Michael Bynoe v. Isidro Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL B. BYNOE, No. 17-17012
Petitioner-Appellant,
D.C. No.
v. 3:07-cv-00009-
LRH-VPC
ISIDRO BACA, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Argued and Submitted July 17, 2019
San Francisco, California

Filed July 24, 2020

Before: Michael R. Murphy, * Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Paez;
Dissent by Judge Rawlinson

*
The Honorable Michael R. Murphy, United States Circuit Judge
for the U.S. Court of Appeals for the Tenth Circuit, sitting by
designation.
2 BYNOE V. BACA

SUMMARY **

Habeas Corpus / Fed. R. Civ. P. 60(b)

The panel reversed the district court’s denial of Michael
Bynoe’s motion pursuant to Fed. R. Civ. P. 60(b)(6) to
reopen proceedings on his habeas corpus petition seeking to
invalidate his plea of guilty but mentally ill to lewdness with
a child under the age of fourteen, and remanded for further
proceedings.

Bynoe entered the “guilty but mentally ill” plea, which
subjected defendants to the same panoply of punishment as
defendants who pleaded guilty or were found guilty after
trial, during the short-lived period in which the Nevada state
legislature replaced the insanity defense with the “guilty but
mentally ill” plea. After the insanity plea was reinstated,
Bynoe—without having exhausted any of his claims in state
court—sought to invalidate his guilty plea by filing a habeas
petition in federal district court. The district court denied
Bynoe’s request for a stay and dismissed the petition,
interpreting this court’s case law at the time to require the
dismissal of habeas petitions consisting only of unexhausted
claims. In Mena v. Long, 813 F.3d 907 (9th Cir. 2016), this
court later clarified that district courts can indeed stay and
abey entirely unexhausted habeas petitions. Following this
change in law, Bynoe moved to reopen his habeas
proceeding under Rule 60(b)(6) so the district court could
reconsider his request for a stay while he presented his
claims in state court. The district court denied the motion to

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 BYNOE V. BACA 3

reopen, concluding that Bynoe’s claim was not timely and
that he failed to present extraordinary circumstances
justifying relief.

The panel held:

• Bynoe’s motion was properly filed under Rule
60(b)(6) rather than any of Rule 60(b)’s other
grounds for relief.

• The motion, which was filed less than seven months
after this court decided Mena and only two months
after Bynoe was appointed counsel, was timely.

• The motion presented extraordinary circumstances
warranting re-opening the final judgment, as the six
factors set forth in Phelps v. Alameida, 569 F.3d
1120 (9th Cir. 2009)—the nature of the legal change,
diligence in pursuing reconsideration, the parties’
reliance interest in finality, the delay between finality
of the judgment and the Rule 60(b)(6) motion, the
relationship between the change in law and the
challenged judgment, and concerns of comity—
support reconsidering the final judgment.

The panel wrote that on remand Bynoe may request the
district court to stay his petition while he returns to state
court to exhaust his federal constitutional claims.

Judge Rawlinson dissented because, in her view, the
majority does not adhere to the applicable standard of
review, abuse of discretion.
4 BYNOE V. BACA

COUNSEL

Jeremy C. Baron (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Petitioner-Appellant.

Natasha Mary Gebrael (argued); Erin L. Bittick, Deputy
Attorney General; Aaron D. Ford, Attorney General; Office
of the Attorney General, Las Vegas, Nevada; for
Respondents-Appellees.

OPINION

PAEZ, Circuit Judge:

In 1995, the Nevada State Legislature replaced the
insanity defense with a “guilty but mentally ill” plea. See
1995 Nev. Stat. 2248–49. Pleading not guilty by reason of
insanity instead of guilty but mentally ill had important
practical consequences. Defendants who were found not
guilty by reason of insanity were entirely acquitted of the
crimes with which they were charged, while defendants who
pleaded guilty but mentally ill were subject to the same
panoply of punishment as defendants who pleaded guilty or
were found guilty after trial.

Six years later, the Nevada Supreme Court reinstated the
insanity defense. See Finger v. State of Nevada, 27 P.3d 66,
68 (Nev. 2001) (en banc). The court concluded that the
principle of legal insanity is so “well-established” and
“fundamental” that its abolishment violated the due process
 BYNOE V. BACA 5

clauses of the Nevada and United States constitutions. 1 Id.
at 84. The Legislature responded by restoring the insanity
defense and abolishing the guilty-but-mentally-ill plea. See
Nev. Rev. Stat. § 174.035(4) (2003).

