground for relief,” and we must conclude that it is a 

disguised habeas petition. See id. at 532.

D.

But does our conclusion that Balbuena’s Rule 60(b) 

motion is a disguised habeas petition mean that it is a second 

or successive petition and subject to the requirements of 

§ 2244(b)? Balbuena states that Gonzalez “did not address 

when a second-in-time application constitutes a ‘successive’ 

petition under the statute nor when a petition is ‘finally’

adjudicated.” Thus, he appears to argue that even if his Rule 

60(b) motion is a disguised habeas petition, it is not a second 

or successive petition under § 2244(b) because the denial of 

his initial petition was pending on appeal. But, as we set 

forth next, neither the Supreme Court’s reasoning in 

Gonzalez, nor its further explanation of Rule 60(b) motions 

in Banister v. Davis, ___ U.S. ___, 140 S. Ct. 1698 (2020), 

support this argument. And we have not identified any court 

that has adopted it.

1.

First, the petitioner in Gonzalez filed his Rule 60(b) 

motion after the conclusion of his appeal from his initial 

habeas petition, 545 U.S. at 527, but the Court’s analysis did 

not turn on, or even address, the timing of the Rule 60(b) 

motion, id. at 530–32. Instead, the Court focused on the 

nature of the motion, concluding that a Rule 60(b) motion 

his habeas counsel’s omissions . . . ordinarily does not go to the integrity 

of the proceedings.” Gonzalez, 545 U.S. at 532 n.5. Therefore, the 

district court correctly concluded that Balbuena was not alleging a defect 

in the federal habeas proceedings but was instead asking to amend his 

petition to add a new claim.
36 BALBUENA V. SULLIVAN

that asserts a claim on the merits is a disguised habeas 

petition and “in substance a successive habeas petition [that] 

should be treated accordingly.” Id. at 531. However, a Rule 

60(b) motion that does not assert a claim, but instead attacks 

the integrity of the proceedings, is a proper Rule 60(b) 

motion not subject to § 2244(b). Id. at 532–33. In contrast 

to Balbuena’s contention, Gonzalez does not suggest 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.

2.

Second, the Supreme Court’s recent decision in Banister

further supports the conclusion that Rule 60(b) motions 

asserting new claims, regardless of when they are filed, are 

successive habeas petitions subject to the requirements of 

§ 2244(b). See 140 S. Ct. at 1709–10. In Banister, the Court 

held that Rule 59(e) motions to alter or amend a judgment 

are not successive habeas petitions. Id. at 1702. In reaching 

that conclusion, the Court distinguished Gonzalez and its 

holding that a Rule 60(b) motion asserting a claim is a 

habeas petition. Id. at 1709 (explaining that a Rule 60(b) 

motion “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’” (citations 

omitted)).

The Court began with the history of Rule 59(e) and Rule 

60(b) motions, explaining that “Rule 59(e) derives from a 

common-law court’s plenary power to revise its judgment 

during a single term of court, before anyone could appeal.” 

Id. But Rule 60(b), in contrast,

codifies various writs used to seek relief from 

a judgment at any time after the term’s 

expiration—even after an appeal had (long 
BALBUENA V. SULLIVAN 37

since) concluded. Those mechanisms did not 

(as the term rule did) aid the trial court to get 

its decision right in the first instance; rather 

they served to collaterally attack its already 

completed judgment.

Id. (emphasis added). The Court further explained that while 

pre-AEDPA cases seldom denied Rule 59(e) motions for 

raising repetitive claims, they regularly denied Rule 60(b) 

motions on that basis. Id. This difference was because preAEDPA “courts recognized Rule 60(b)—as contrasted to 

Rule 59(e)—as threatening an already final judgment with 

successive litigation.” Id.

In addition, the Court explained that “Rule 60(b) motions 

can arise long after the denial of a prisoner’s initial 

petition—depending on the reason given for relief, within 

either a year or a more open-ended ‘reasonable time.’” Id. 

at 1710 (quoting Fed. R. Civ. P. 60(c)(1)). The Court noted 

that in Gonzalez the petitioner filed his Rule 60(b) motion 

more than a year after his appeal from his initial petition 

ended. Id. (citing Gonzalez, 545 U.S. at 527). But, as the 

Court explained, “[g]iven that extended timespan, Rule 

60(b) inevitably elicits motions that go beyond Rule 59(e)’s 

mission of pointing out the alleged errors in the habeas 

court’s decision.” Id. And the Court pointed out that “the 

appeal of a Rule 60(b) denial is independent of the appeal of 

the original petition,” and “does not bring up the underlying 

judgment for review.” Id. (citation omitted).

