2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 MICHAEL BRUCE BYNOE, Case No. 3:07-cv-00009-ART-CLB
5 Petitioner, Order Granting Reconsideration and v. Denying Leave to Amend 6 HELLING, et al., (ECF Nos. 160, 161) 7 Respondents. 8 9 In Michael Bruce Bynoe’s 28 U.S.C. § 2254 second-amended habeas 10 corpus petition he challenges his conviction of lewdness with a child under age 11 14 pursuant to a plea of “guilty but mentally ill.” (ECF No. 98.)1 The gravamen 12 of his petition is the claim that the Nevada legislature unconstitutionally 13 abolished the “not guilty by reason of insanity” plea in 1995, and therefore, his 14 1999 “guilty but mentally ill” plea was not knowing, voluntary or intelligent. 15 The Court granted Respondents’ motion to dismiss in part, dismissing 16 three of the four grounds. (ECF No. 154.) The Court deferred a decision on 17 whether Bynoe can demonstrate cause and prejudice to excuse the procedural 18 default of ground 1. The Court ordered further briefing on two issues: (1) the 19 merits of ground 1: whether Nevada’s abolishment of the “not guilty by reason 20 of insanity” plea rendered Bynoe’s “guilty but mentally ill” plea not knowing, 21 voluntary, or intelligent, in violation of his Fifth, Sixth and Fourteenth 22 Amendment rights; and (2) if not, whether Bynoe is entitled to relief based on 23 actual innocence. Bynoe instead filed a motion for reconsideration of ground 2 24 and a motion for leave to file a third-amended petition. (ECF Nos. 160, 161.) 25 Having carefully considered the parties’ arguments, the Court grants 26 reconsideration of the dismissal of ground 2 and denies the motion to amend. 27 1 The Nevada Department of Corrections website reflects that Bynoe was released on 28 parole about May 2022. (https://ofdsearch.doc.nv.gov, last visited February 12, 2025) 1 I. Motion for Reconsideration 2 Bynoe asks the Court to reconsider its adjudication of ground 2, which 3 alleges that trial and appellate counsel rendered ineffective assistance for failing 4 to argue that the abolishment of the insanity defense was unconstitutional in 5 violation of his Fifth, Sixth, and Fourteenth Amendment rights. (ECF No. 161.) 6 The Court dismissed ground 2 as noncognizable in federal habeas corpus. 7 Respondents opposed the motion to reconsider, and Bynoe replied. (ECF Nos. 8 169, 171.) 9 District courts have “the inherent procedural power to reconsider, 10 rescind, or modify an interlocutory order.” Los Angeles v. Santa Monica 11 Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (cleaned up); see also Moses H. 12 Cone Memorial Hospital v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) (“[E]very 13 order short of a final decree is subject to reopening at the discretion of the 14 district judge.”); Fed. R. Civ. P. 54(b) (“[A]ny order or other decision . . . that 15 adjudicates fewer than all the claims . . . may be revised at any time before the 16 entry of a judgment.”). As this Court’s local rules explain, “The court possesses 17 the inherent power to reconsider an interlocutory order for cause, so long as the 18 court retains jurisdiction.” LR 59-1(a). A party seeking reconsideration “must 19 state with particularity” the grounds for reconsideration, for example “the 20 points of law or fact that the court has overlooked or misunderstood.” Id. 21 “Reconsideration may also be appropriate if (1) there is newly discovered 22 evidence that was not available when the original motion or response was filed, 23 (2) the court committed clear error or the initial decision was manifestly unjust, 24 or (3) if there is an intervening change in controlling law.” Id.; cf. Sch. Dist. No. 25 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) 26 (discussing similar standards for post-judgment motions to reconsider). 