Michael Bynoe was one of the defendants who pleaded
guilty but mentally ill during the short-lived period in which
the plea was available in Nevada. After the insanity plea was
reinstated, he sought to invalidate his guilty plea by filing a
habeas petition in federal district court. At the time he filed
his petition, he had failed to first exhaust any of his claims
in state court. The court denied Bynoe’s request for a stay
and dismissed the petition, interpreting our caselaw at the
time to require the dismissal of habeas petitions consisting
only of unexhausted claims. See Bynoe v. Helling (Bynoe I),
No. 3:07-cv-0009, 2009 WL 3060372, at *2 (D. Nev. Sept.
23, 2009). In an unrelated case, we later clarified that district
courts can indeed stay and abey entirely unexhausted habeas
petitions. See Mena v. Long, 813 F.3d 907 (9th Cir. 2016).

Following this change in law, Bynoe moved to reopen
his habeas proceeding under Federal Rule of Civil Procedure
60(b)(6) so the district court could reconsider his request for
a stay while he presented his claims in state court. The court
denied his motion to reopen, concluding that Bynoe’s claim
was not timely and he had failed to present extraordinary
circumstances justifying relief. See Bynoe v. Helling (Bynoe
II), No. 3:07-cv-0009, 2017 WL 4079263, at *5 (D. Nev.

1
The Supreme Court recently held that the due process clause of the
U.S. Constitution does not require states to maintain an insanity defense
that “acquits a defendant who could not ‘distinguish right from wrong’
when committing his crime[.]” Kahler v. Kansas, 140 S. Ct. 1021, 1027
(2020). We express no views on whether Kahler affects Bynoe’s claims.
6 BYNOE V. BACA

Sept. 6, 2017); see also Fed. R. Civ. P. 60(b)(6), (c)(1). We
reverse and remand for further proceedings.

I.

A.

Three years after Nevada eliminated the insanity
defense, Bynoe was charged with one count of sexual assault
on a child and one count of lewdness with a child under the
age of fourteen. The court initially determined Bynoe was
not competent to stand trial and ordered him transferred to a
psychiatric facility for evaluation and treatment. After his
competency was restored, he pleaded guilty but mentally ill
to a lesser offense of lewdness with a child under the age of
fourteen in exchange for the state’s agreement not to pursue
the original sexual assault charge.

At his sentencing hearing, the court found Bynoe was
mentally ill at the time of the offense and at the time of
sentencing, accepted his plea, and sentenced him to life
imprisonment with eligibility for parole after he served a
minimum of ten years.

B.

Bynoe’s lengthy procedural journey through the Nevada
and federal courts began a few months after he was
sentenced. He began filing motions in state and federal
court, challenging the propriety of his sentence and
conviction. While his initial objections were pending, the
Nevada Supreme Court held that the legislature’s abolition
of the insanity defense violated defendants’ due process
rights under the United States and Nevada Constitutions.
See Finger, 27 P.3d at 86.
 BYNOE V. BACA 7

In 2007, Bynoe filed a pro se habeas petition in federal
district court. He alleged that his federal due process rights
were violated when he was barred from pleading not guilty
by reason of insanity. The court appointed him counsel, and
he filed an amended petition. Three out of the four grounds
for relief in the amended petition turned on Nevada’s
unconstitutional decision to abolish the insanity defense.
After reviewing the petition, the court ordered Bynoe to
show cause why the petition should not be dismissed for lack
of exhaustion.

In order to proceed with a federal habeas petition,
petitioners must first exhaust their state-court remedies. See
Anthony v. Cambra, 236 F.3d 568, 573–74 (9th Cir. 2000).
In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court
held that district courts were required to dismiss “mixed”
habeas petitions—petitions that contain both unexhausted
and exhausted claims—in their entirety. Id. at 510.

Although dismissals of mixed petitions are technically
without prejudice, the enactment of Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) made it
difficult for petitioners to return to federal court with a
timely petition. AEDPA imposes a one-year statute of
limitations on the filing of a federal petition, see 28 U.S.C.
§ 2244(d)(1), and filing a federal petition does not toll the
statute of limitations, see Duncan v. Walker, 533 U.S. 167,
181–82 (2001). Thus, petitioners who filed mixed petitions
late in the limitations period could fall outside the one-year
window by the time they finished exhausting their state-
court remedies and returned to federal court. Together, the
one-year time limit and Lundy’s complete-dismissal
requirement heightened the risk that petitioners who filed a
mixed petition toward the end of the limitations period
8 BYNOE V. BACA

would lose the chance for federal review of their claims.
Dixon v. Baker, 847 F.3d 714, 719 (9th Cir. 2017).