Finally, the Court summarized why a motion to set aside 

a judgment under Rule 60(b) motion, if it asserts claims, is a 

successive petition, while a motion to set aside a judgment 

under Rule 59(e) is not:
38 BALBUENA V. SULLIVAN

In short, a Rule 60(b) motion differs from a 

Rule 59(e) motion in its remove from the 

initial habeas proceeding. A Rule 60(b) 

motion—often distant in time and scope and 

always giving rise to a separate appeal—

attacks an already completed judgment. Its 

availability threatens serial habeas litigation; 

indeed, without rules suppressing abuse, a 

prisoner could bring such a motion endlessly.

Id. None of these reasons for distinguishing Rule 59(e) 

motions from Rule 60(b) motions—and concluding that 

Rule 60(b) motions that assert claims are disguised habeas 

petitions, while Rule 59(e) motions are not—is in any way 

affected by or related to the timing of when a Rule 60(b) 

motion is filed.

The 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 and to such motions 

filed after the appeal is completed. Therefore, the Court’s 

explication of Rule 60(b) motions in Banister undermines 

Balbuena’s arguments to distinguish Gonzalez.

3.

Third, Balbuena does not cite, and we have not 

identified, any case that distinguishes Gonzalez on the basis 

Balbuena suggests: A Rule 60(b) motion, although a 

disguised habeas petition, is not a second or successive 

petition if it was filed during the appeal of an earlier petition. 

To the contrary, the Seventh Circuit has rejected this 

argument. See Phillips v. United States, 668 F.3d 433, 435 

(7th Cir. 2012). In Phillips, while the petitioner’s appeal 
BALBUENA V. SULLIVAN 39

from the denial of his § 2255 motion was pending, he filed a 

Rule 60(b) motion for relief from the judgment. Id. at 434. 

Applying Gonzalez, the court concluded that the Rule 60(b) 

motion sought relief on the merits and was an application for 

collateral review. Id. at 435. The court also concluded that 

the Rule 60(b) motion was a second application for habeas 

relief, stating that to hold otherwise “would drain most force 

from the time-and-number limits in § 2244 and § 2255.” 

Id.

12

Similarly, in Santarelli the Third Circuit distinguished 

Gonzalez because the petitioner’s motion to file a second or 

successive petition was not a Rule 60(b) motion and because 

of “the inherent nature of Rule 60(b) motions.” 929 F.3d 

at 105. The Third Circuit stated that its precedent was 

consistent with the Seventh Circuit’s holding in Phillips that 

a Rule 60(b) motion, addressed to the merits, is a second or 

successive petition, even if filed while an appeal from an 

initial petition is pending. Id. The court explained that under 

its precedent a Rule 60(b) motion is a second or successive 

petition: “[A] Rule 60(b) motion that raises a claim attacking 

the underlying criminal judgment must be a second or 

successive petition because, the judgment having become 

final, the petitioner has expended the one full opportunity to 

seek collateral review that AEDPA ensures.” Id. (alteration 

in original) (quoting Blystone v. Horn, 664 F.3d 397, 413 (3d 

Cir. 2011)). Therefore, although Balbuena argues that we 

12 Because it had not been invoked, the court rejected any reliance 

on Seventh Circuit Rule 57, which allows a district judge to request a 

remand to “correct errors that affect[ed] the proceedings.” See Phillips, 

668 F.3d at 436. The court explained the steps to invoke Rule 57, which 

require the district court to indicate that it is inclined to grant the Rule 

60(b) motion, and stated that “[o]nly this combination of steps renders 

the judgment non-final and allows a modification while the appeal is 

pending.” Id.
40 BALBUENA V. SULLIVAN

should follow the reasoning of Santarelli, as it turns out, the 

Third Circuit’s application of Gonzalez does not support his 

position that his Rule 60(b) motion was not a successive 

petition.