27 Bynoe argues that ground 2 is cognizable in federal habeas under 28 Strickland v. Washington, 466 U.S. 668 (1984). (ECF No. 161.) Specifically, 1 Bynoe argues that trial and appellate counsel were ineffective for failing to 2 litigate at trial and on appeal the same federal and state constitutional issues 3 successfully raised in Finger v. State, 27 P.3d 66, 86 (Nev. 2001) and O’Guinn v. 4 State, 59 P.3d 488, 490 (Nev. 2002). In Finger and O’Guinn, the state appellate 5 court concluded the legislature violated the federal and state constitutions 6 when the legislature abolished the insanity defense. Finger, 27 P.3d at 86; 7 O’Guinn, 59 P.3d at 490. In both cases, the appellate court concluded the 8 defendants’ guilty pleas were not knowing and voluntary and remanded to allow 9 the defendants to withdraw their pleas. Though Bynoe acknowledges that there 10 is no federal right to an insanity defense, Kahler v. Kansas, 589 U.S. 271 11 (2020), he is instead claiming that counsel were ineffective under Strickland in 12 failing to raise a state law argument, namely, the claim successfully litigated in 13 Finger and O’Guinn. (ECF No. 161 at 5, citing Pinkney v. Secretary, DOC, 876 14 F.3d 1290, 1295 (11th Cir. 2017) (“[T]he issue of ineffective assistance—even 15 when based on the failure of counsel to raise a state law claim—is one of 16 constitutional dimension.” (internal citation omitted)) The Court agrees that 17 ground 2 is a cognizable federal habeas claim for ineffective assistance of 18 counsel. 19 The Court, therefore, grants the motion for reconsideration of the 20 dismissal of ground 2. As with ground 1, the Court defers a decision on whether 21 Bynoe can demonstrate cause and prejudice to excuse the procedural default of 22 ground 2. (See ECF Nos. 114, 120.) 23 II. Motion for Leave to Amend 24 Bynoe also moves for leave to file a third-amended petition to amend 25 ground 2 and add an actual innocence claim. (ECF No. 160.) He seeks to file the 26 amended petition “out of an abundance of caution,” given the Court’s order 27 granting the motion to dismiss in part and directing supplemental briefing. 28 Respondents opposed, and Bynoe replied. (ECF Nos. 167, 170.) 1 Under Federal Rule of Civil Procedure 15(a)(2), a party may amend a 2 pleading with the court’s leave. “The court should freely give leave when justice 3 so requires.” Fed. R. Civ. P. 15(a)(2). “Rule 15’s policy of favoring amendments to 4 pleadings should be applied with extreme liberality.” United States v. Webb, 655 5 F.2d 977, 979 (9th Cir. 1981) (internal quotations omitted). Although leave to 6 amend is within the discretion of the district court, the decision “should be guided 7 by the underlying purpose of Rule 15(a) . . . which was to facilitate decisions on 8 the merits, rather than on technicalities or pleadings.” In re Morris, 363 F.3d 891, 9 894 (9th Cir. 2004) (internal quotations omitted). When deciding whether to grant 10 leave, a court may “take into consideration such factors as bad faith, undue 11 delay, prejudice to the opposing party, futility of the amendment, and whether 12 the party has previously amended his pleadings.” Id.
Free access — add to your briefcase to read the full text and ask questions with AI
2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 MICHAEL BRUCE BYNOE, Case No. 3:07-cv-00009-ART-CLB
5 Petitioner, Order Granting Reconsideration and v. Denying Leave to Amend 6 HELLING, et al., (ECF Nos. 160, 161) 7 Respondents. 8 9 In Michael Bruce Bynoe’s 28 U.S.C. § 2254 second-amended habeas 10 corpus petition he challenges his conviction of lewdness with a child under age 11 14 pursuant to a plea of “guilty but mentally ill.” (ECF No. 98.)1 The gravamen 12 of his petition is the claim that the Nevada legislature unconstitutionally 13 abolished the “not guilty by reason of insanity” plea in 1995, and therefore, his 14 1999 “guilty but mentally ill” plea was not knowing, voluntary or intelligent. 15 The Court granted Respondents’ motion to dismiss in part, dismissing 16 three of the four grounds. (ECF No. 154.) The Court deferred a decision on 17 whether Bynoe can demonstrate cause and prejudice to excuse the procedural 18 default of ground 1. The Court ordered further briefing on two issues: (1) the 19 merits of ground 1: whether Nevada’s abolishment of the “not guilty by reason 20 of insanity” plea rendered Bynoe’s “guilty but mentally ill” plea not knowing, 21 voluntary, or intelligent, in violation of his Fifth, Sixth and Fourteenth 22 Amendment rights; and (2) if not, whether Bynoe is entitled to relief based on 23 actual innocence. Bynoe instead filed a motion for reconsideration of ground 2 24 and a motion for leave to file a third-amended petition. (ECF Nos. 160, 161.) 25 Having carefully considered the parties’ arguments, the Court grants 26 reconsideration of the dismissal of ground 2 and denies the motion to amend. 