Recognizing “the gravity of this problem and the
difficulty it [] posed for petitioners and federal district courts
alike,” the Supreme Court introduced an exception to the
complete-dismissal requirement in Rhines v. Weber,
544 U.S. 269, 277 (2005). Under Rhines, a federal district
court may stay the mixed petition and allow the petitioner to
return to state court to litigate the unexhausted claims. See
Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005). Stay-
and-abeyance under Rhines is appropriate only where the
court determines “there was good cause for the petitioner’s
failure to exhaust his claims first in state court.” 2 Rhines,
544 U.S. at 277.

In response to the district court’s exhaustion concerns,
Bynoe moved for a stay of his federal habeas proceeding
under Rhines. The court denied Bynoe’s stay motion
because his petition contained only unexhausted claims.
Bynoe requested a certificate of appealability, which the
district court denied. He requested the same from this court,

2
Before Rhines, district courts in the Ninth Circuit could (1) dismiss
a mixed petition without prejudice so the petitioner could refile after
exhausting the unexhausted claims; (2) dismiss the unexhausted claims
and proceed only with the exhausted claims; or (3) dismiss the
unexhausted claims, stay the remaining claims until the unexhausted
claims were fully exhausted, and allow the petitioner to amend the
petition to add the newly exhausted claims that related back to the
original petition. See King v. Ryan, 564 F.3d 1133, 1135, 1139 (9th Cir.
2009); see also Pliler v. Ford, 542 U.S. 225, 230–31 (2004). As we
noted in Mena, Rhines altered the total-exhaustion requirement. See
813 F.3d. at 910–11; see also King, 564 F.3d at 1140 (“When
implemented, the Rhines exception eliminates entirely any limitations
issue with regard to the originally exhausted claims, as the claims remain
pending in federal court throughout.”).
 BYNOE V. BACA 9

which we also denied. Bynoe then petitioned for a writ of
certiorari from the Supreme Court, which was denied in
2011.

C.

Years after Bynoe’s stay request was denied, we settled
the law governing the applicability of a Rhines stay to an
entirely unexhausted petition. In Mena, we held that district
courts may grant a Rhines stay of a petition containing only
unexhausted claims. 813 F.3d at 912. Reasoning that “the
distinctions between mixed petitions and fully unexhausted
petitions” are not “sufficiently meaningful to warrant
different treatment,” we determined that “[d]enying stays to
all petitioners with fully unexhausted petitions . . . creates a
needlessly overbroad rule.” Id. at 911.

About seven months after our decision in Mena, Bynoe
filed a motion under Federal Rule of Civil Procedure
60(b)(6), seeking to reopen his federal habeas proceeding so
he could renew his request for a stay under Rhines and Mena.
The district court denied Bynoe’s motion to reopen,
explaining that seven years had passed since the court had
originally entered judgment and it was not “reasonable and
warranted to reopen this case after so many years.” Bynoe
II, 2017 WL 4079263, at *3.

Bynoe timely appealed. We have jurisdiction to review
Bynoe’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
We review for abuse of discretion a district court’s decision
to deny a Rule 60(b)(6) motion, and review de novo any
questions of law underlying that decision. See Lal v.
California, 610 F.3d 518, 523 (9th Cir. 2010).
10 BYNOE V. BACA

II.

Bynoe seeks relief under Rule 60(b), which permits
litigants to request reconsideration of a final judgment,
order, or proceeding entered against them. The Rule lists
five circumstances that may justify reopening a final
judgment—including, for example, newly discovered
evidence, fraud by the opposing party, or a mistake
committed by the court—and a sixth, catch-all category.
The sixth ground for relief allows a court to reconsider a final
judgment for “any other reason that justifies relief.” Fed. R.
Civ. P. 60(b)(6).

A party seeking relief under Rule 60(b)(6) must satisfy
three requirements. The motion cannot be premised on
another ground delineated in the Rule, see Liljeberg v.
Health Serv. Acquisition Corp., 486 U.S. 847, 863 & n.11
(1988); it must be filed “within a reasonable time,” see Fed.
R. Civ. P. 60(c)(1); and it must demonstrate “extraordinary
circumstances” justifying reopening the judgment, see
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship,
507 U.S. 380, 393 (1993). Extraordinary circumstances
occur where there are “other compelling reasons” for
opening the judgment. Klapprott v. United States, 335 U.S.
601, 613 (1949). Bynoe’s Rule 60(b)(6) motion satisfies all
three.