We conclude that the district court correctly applied 

Beaty and Gonzalez and denied Balbuena’s Rule 60(b) 

motion as an unauthorized second or successive habeas 

petition. In addition, we have identified no authority from 

our sister circuits that supports Balbuena’s argument that his 

Rule 60(b) motion, even if considered a disguised habeas 

petition, was not a successive petition. Accordingly, we 

affirm the district court’s order denying the motion.

V.

Applying the deferential standards of federal habeas 

review, we conclude that the state court reasonably 

concluded that Balbuena’s confession was voluntary, and we 

affirm the district court’s denial of the habeas petition. 

Because Balbuena’s Rule 60(b) motion sought to add a new 

claim after the district court adjudicated his habeas petition 

on the merits, we conclude that the district court correctly 

denied the motion, and we affirm.

AFFIRMED.

W. FLETCHER, Circuit Judge, concurring in the result:

I agree with my colleagues that the state court did not 

unreasonably conclude that Balbuena’s confession was 

voluntary. I also agree that Beaty v. Schriro, 554 F.3d 780, 

783 n.1 (9th Cir. 2009), requires us to hold that Balbuena’s 

Rule 60(b) motion was a second or successive habeas 
BALBUENA V. SULLIVAN 41

petition, even though it was filed while an appeal on his 

initial habeas petition was awaiting adjudication in our court. 

I write separately to register my disagreement with Beaty

and to urge the Supreme Court to recognize the circuit split 

and to adopt the rule stated in Ching v. United States, 

298 F.3d 174, 178 (2d Cir. 2002), and United States v. 

Santarelli, 929 F.3d 95, 104–05 (3d Cir. 2019).

“AEDPA places strict limitations on the ability of a 

petitioner held pursuant to a state judgment to file a second 

or successive federal petition for writ of habeas corpus.” 

Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017); see 

28 U.S.C. § 2244(b); see also Goodrum v. Busby, 824 F.3d 

1188, 1193 (9th Cir. 2016) (providing background). The 

phrase “second or successive” is undefined by AEDPA. It 

is a “term of art” and “does not simply refer to all [habeas] 

applications filed second or successively in time.” 

Magwood v. Patterson, 561 U.S. 320, 331–32 (2010) 

(internal quotation marks, alterations, and citation omitted). 

Over time, “the rule that emerged is that a petition will not 

be deemed second or successive unless, at a minimum, an 

earlier-filed petition has been finally adjudicated.” 

Goodrum, 824 F.3d at 1194. The question before us is 

whether an initial habeas petition has been “finally 

adjudicated” when the petition still awaits adjudication on 

appeal.

In Ching, the Second Circuit held that a habeas petition 

still pending on appeal has not been finally adjudicated 

within the meaning of the limitation on second or successive 

petitions. The petitioner in Ching filed a motion under 

28 U.S.C. § 2255, attacking his conviction in federal district 

court. The district court denied the motion, and Ching 

appealed. While his appeal was pending before the Second 

Circuit (which eventually vacated and remanded the district 
42 BALBUENA V. SULLIVAN

court’s denial), Ching filed a habeas petition under 28 U.S.C. 

§ 2241 in district court. The district court treated the § 2241 

petition as a motion under § 2255, concluded that it was 

second or successive, and denied it. The Second Circuit 

agreed that the § 2241 petition should have been treated as a 

motion under § 2255 but disagreed that it was a second or 

successive motion. The court held that “the district court 

should [have] construe[d] the second § 2255 motion as a 

motion to amend the pending § 2255 motion.” 298 F.3d 

at 177. The court wrote:

We find that adjudication of Ching’s initial 

motion was not yet complete at the time he 

submitted his second § 2255 motion. The 

denial of [his first motion] was still pending 

on appeal before this Court and no final 

decision had been reached with respect to the 

merits of Ching’s claim.

Id. at 178; see also Grullon v. Ashcroft, 374 F.3d 137, 140 

(2d Cir. 2004) (extending Ching’s holding to cover 

successive petitions filed under § 2241); Whab v. United 

States, 408 F.3d 116, 118–19 (2d Cir. 2005) (applying 

Ching’s holding where the district court did not have the 

earlier- and later-filed petitions before it simultaneously).

