Bynoe v. Helling et al

Filing 79

ORDERED that petitioner has 30 days (5/19/2021) from the date of this order to file a motion for stay, if any. Respondents may file a response and petitioner may reply as per the normal briefing schedule under the local rules. IT IS FURTHER ORDERED that if petitioner fails to respond to this order the petition may be dismissed. Signed by Judge Larry R. Hicks on 4/19/2021. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL BRUCE BYNOE,
v.

Case No. 3:07-cv-00009-LRH
Petitioner,

ORDER

HELLING, et al.,
Respondents.
On September 23, 2009, this court dismissed petitioner Michael Bruce Bynoe’s

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first-amended § 2254 habeas petition without prejudice because all grounds were

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unexhausted (ECF No. 41). The court denied Bynoe’s motion to stay. Id. Judgment was

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entered (ECF No. 42). Seven years later, on September 14, 2016, petitioner filed a

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motion for relief from final judgment and to reopen the case (ECF No. 52).

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At the time the court dismissed Bynoe’s petition as wholly unexhausted, a

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petition containing only unexhausted claims was not eligible for the stay and abey

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procedure outlined in Rhines v. Weber, 544 U.S. 269 (2005) ECF No. 41). In February

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2016, the Ninth Circuit held in Mena v. Long that the Rhines stay-and-abey procedure is

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not limited to mixed petitions and held that a district court may exercise its discretion to

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stay a petition that raises only unexhausted claims. 813 F.3d at 912. In September

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2016, Bynoe filed a motion for relief from judgment in light of the Mena decision (ECF

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No. 52). This court concluded that Bynoe failed to demonstrate that extraordinary

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circumstances warranted relief from judgment and denied the motion (ECF No. 65).

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Bynoe appealed, and in July 2020, the Ninth Circuit reversed and remanded (see

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ECF No. 74). The court of appeals directed that on remand Bynoe may request that this

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court stay his petition under Rhines and Mena while he returns to state court to exhaust
his federal constitutional claims.
Accordingly, Bynoe has 30 days to file a motion for stay and abeyance.
IT IS THEREFORE ORDERED that petitioner has 30 days from the date of this
order to file a motion for stay, if any. Respondents may file a response and petitioner may
reply as per the normal briefing schedule under the local rules.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order the
petition may be dismissed.

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DATED this 19th day of April, 2021.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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