27 1 The Nevada Department of Corrections website reflects that Bynoe was released on 28 parole about May 2022. (https://ofdsearch.doc.nv.gov, last visited February 12, 2025) 1 I. Motion for Reconsideration 2 Bynoe asks the Court to reconsider its adjudication of ground 2, which 3 alleges that trial and appellate counsel rendered ineffective assistance for failing 4 to argue that the abolishment of the insanity defense was unconstitutional in 5 violation of his Fifth, Sixth, and Fourteenth Amendment rights. (ECF No. 161.) 6 The Court dismissed ground 2 as noncognizable in federal habeas corpus. 7 Respondents opposed the motion to reconsider, and Bynoe replied. (ECF Nos. 8 169, 171.) 9 District courts have “the inherent procedural power to reconsider, 10 rescind, or modify an interlocutory order.” Los Angeles v. Santa Monica 11 Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (cleaned up); see also Moses H. 12 Cone Memorial Hospital v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) (“[E]very 13 order short of a final decree is subject to reopening at the discretion of the 14 district judge.”); Fed. R. Civ. P. 54(b) (“[A]ny order or other decision . . . that 15 adjudicates fewer than all the claims . . . may be revised at any time before the 16 entry of a judgment.”). As this Court’s local rules explain, “The court possesses 17 the inherent power to reconsider an interlocutory order for cause, so long as the 18 court retains jurisdiction.” LR 59-1(a). A party seeking reconsideration “must 19 state with particularity” the grounds for reconsideration, for example “the 20 points of law or fact that the court has overlooked or misunderstood.” Id. 21 “Reconsideration may also be appropriate if (1) there is newly discovered 22 evidence that was not available when the original motion or response was filed, 23 (2) the court committed clear error or the initial decision was manifestly unjust, 24 or (3) if there is an intervening change in controlling law.” Id.; cf. Sch. Dist. No. 25 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) 26 (discussing similar standards for post-judgment motions to reconsider). 27 Bynoe argues that ground 2 is cognizable in federal habeas under 28 Strickland v. Washington, 466 U.S. 668 (1984). (ECF No. 161.) Specifically, 1 Bynoe argues that trial and appellate counsel were ineffective for failing to 2 litigate at trial and on appeal the same federal and state constitutional issues 3 successfully raised in Finger v. State, 27 P.3d 66, 86 (Nev. 2001) and O’Guinn v. 4 State, 59 P.3d 488, 490 (Nev. 2002). In Finger and O’Guinn, the state appellate 5 court concluded the legislature violated the federal and state constitutions 6 when the legislature abolished the insanity defense. Finger, 27 P.3d at 86; 7 O’Guinn, 59 P.3d at 490. In both cases, the appellate court concluded the 8 defendants’ guilty pleas were not knowing and voluntary and remanded to allow 9 the defendants to withdraw their pleas. Though Bynoe acknowledges that there 10 is no federal right to an insanity defense, Kahler v. Kansas, 589 U.S. 271 11 (2020), he is instead claiming that counsel were ineffective under Strickland in 12 failing to raise a state law argument, namely, the claim successfully litigated in 13 Finger and O’Guinn. (ECF No. 161 at 5, citing Pinkney v. Secretary, DOC, 876 14 F.3d 1290, 1295 (11th Cir. 2017) (“[T]he issue of ineffective assistance—even 15 when based on the failure of counsel to raise a state law claim—is one of 16 constitutional dimension.” (internal citation omitted)) The Court agrees that 17 ground 2 is a cognizable federal habeas claim for ineffective assistance of 18 counsel. 19 The Court, therefore, grants the motion for reconsideration of the 20 dismissal of ground 2. As with ground 1, the Court defers a decision on whether 21 Bynoe can demonstrate cause and prejudice to excuse the procedural default of 22 ground 2. (See ECF Nos. 114, 120.) 23 II. Motion for Leave to Amend 24 Bynoe also moves for leave to file a third-amended petition to amend 25 ground 2 and add an actual innocence claim. (ECF No. 160.) He seeks to file the 26 amended petition “out of an abundance of caution,” given the Court’s order 27 granting the motion to dismiss in part and directing supplemental briefing. 28 Respondents opposed, and Bynoe replied. (ECF Nos. 167, 170.) 