A.

Bynoe’s motion was properly filed under Rule 60(b)(6)
rather than any of Rule 60(b)’s other grounds for relief. The
basis of his motion is Mena’s change in the complete-
exhaustion rule; his case does not involve a mistake by the
court, newly discovered evidence, fraud, and he does not
challenge the validity or satisfaction of the judgment. See
Fed. R Civ. P. 60(b)(1)–(5). A Rule 60(b) motion that
 BYNOE V. BACA 11

attacks some procedural “defect in the integrity of the federal
habeas proceedings” may be a reason that “justifies relief”
under Rule 60(b)(6). 3 Gonzalez, 545 U.S. at 532; see also
Phelps v. Alameida, 569 F.3d 1120, 1131–34 (9th Cir. 2009).

B.

Unlike a motion under Rule 60(b)(1), (2), or (3), a timely
60(b)(6) motion does not need to be filed within one year
after the “final judgment, order, or proceeding.” See Fed. R.
Civ. P. 60(b), (c)(1). A party who seeks relief under Rule
60(b)(6) must act only within a “reasonable time.” Fed. R.
Civ. P. 60(c)(1). The flexibility embedded in Rule
60(b)(6)’s timing requirement preserves its purpose as a
“grand reservoir of equitable power,” available as a vehicle
for “vacat[ing] judgments whenever such action is
appropriate to accomplish justice.” Hall v. Haws, 861 F.3d
977, 987 (9th Cir. 2017) (internal quotation marks omitted).

The timeliness of a Rule 60(b) motion is generally
measured by reference to the date of the final judgment,
order, or proceeding. See, e.g., Lemoge v. United States,
587 F.3d 1188, 1197 (9th Cir. 2009). But where a change in
law is the basis for the motion, the date of the challenged
order provides little guidance in measuring its timeliness;
valid grounds for reconsideration may arise long after a final
judgment has been entered. When a Rule 60(b)(6) motion is
premised on a change in law, courts measure timeliness “as

3
In the habeas context, a Rule 60(b) motion applies only to the
extent it is not inconsistent with AEDPA. It cannot be used as a vehicle
for raising a second or successive habeas petition as prescribed in
28 U.S.C. § 2244. See Gonzalez v. Crosby, 545 U.S. 524, 529–30
(2005). The basis of Bynoe’s motion is a change in procedural law; he
neither raises a new claim for habeas relief nor challenges previous
decisions on the substance of his claims.
12 BYNOE V. BACA

of the point in time when the moving party has grounds to
make [a Rule 60(b)] motion, regardless of the time that has
elapsed since the entry of judgment.” Clark v. Davis,
850 F.3d 770, 780 (5th Cir. 2017) (internal quotation marks
omitted); see also Miller v. Mays, 879 F.3d 691, 699 (6th
Cir. 2018).

To evaluate whether a party’s delay in filing a Rule 60(b)
motion was reasonable, we consider the party’s ability to
learn earlier of the grounds relied upon, the reason for the
delay, the parties’ interests in the finality of the judgment,
and any prejudice caused to parties by the delay. Ashford v.
Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981).

Our holding in Phelps v. Alameida, 569 F.3d 1120 (9th
Cir. 2009), is instructive. One year and fifteen days after the
California Supreme Court summarily denied his state habeas
petition, Phelps filed a federal habeas petition under
28 U.S.C. § 2254. Id. at 1125. Under the California Rules
of Court in force at the time, a “decision” of the state
supreme court became final thirty days after filing, but an
“order” of the court denying a petition for review became
final at the time of filing. Id. AEDPA’s statute of limitations
is one year, so if the summary denial was a “decision,” not
an “order,” then Phelps had filed his initial petition late. Id.
at 1126–27. The district court noted that “California courts
ha[d] not clearly articulated the difference between a
decision and an order in the context” of the relevant rule, but
agreed with the government that the denial of review was an
order, and dismissed Phelps’s petition as untimely. Id.
at 1126. Phelps appealed, and we affirmed the district court.
Id.

At the time Phelps appealed, the question of how to
construe such denials for purposes of AEDPA was “an open
one.” Id. Fifteen months after Phelps’s appeal became final,
 BYNOE V. BACA 13

we settled the law and held that summary denials by the
California Supreme Court were “orders.” Id; see Bunney v.
Mitchell, 262 F.3d 973, 974 (9th Cir. 2001) (per curiam).
Phelps then filed a Rule 60(b)(6) motion, asking the district
court to reconsider the denial of his petition because of the
intervening change in law. Phelps, 569 F.3d at 1127. The
district court concluded the motion was a successive habeas
petition and denied the motion. Id. We dismissed Phelps’s
appeal. Id. at 1127–28.