We followed Ching in Woods v. Carey, 525 F.3d 886 

(9th Cir. 2008). Woods filed a pro se habeas petition under 

28 U.S.C. § 2254 in federal district court. Before that 

petition was denied, Woods filed another pro se habeas 

petition in the district court under § 2254. The district court 

dismissed Woods’s petition as second or successive. We 

reversed, writing, “[W]e follow the persuasive reasoning of 

the Second Circuit.” Id. at 890. We held that the district 

court “should have construed Woods’s [second-in-time] pro 
BALBUENA V. SULLIVAN 43

se habeas petition as a motion to amend his pending habeas 

petition,” after which the district court would have had “the 

discretion to decide whether the motion to amend should be 

granted.” Id. (italicization omitted).

We reversed course in Beaty. Beaty filed a habeas 

petition under § 2254 in federal district court, which denied 

the petition. Beaty sought a certificate of appealability from 

us. We denied a certificate of appealability on everything 

except a claim as to the voluntariness of his confession; we 

remanded that claim to the district court for an evidentiary 

hearing. On remand, the district court denied the claim. 

Beaty requested that the district court permit him to amend 

his original habeas petition “to include a plethora of other 

claims.” Beaty, 554 F.3d at 782. The district court denied 

permission to amend, and Beaty appealed. While Beaty’s 

second appeal was pending before us, Beaty sought to add 

still more claims. We held Beaty’s additional claims were 

second or successive.

In a footnote, we wrote that while we had “quoted 

extensively from Ching” in Woods, the facts in Woods did 

not pose the same question as in Ching. Id. at 783 n.1. The 

question in Woods was whether a new petition was second 

or successive when the first petition was still pending in the 

district court. The question in Ching was whether a new 

petition was second or successive when a denial of the first 

petition had been appealed and that appeal was still pending 

in the court of appeal. While not disagreeing with the result 

we had reached in Woods, we disagreed with the holding of 

Ching. We wrote, “Today, we decide that Beaty cannot use 

Woods to amend his petition after the district court has ruled 

and proceedings have begun in this court . . . .” Id.

The Sixth, Seventh, and Tenth Circuits have agreed with 

our ruling in Beaty. See Moreland v. Robinson, 813 F.3d 
44 BALBUENA V. SULLIVAN

315, 324 (6th Cir. 2016); Phillips v. United States, 668 F.3d 

433, 435 (7th Cir. 2012); Ochoa v. Sirmons, 485 F.3d 538, 

540 (10th Cir. 2007). Meanwhile the Third Circuit has 

agreed with Ching, similarly concluding that adjudication is 

final for the purposes of § 2244(b) only once an appeal has 

been finally adjudicated. See Santarelli, 929 F.3d at 104 

(holding that “a subsequent habeas petition is not ‘second or 

successive’ under AEDPA when a petitioner files such a 

petition prior to her exhaustion of appellate remedies with 

respect to the denial of her initial habeas petition”) 

(emphasis added).

We made a mistake in Beaty. First, as a matter of 

ordinary language, it is hard to conclude that an initial 

habeas petition has been “finally adjudicated” when, in fact, 

it has not been. If a district court denies a habeas petition 

and the petitioner appeals, there is no final adjudication until 

the appeal has been finally adjudicated.

Second, as a practical matter, the rule followed by the 

Second and Third Circuits in Ching and Santarelli will not 

result in a flood of late and procedurally abusive claims. 

Any new claim that is deemed an amendment to the original 

petition must satisfy the demanding relation-back 

requirement of Federal Rule of Civil Procedure 15(c)(2), as 

interpreted by the Supreme Court in Mayle v. Felix, 545 U.S. 

644 (2005).

Third, nothing in the decisions of the Supreme Court 

compels our interpretation of “final adjudication” in Beaty. 

As the Second Circuit observed in Ching, 298 F.3d at 178, 

and as discussed by the Supreme Court in Magwood, 

561 U.S. at 331–33, at least three cases decided by the 

Supreme Court suggest that Ching and Santarelli got it right. 

In the words of then-Judge Sotomayor, “These cases instruct 

that a prior district court judgment dismissing a habeas 
BALBUENA V. SULLIVAN 45

petition does not conclusively establish that there has been a 

final adjudication of that claim.” Ching, 298 F.3d at 178.