1 Under Federal Rule of Civil Procedure 15(a)(2), a party may amend a 2 pleading with the court’s leave. “The court should freely give leave when justice 3 so requires.” Fed. R. Civ. P. 15(a)(2). “Rule 15’s policy of favoring amendments to 4 pleadings should be applied with extreme liberality.” United States v. Webb, 655 5 F.2d 977, 979 (9th Cir. 1981) (internal quotations omitted). Although leave to 6 amend is within the discretion of the district court, the decision “should be guided 7 by the underlying purpose of Rule 15(a) . . . which was to facilitate decisions on 8 the merits, rather than on technicalities or pleadings.” In re Morris, 363 F.3d 891, 9 894 (9th Cir. 2004) (internal quotations omitted). When deciding whether to grant 10 leave, a court may “take into consideration such factors as bad faith, undue 11 delay, prejudice to the opposing party, futility of the amendment, and whether 12 the party has previously amended his pleadings.” Id. Futility of amendment can 13 alone justify denying a motion for leave to amend. Bonin v. Calderon, 59 F.3d 14 815, 845 (9th Cir. 1995). 15 Although the Court earlier dismissed grounds 2, 3, and 4 of the second- 16 amended petition, (ECF No. 154), it has now reinstated ground 2. Bynoe seeks 17 to add a claim: 18 Ground 5: Mr. Bynoe stands convicted despite being actually 19 innocent, in violation of his rights under the Fifth, Sixth, Eighth, and 20 Fourteenth Amendments. 21 (ECF No. 160-1 at 15-17.) 22 Bynoe also wants to amend ground 2 “to clarify why the relevant legal theory is 23 cognizable.” (Id.) He insists he is not acting in bad faith or to cause undue delay 24 and that Respondents cannot show prejudice. 25 Respondents argue that amendment at this late stage of litigation is 26 unwarranted and prejudicial. (ECF No. 167.) They mainly contend that 27 amendment would be futile, pointing to the fact that the new ground 5 would be 28 untimely, unexhausted, and therefore potentially subject to procedural bar. 1 They also argue that Bynoe cannot demonstrate that a standalone actual 2 innocence claim is cognizable in federal habeas corpus. See McQuiggin v. 3 Perkins, 569 U.S. 383, 392 (2013); Herrera v. Collins, 506 U.S. 390, 417 (1993); 4 Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014); Taylor v. Beard, 811 F.3d 5 326, 334 (9th Cir. 2016) (en banc). As to ground 2, Respondents argue that 6 leave to amend is futile because the Court had dismissed the claim as 7 noncognizable. And they dispute the need for a third-amended petition in light 8 of the Court’s order for supplemental briefing. 9 The Court has granted the motion to reconsider the dismissal of ground 10 2, there is no need to amend that claim. Bynoe will now also have the 11 opportunity to further address ground 2 in the supplemental briefing. So 12 amendment to clarify/highlight the state constitutional element is unnecessary. 13 With respect to adding a freestanding actual innocence claim as ground 14 5, there is simply no need. Bynoe would only be creating more potential 15 procedural hurdles for his petition. And the Court has already directed briefing 16 that gives Bynoe the opportunity to address this very issue. To a certain extent 17 seeking to amend (yet again) is a distinction without a difference. So the Court 18 denies the motion for leave to file a third-amended petition. 19 Therefore, the Court directs further briefing as follows: 20 • The merits of ground 1: whether Nevada’s abolishment of the “not guilty 21 by reason of insanity” plea rendered Bynoe’s “guilty but mentally ill” 22 plea not knowing, voluntary, or intelligent, in violation of his Fifth, Sixth 23 and Fourteenth Amendment rights; 24 • If not, whether Bynoe is entitled to relief based on actual innocence; 25 • The merits of ground 2: whether trial and appellate counsel rendered 26 ineffective assistance for failing to argue that the lack of an insanity 27 defense violated Bynoe’s rights under the state constitution. 28 1 III. Conclusion 2 It is therefore ordered that Petitioner’s motion for reconsideration of the 3 || dismissal of ground 2 (ECF No. 161) is granted. 4 It is further ordered that Petitioner’s motion for leave to file a third- 5 || amended petition (ECF No. 160) is denied. 6 It is further ordered that Petitioner has 45 days from the date of this 7 || order to file supplemental briefing as directed by the Court above. 8 It is further ordered that Respondents have 45 days from the date that 9 || Petitioner files his briefing to file a response. 10 It is further ordered that Respondents’ second and third motions for 11 || extension of time to respond to Petitioner’s motions (ECF Nos. 166 and 168) 12 || are both granted nunc pro tunc. 13 14 DATED THIS 6th day of March 2025. 15 16 Aras jlosect en 17 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28