United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
September 23, 2009, this court dismissed petitioner Michael
Bruce Bynoe's counseled, first-amended § 2254 habeas
petition without prejudice because all grounds were
unexhausted and entered judgment (ECF Nos. 41, 42). Now,
seven years later, petitioner has filed a motion for relief
from final judgment and to reopen the case (ECF No. 52).
Respondents opposed (ECF No. 57), and Bynoe replied (ECF No.
58). Bynoe also filed supplemental authority, and respondents
filed a response (ECF Nos. 59-1, 64).
Procedural History & Background
October 28, 1999, Bynoe entered a plea of guilty but mentally
ill to one count of lewdness with a minor under fourteen
(exhibit 26). The state district court sentenced him to
life with the possibility of parole after ten years and
entered a judgment of conviction on March 7, 2000. Exh. 33.
Bynoe took no further action in state court before initiating
this federal habeas petition.
Bynoe dispatched his federal habeas petition for mailing on
January 2, 2007 (ECF No. 2). This court appointed counsel,
and Bynoe filed a counseled, first-amended petition on April
28, 2008 (ECF No. 17). Thereafter, this court issued an order
directing Bynoe to show cause and demonstrate such proof that
the petition should not be dismissed as time-barred and for
failure to exhaust state remedies (ECF No. 24). In response,
Bynoe claimed that that he was entitled to equitable tolling
and that his claims were technically exhausted because they
would be procedurally defaulted if he returned to state court
(ECF No. 28). This court did not address the timeliness
issue, but rejected Bynoe's technical exhaustion argument
(ECF No. 29). This court explained that Bynoe could choose to
submit a stipulation that his claims should be dismissed as
procedurally defaulted or seek “other appropriate
moved for stay and abeyance (ECF No. 30). Respondents opposed
on multiple grounds, including asserting that a district
court did not have discretion to stay a wholly unexhausted
petition, that Bynoe failed to demonstrate good cause for his
failure to exhaust any claims, that his claims are plainly
meritless, and that he engaged in intentionally dilatory
tactics (ECF No. 34).
court concluded that a wholly unexhausted petition was not
eligible for the stay and abey procedure outlined in
Rhines v. Weber, 544 U.S. 269 (2005). The court thus
denied Bynoe's motion to stay and dismissed the petition
without prejudice on September 23, 2009 (ECF No. 41). This
court denied a certificate of appealability (ECF No. 46). The
Ninth Circuit also denied a certificate of appealability (ECF
No. 49), and the Supreme Court denied Bynoe's petition
for a writ of certiorari on February 21, 2012. Supreme Court
Case No. 11-7743.
February 7, 2012, Bynoe filed a pro se state
petition for writ of habeas corpus. Exh. 145. However, he did
not raise any of the grounds that he set forth in his federal
petition. The state district court dismissed the
petition as untimely. Exh. 131, pp. A014-15. The Nevada
Supreme Court affirmed, denied rehearing, and denied en
banc reconsideration. Exhs. 134, 135, 136. Remittitur
issued on July 1, 2014. Exh. 138.
through counsel, now moves the court for relief from final
judgment pursuant to FRCP 60(b)(6) on the basis that this
court erred in denying his motion to stay his wholly
unexhausted petition (ECF No. 52).
Legal Standard - AEDPA and Rule 60(b) Motions
Fed.R.Civ.P. 60(b) the court may relieve a party from a final
judgment or order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
otherwise vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
motion under subsections (b)(4-6) must be brought
“within a reasonable time.” Fed.R.Civ.P.
60(c)(1). Relief under subsection (b)(6) requires a showing
of “extraordinary circumstances.” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005). Rule 60(b) applies to
habeas proceedings, but only in conformity with Antiterrorism
and Effective Death Penalty Act (AEDPA), including the limits
on successive federal petitions set forth at 28 U.S.C. §
2244(b). Id. at 529. When a Rule 60(b) motion
attacks some defect in the integrity of the federal habeas
proceedings and not the substance of the court's
resolution of a claim on the merits the court should address
it as it would a Rule 60(b) motion raised in any other civil
case. Id. at 532. By contrast, a second or
successive habeas corpus petition “is a filing that
contains one or more ‘claims, '” defined as
“asserted federal bases for relief from a state
court's judgment of conviction.” Id. In
other words, “if neither the motion itself nor the
federal judgment from which it seeks relief substantively
addresses the federal grounds for setting aside the
movant's state conviction, allowing the motion to proceed
as denominated creates no inconsistency with the habeas
statute or rules.” Id. at 533; Hall v.
Haws, 861 F.3d 977, 985 (9th Cir. July 3,
motion does not challenge the court's resolution of the
merits of any claims and is a proper Rule 60(b)(6) motion in
the habeas context. Respondents oppose the motion, arguing
that Bynoe has failed to establish that he brought this Rule
60(b)(6) motion within a ...