Ninth Circuit Clarifies Use of Rule 60(b) for Changes in Law
The U.S. Court of Appeals for the Ninth Circuit has clarified when Federal Rule of Civil Procedure 60(b) may be used to reopen a federal habeas corpus case due to a change in the law that was relied on to deny relief. The split decision was handed down July 24, 2020, and once again expands the use of Rule 60 in the Ninth Circuit.
Michael Bynoe challenged his Nevada State conviction under federal habeas corpus in 2007, but his petition was dismissed before it ever got started. The district court ruled that he failed to exhaust his state postconviction remedies before filing in federal court and dismissed his petition. He asked the court to “stay” (put on hold) his petition while he went back to state court to exhaust his remedies, but the court refused. The court said the law required it to dismiss any petition with claims that were never raised in state court.
But several years later, that law changed, and Bynoe filed a Rule 60(b) motion to reopen his federal habeas case to apply the new law. But the court also denied this motion, ruling that he was too late and that the change in law wasn’t enough. He appealed.
Use of Rule 60(b)
Rule 60(b) contains six provisions to reopen a civil case, and a federal habeas case is a civil case for Rule 60(b) purposes. This sixth provision (the only one at issue here) is for “any other reason that justifies relief,” which includes a change in law relevant to the civil case. To fit under the “other reason” provision, three things must be shown: (1) no other provision applies under Rule 60(b), (2) it is filed “within a reasonable time,” and (3) there must be “extraordinary circumstances.” A Rule 60(b) motion, however, cannot take the place of an appeal that should have been taken but wasn’t. It also cannot challenge the court’s reasoning for its denial of the habeas petition or add new claims to the old petition, without it being a “second or successive” habeas petition destined for denial.
The Change in Law
At the time of Bynoe’s unexhausted federal petition, the district court was required to dismiss it entirely, allowing him to come back later once he’d exhausted his state remedies. While a “mixed” petition (i.e., one containing both exhausted and unexhausted claims) could be stayed while the rest of the claims were exhausted, the rule at the time of Bynoe’s petition was that a fully unexhausted petition had to be dismissed. Rhines v. Weber, 544 U.S. 269 (2005). It’s true that he could have come back once exhausted, but the harsh Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year clock kept running while he did this. He ran out of time. If the district court had stayed his petition, that clock would have stopped.
Enter the Ninth Circuit’s decision in Mena v. Long, 813 F.3d 907 (9th Cir. 2016), holding that a district court could stay an unexhausted petition the same as a mixed one. The Mena Court reasoned that a mixed petition is no different from an unexhausted petition. This was exactly what Bynoe had asked for but was denied. Had Mena been in effect when he filed his petition in 2007, it would have been stayed to allow exhaustion, and his federal petition would have been timely.
Bynoe filed a Rule 60(b) motion right after Mena, asking the district court to reopen his federal habeas case and apply Mena to him, in effect allowing his petition to be timely. The district court refused, saying the change in law wasn’t an “extraordinary circumstance” and that his motion was filed seven years after his petition was denied, making it unreasonably late.
A “clean and authoritative” change in the law can be an extraordinary circumstance for Rule 60(b), the Ninth Circuit said, agreeing to hear Bynoe’s appeal. Generally, a change in “decisional law” isn’t enough. That’s when the law determining the merits of the claims changes. But a change in “procedural” law may be sufficient, such as when the Supreme Court held that state prisoners are entitled to the effective assistance of counsel in most postconviction proceedings. McGuire v. Warden, 738 F.3d 741 (6th Cir. 2013) (explaining this context). [Writer’s note: remember that Rule 60 reopens a civil case, and this is not about a change in law affecting a criminal case.]
The Court also noted an additional qualifier: The change in law must also have answered an unsettled question of law. In Mena, the Court settled whether a fully unexhausted petition could be stayed. Prior to this, it was an open question, though most district courts did not stay unexhausted petitions. “Unsettled legal questions are sometimes difficult to detect,” the Ninth Circuit said in Bynoe’s case. The Court noted that unpublished cases usually don’t settle open questions of law.
Timeliness and Diligence
The “reasonable time” to file a Rule 60(b) motion is not an open invitation to wait, the Court reminded. While there’s not a hard time limit for Rule 60(b)(6), courts “presume” a one-year limit applies. Bynoe’s Rule 60(b) motion was on time, the Court said, because he filed within months of the Mena decision. For a change in law claim, the Rule 60(b) clock runs from the change in law, not from the judgment of the civil case, as it does for other grounds.
The district court’s ruling that Bynoe was too late was wrong, the Court said. The Court also concluded that Bynoe was diligent, given his lack of resources and legal training, and that he exhausted his appeals when he should have long ago. “Petitioners are not required to file repeated, meritless habeas petitions or motions to demonstrate diligence,” the Court said.
Finality and Comity
The Court made a brief note about finality and comity, concerns always at issue in Rule 60(b) motions. As far as finality, the Court concluded that because Bynoe was never given a chance to have his claims heard, there were no finality concerns in the federal judgment by the state. Finality had nothing to do with his state conviction. Comity — the federal court’s respect for state court decisions — would have been “minimal,” the Court said, because Bynoe was merely reopening a “procedural” decision that precluded the merits of the claims.
“In its resolve to put an end to Bynoe’s habeas claims, the district court failed to recognize that Bynoe timely filed his motion and presented extraordinary circumstances warranting reopening of the final judgment,” the Court stated in reversing and remanding Bynoe’s Rule 60(b) denial. See: Bynoe v. Baca, 966 F.3d 972 (9th Cir. 2020).
Writer’s note: When asked if it’s a good idea to file a Rule 60(b) motion to reopen a federal habeas case, I respond to such inquiries by warning that district courts have very broad discretion in whether the motion should be granted. Too often, it seems district courts have near “immunity” when it comes to Rule 60(b) motions, and Courts of Appeals rarely disturb their denials. They cite “finality” being the overwhelming concern, but the “whole purpose of Rule 60(b) is to make an exception to finality.” Buck v. Davis, 137 S. Ct. 759 (2017).
Related legal case
Bynoe v. Baca
|Cite||966 F.3d 972 (9th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|