Eleven months later, the Supreme Court held in
Gonzalez that a Rule 60(b) motion that challenges a district
court’s ruling on the AEDPA statute of limitations is not a
successive petition. See 545 U.S. at 535–36. Ten months
after the Supreme Court issued Gonzalez—and six years
after his initial habeas petition had been dismissed—Phelps
filed his second Rule 60(b) motion. Phelps, 569 F.3d at
1126–27, 1137–38 & n.21. The district court again refused
to reconsider its dismissal and again denied a certificate of
appealability. Id. at 1128–29. We initially denied his
petition for a certificate of appealability, but eventually
granted it to address only whether the inconsistent
application of rules governing finality from habeas decisions
by the California Supreme Court warranted relief under Rule
60(b)(6). Id. at 1129.

Finally addressing the merits of Phelps’s Rule 60(b)
motion, we held that it had been timely filed. Id. at 1129–
31. Noting that he had prepared his motion without counsel,
writing from his prison cell, we could not “imagine a more
sterling example of diligence” than Phelps had exhibited. Id.
at 1137. We further concluded that Phelps could not be
faulted for the six years that had passed since he filed his
initial habeas petition; his first motion had been incorrectly
dismissed as a successive habeas petition, the government’s
14 BYNOE V. BACA

interests in the finality of an erroneous procedural judgment
were minor, and the delay prejudiced neither party. See id.
at 1137–39; see also, e.g., Jones v. Ryan, 733 F.3d 825, 839
(9th Cir. 2013) (holding that the petitioner’s seventeen-
month delay carried “little weight”); Ritter v. Smith,
811 F.2d 1398, 1402 (11th Cir. 1987) (describing a motion
for reconsideration filed nine months after the judgment
became final as a “brief delay”); Thompson v. Bell, 580 F.3d
423, 443–44 (6th Cir. 2010) (concluding that a four-year
delay in filing a 60(b)(6) motion premised on a change in
law was timely in light of the petitioner’s diligence). We
thus reversed the district court’s denial of Phelps’s Rule
60(b)(6) motion.

Bynoe sought relief less than seven months after we
decided Mena. Mena provided the basis for his motion to
reopen his habeas proceeding so that he could seek a stay
under Rhines. Any “delay” prior to Mena is irrelevant,
because the basis for Bynoe’s Rule 60(b)(6) motion did not
yet exist. See Ashford, 657 F.2d at 1054. A seven-month
delay is well within the timeframe considered by Phelps and
the presumptive one-year timeframe suggested by the Rule.

Notably, the motion was also filed only two months after
Bynoe was appointed counsel. In July 2015, Bynoe filed a
new habeas petition in the district court, and the Office of
the Federal Public Defender filed a motion for appointment
of counsel at the end of July 2016, five months after Mena.
The court granted the motion and ordered Bynoe to file an
amended petition within sixty days. In response, Bynoe’s
attorney filed the Rule 60(b)(6) motion and requested a stay
of the new federal case. These events underscore the
consequences of Bynoe’s “lack of resources and legal
training,” and his inability to learn of the grounds raised in
his Rule 60(b)(6) motion without counsel. See Foley v.
 BYNOE V. BACA 15

Biter, 793 F.3d 998, 1004 (9th Cir. 2015). Bynoe was
diligent in filing his motion and, as we explain later, the
prejudice suffered by Nevada in this context is minimal.

We hold that Bynoe’s Rule 60(b) motion was timely.

C.

We turn to whether there are “extraordinary
circumstances necessary to grant relief.” Phelps, 569 F.3d
at 1140. The extraordinary-circumstances requirement was
first introduced—albeit, likely unintentionally—in 1949, the
year after amended Rule 60(b) became effective. Prior to the
amendment of Rule 60, courts were unduly constrained in
their authority to revisit final judgments. 4 The original Rule
60(b) permitted reconsideration of a judgment only on
specific grounds made within a strict, six-month time limit.
See Fed. R. Civ. P. 60(b) (1938). Often unable to rely on the
text of the rule for granting relief, courts began to craft
innovative interpretations of the rule, extending the six-
month period during which they could grant post-judgment
relief or relying on their inherent powers to revisit a final
judgment. See, e.g., Schram v. O’Connor, 2 F.R.D. 192,
194–95 (E.D. Mich. 1941); Preveden v. Hahn, 36 F. Supp.
952, 953 (S.D.N.Y. 1941). In response, Rule 60(b) was
broadened, the time limits were expanded, and the catch-all
provision was added. 5

