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Bynoe v. Helling

United States District Court, D. Nevada

September 1, 2017

MICHAEL BRUCE BYNOE, Petitioner,
v.
HELLING, et al., Respondents.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

         On 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).

         I. Procedural History & Background

         On October 28, 1999, Bynoe entered a plea of guilty but mentally ill to one count of lewdness with a minor under fourteen (exhibit 26).[1] 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.

         Ultimately, 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 relief….” Id.

         Bynoe 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).

         This 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.

         On 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.[2] 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.

         Bynoe, 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).

         II. Legal Standard - AEDPA and Rule 60(b) Motions

         Under 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.

         A 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, 2017).

         Bynoe's 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 ...


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