In Stewart v. Martinez-Villareal, 523 U.S. 637, 642–44 

(1998), the Supreme Court treated a later-filed habeas 

petition as part of an earlier application where the later-filed 

petition was premised on a newly ripened claim under Ford 

v. Wainwright, 477 U.S. 399 (1986). The Ford claim had 

been previously dismissed as premature by the district court. 

In Panetti v. Quarterman, 551 U.S. 930, 937, 942–45 (2007), 

the Court addressed a related but distinct circumstance 

where a habeas petition raised a Ford claim that had not been 

presented in an initial petition. The Court permitted the 

second petition—even though the initial petition had been 

adjudicated by the district court and Fifth Circuit Court of 

Appeals, and a petition for certiorari had been denied by the 

Supreme Court—because the Ford claim would have been 

unripe had the petitioner sought to present it in his first 

petition. In Slack v. McDaniel, 529 U.S. 473, 488 (2000), 

the Court declined to find a habeas petition second or 

successive where the district court had dismissed the first 

petition for failure to exhaust state remedies and where the 

new petition raised claims that had not been included in the 

first petition.

Finally, neither Gonzalez v. Crosby, 545 U.S. 524 

(2005), nor Banister v. Davis, 590 U.S. ___, 140 S. Ct. 1698 

(2020), pose the barrier that today’s opinion suggests. In 

Gonzalez, the Supreme Court considered whether a Rule 

60(b) motion that adds a claim, such as Balbuena’s, is a 

“‘habeas corpus application’ as the statute uses that term.” 

Id. at 530 (quoting 28 U.S.C. § 2244(b)). The Court held 

that if a Rule 60(b) motion advances one or more “claims,” 

such as a new ground for relief, it is not a true Rule 60(b) 

motion. Rather, it is “in substance” a habeas corpus 
46 BALBUENA V. SULLIVAN

application within the meaning of § 2244(b). Id. at 531.

Accordingly, Gonzalez requires us to hold that Balbuena’s 

Rule 60(b) motion is, in fact, a disguised habeas application.

The question in Banister was whether a Rule 59(e) 

motion is a second or successive application within the 

meaning of § 2244(b). The Court held that it is not. The 

Court distinguished a Rule 59(e) motion from a Rule 60(b) 

motion. It wrote, in language quoted by my colleagues, 

supra p. 38:

In short, a Rule 60(b) motion differs from a 

Rule 59(e) motion in its remove from the 

initial habeas proceeding. A Rule 60(b) 

motion—often distant in time and scope and 

always giving rise to a separate appeal—

attacks an already completed judgment. Its 

availability threatens serial habeas litigation; 

indeed, without rules suppressing abuse, a 

prisoner could bring such a motion endlessly.

Banister, 590 U.S ___, 140 S. Ct. at 1711. Just so. For that 

reason, and as the Court explained in Gonzalez, a Rule 60(b) 

motion that seeks to add a claim to a previously filed habeas 

application is not, in fact, a Rule 60(b) motion. It is, instead, 

a disguised habeas application subject to the bar on “second 

or successive” applications. Thus, Banister distinguishes 

between Rule 59(e) and Rule 60(b) motions based on the 

analysis in Gonzalez. Banister otherwise has little relevance 

for Balbuena’s case.

Ching, Whab, and Santarelli are consistent with 

Gonzalez and Banister. Gonzalez answers the question 

whether a Rule 60(b) motion seeking to add a claim to a 

habeas application is a true Rule 60(b) motion or is a 

disguised habeas application. Under Gonzalez, such a 
BALBUENA V. SULLIVAN 47

motion clearly is a habeas application. But Gonzalez does 

not answer the question whether it is a “second or 

successive” habeas application under § 2244(b). See 

Phillips, 668 F.3d at 435 (“Under Gonzalez, the motion was 

an ‘application’ for collateral relief. But was it a second

application?”). That question is answered by Ching, Whab, 

and Santarelli. In my view, it is their answer to that 

question—not ours in Beaty—that is correct.

I write separately to encourage the Supreme Court to 

resolve the conflict in the circuits. I am optimistic, if the 

Court takes this or a similar case, that it will agree with the 

Second and Third Circuits rather than ours.