4
See Note, Federal Rule 60(b): Relief from Civil Judgments,
61 Yale L.J. 76, 77–78 (1952).
5
See Scott Dodson, Rethinking Extraordinary Circumstances,
106 Nw. L. Rev. Colloquy 111, 111–14 (2011–2012); Mary Kay Kane,
Relief From Federal Judgments: A Morass Unrelieved by a Rule, 30
16 BYNOE V. BACA

The Supreme Court addressed the newly amended rule
for the first time in Klapprott v. United States, 335 U.S. 601
(1949). It considered whether the district court erred in
denying a Rule 60(b)(6) motion seeking to set aside a default
judgment depriving the petitioner of his citizenship. Id.
at 601, 613. The default judgment had been entered against
the petitioner because he had been “in jail . . . , weakened
from illness, without a lawyer in the denaturalization
proceedings or funds to hire one, disturbed and fully
occupied in efforts to protect himself against the gravest
criminal charges.” Id. at 614. Although four years had
passed since the judgment had been entered, the Court held
that relief under amended Rule 60(b)(6) was appropriate
because the events leading to the default judgment far
exceeded the “excusable neglect” standard in Rule 60(b)(1);
his “extraordinary situation” could not “fairly or logically be
classified as mere ‘neglect’ on his part.” Id. at 613.

The following year, the Court described Klapprott as “a
case of extraordinary circumstances,” Ackermann v. United
States, 340 U.S. 193, 199 (1950), and denied Rule 60(b)(6)
relief in a similar denaturalization case. Even if the district
court had erred in its judgment, the Court explained, the
petitioner had “made a considered choice not to appeal,” and
could not “be relieved of such a choice because hindsight
seems to indicate to him that his decision not to appeal was
probably wrong.” Id. at 198. Ackermann, and decisions that
followed it, solidified Rule 60(b)(6)’s extra-textual
requirement that a movant demonstrate a compelling
justification for failing to raise the basis for the motion
during the pendency of the case. See, e.g., Martella v.
Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th

Hasting L. J. 41, 41–47 (1978); see also 11C Charles A. Wright & Arthur
R. Miller, Federal Practice & Procedure § 2851 (3d ed.).
 BYNOE V. BACA 17

Cir. 1971) (per curiam) (“In order to bring himself within the
limited area of Rule 60(b)(6) a petitioner is required to
establish the existence of extraordinary circumstances which
prevented or rendered him unable to prosecute an appeal.”).

A “clear and authoritative” change in the law governing
the judgment in a petitioner’s case may present extraordinary
circumstances. See Polites v. United States, 364 U.S. 426,
433 (1960). Federal courts have considered a variety of
factors to evaluate whether the context of the change and its
consequences are sufficiently extraordinary. A relevant
alteration to constitutional rights, for example, may be
sufficient, McGuire v. Warden, Chillicothe Corr. Inst.,
738 F.3d 741, 750–51 (6th Cir. 2013), but a narrow change
in peripheral law is “rarely” enough, Satterfield v. Dist.
Attorney Phil., 872 F.3d 152, 160 (3d Cir. 2017); see also
Mitchell v. United States, 958 F.3d 775, 790–91 (9th Cir.
2020). Courts also consider the prejudice caused to other
parties, including the state’s interest in the finality of the
judgment and “the risk of undermining the public’s
confidence in the judicial process.” Liljeberg, 486 U.S.
at 863–64. The context and nature of the injustice borne by
the petitioner absent a re-opening of the judgment is also
relevant. See, e.g., Buck v. Davis, 137 S. Ct. 759, 778–79
(2017).

For Rule 60(b)(6) motions premised on post-judgment
changes in law, we have distilled the extraordinary-
circumstances requirement into six factors, considered
flexibly and in their totality. We examine (1) the nature of
the legal change, including whether the change in law
resolved an unsettled legal question; (2) whether the movant
exercised diligence in pursuing reconsideration of his or her
claim; (3) the parties’ reliance interests in the finality of the
judgment; (4) the delay between the finality of the judgment
18 BYNOE V. BACA

and the Rule 60(b)(6) motion; (5) the relationship between
the change in law and the challenged judgment; and
(6) whether there are concerns of comity that would be
disturbed by reopening a case. See Phelps, 569 F.3d at
1134–40; Hall, 861 F.3d at 987–88. We address each factor
in turn, without “suggest[ing] that they impose a rigid or
exhaustive checklist.” Phelps, 569 F.3d at 1135.

1.

We first consider the nature of the intervening law. See
Lopez v. Ryan, 678 F.3d 1131, 1135–36 (9th Cir. 2012). A
change in law “does not always supply sufficient conditions
for granting” a Rule 60(b)(6) motion. Riley v. Filson,
933 F.3d 1068, 1071 (9th Cir. 2019). A dismissal of a
petition based on an accurate application of then-settled
law—even after the Supreme Court overrules such
precedent—is “hardly extraordinary.” Gonzalez, 545 U.S.
at 536. But the resolution of unsettled law, see Phelps,
569 F.3d at 1135–36, or a “remarkable—if limited”
development in relevant settled law may present
extraordinary circumstances, Lopez, 678 F.3d at 1136
(internal quotation marks omitted).

Bynoe’s motion is predicated upon Mena’s resolution of
an outstanding habeas question. Before Mena, Rhines held
that district courts may, in certain circumstances, stay a
mixed habeas petition while the petitioner exhausted his
federal claims in state court. 544 U.S. at 275–77. The Court
left open whether stay-and-abeyance extended to habeas
petitions consisting solely of unexhausted claims.
Acknowledging this uncertainty, we initially declined to
read Rhines to authorize stays of entirely unexhausted
petitions. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.
2006). District courts faced with such petitions could
“simply dismiss the habeas petition for failure to exhaust,”
 BYNOE V. BACA 19

without addressing whether Rhines applied. Id. (citing
Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001)).

In Mena, we recognized that we had not yet “addressed
in our circuit whether such a stay-and-abeyance procedure is
available when a petition is fully unexhausted, not mixed.”
813 F.3d at 910. Analyzing the Supreme Court’s limited
guidance on the issue, we—like three circuits before us 6—
answered the question in the affirmative.

Despite Mena’s recognition of and answer to the open
question, the district court explained it remained “unclear”
whether Mena “should be viewed as a subsequent change in
the law that affected an unsettled area of law.” Bynoe I, 2017
WL 4079263, at *3. The court found that Mena’s
acknowledgement of the issue was not dispositive because
we had previously denied Bynoe a certificate of
appealability on the same issue in an unpublished order. Id.
Relying on that order, the court concluded the denial of the
certificate “suggest[ed] that reasonable jurists . . . would not
have debated the conclusion that district courts could not
stay fully unexhausted petitions.” Id.

Unsettled legal questions are sometimes difficult to
detect, not obvious until presented by the right facts and
circumstances. This was not such a case: Mena resolved an
unanswered question of law, and it explicitly acknowledged
doing so. See 813 F.3d at 910. Despite the district court’s
suggestion to the contrary, unpublished dispositions—like
our denial of Bynoe’s certificate of appealability—do not
settle questions of law. See Phelps, 569 F.3d at 1126–27.

6
See Doe v. Jones, 762 F.3d 1174, 1174 (10th Cir. 2014); Heleva v.
Brooks, 581 F.3d 187, 191 (3d Cir. 2009); Dolis v. Chambers, 454 F.3d
721, 724 (7th Cir. 2006).
20 BYNOE V. BACA

The district court abused its discretion by relying on the
unpublished order in light of Mena’s own jurisprudential
characterization. This factor weighs in Bynoe’s favor.

2.

The second factor considers whether the petitioner
exhibited sufficient diligence in advancing his claim. The
diligence analysis overlaps significantly with the timeliness
requirement in Rule 60(b); a petitioner who has filed his
motion within a “reasonable time” under the Rule has
diligently pursued his claim. See, e.g., Jones, 733 F.3d
at 839 (analyzing diligence by reference to the petitioner’s
delay in filing his Rule 60(b)(6) motion); Hall, 861 F.3d
at 987–88 (evaluating diligence and timeliness together); see
also Miller, 879 F.3d at 699 (explaining that the timeliness
of a Rule 60(b)(6) motion is measured by “considering a
petitioner’s diligence in seeking relief”).

Diligence may also be measured by reference to the
petitioner’s urgency in litigating his claim. In Gonzalez, the
Court concluded the petitioner had failed to diligently pursue
his habeas claim because he did not petition for rehearing
after his certificate of appealability was denied by the
Eleventh Circuit. 545 U.S. at 537. We distinguished the
diligence of the petitioner in Phelps from Gonzalez because
Phelps had appealed the denial of his petition to the Supreme
Court and filed a Rule 60(b) motion within a year of the
relevant change in procedural law. 569 F.3d at 1136–37.
Phelps had also repeatedly sought to have various claims
reviewed over the course of a decade, often without the
assistance of counsel. Id. at 1137.

Bynoe, like Phelps, diligently pursued his present claim.
He filed his Rule 60(b) motion within a “reasonable time”
and promptly sought a certificate of appealability from both
 BYNOE V. BACA 21

the lower court and this court on the issue. Often proceeding
pro se, he exhibited the “effort that a reasonable person
might be expected to deliver under his or her particular
circumstances.” Brooks v. Yates, 818 F.3d 532, 535 (9th Cir.
2016) (internal quotation marks omitted).

Petitioners are not required to file repeated, meritless
habeas petitions or motions to demonstrate diligence, but
Bynoe also fully pursued each of his pre-Mena petitions. He
began litigating the propriety of his guilty plea shortly after
he was sentenced, filing letters and motions with the Nevada
Supreme Court and trial court without the assistance of
counsel. He raised the exhaustion issue six years before
Mena, correctly arguing that his unexhausted petition should
be eligible for a Rhines stay. After he lost that argument, he
sought a certificate appealability on the question, and when
that was denied, he sought a certificate from this court. Once
that was denied, he filed a certiorari petition with the
Supreme Court—but that too was denied. At no point did
Bynoe fail to exercise an appellate right available to him.
This factor weighs in Bynoe’s favor.

3.

We next evaluate whether granting the motion would
somehow “undo the past, executed effects of the judgment.”
Ritter, 811 F.2d at 1402. 7 This factor assesses the extent of
the parties’ reliance interests on the judgment; “relief is less
warranted when the final judgment being challenged has
caused one or more of the parties to change his legal
position” because of the judgment. Phelps, 569 F.3d

7
Ritter was cited favorably by the Supreme Court and “is
instructive” for courts applying Rule 60(b)(6) in the habeas context.
Harvest v. Castro, 531 F.3d 737, 748 n.8 (9th Cir. 2008).
22 BYNOE V. BACA

at 1138. A combined health fund that has used payments it
receives pursuant to a declaratory judgment to cover the
medical health benefits of retirees, for example, has
“substantial[ly]” relied on the judgment. See Blue Diamond
Coal Co. v. Trustees of the UMWA Combined Benefit Fund,
249 F.3d 519, 528–29 (6th Cir. 2001). We evaluate both the
parties’ “abstract interest in finality” and any action each
party took in reliance on the judgment. Henson v. Fid. Nat’l
Fin., Inc., 943 F.3d 434, 450 (9th Cir. 2019).

Nevada has an abstract interest in the finality of its
criminal judgments. “But the ‘whole purpose’ of Rule 60(b)
‘is to make an exception to finality.’” Buck, 137 S. Ct. at 779
(quoting Gonzalez, 545 U.S. at 529). When a habeas petition
is dismissed on flawed procedural grounds, “[t]here are no
‘past effects’ of the judgment that would be disturbed” if the
habeas proceeding were reopened for further consideration,
Phelps, 569 F.3d at 1138, and the state’s interest in finality
“deserves little weight,” Buck, 137 S. Ct. at 779. Bynoe
never had the opportunity to litigate his underlying claims
on the merits in a federal habeas proceeding, and the state
never expended resources disputing them. See Miller,
879 F.3d at 701. He remains incarcerated, and “the parties
would simply pick up where they left off.” Phelps, 569 F.3d
at 1138.

That seven years passed between when the district court
initially denied Bynoe’s request for a Rhines stay and Bynoe
filed his motion does not heighten the importance of the
state’s abstract finality interest; indeed, in Phelps, we found
this factor to be minimal even though Phelps filed his Rule
60(b) motion eleven years after the district court reviewed
his habeas petition. Id. We agree with the district court that
this factor “weighs heavily in [Bynoe’s] favor.” Id. at 1138.
 BYNOE V. BACA 23

4.

We next address the delay between the final judgment in
Bynoe’s case and his Rule 60(b) motion. “This factor
represents the simple principle that a change in the law
should not indefinitely render preexisting judgments subject
to potential challenge. Rather, individuals seeking to have a
new legal rule applied to their otherwise final case should
petition the court for reconsideration with a degree of
promptness[.]” Id. at 1138.

A long delay can be offset by a petitioner’s diligence.
See id. “In this respect, [this] factor is similar, although not
identical, to the second Gonzalez factor, which emphasizes
the petitioner’s diligence in challenging on appeal the
judgment he now seeks to overturn.” Id. Bynoe filed his
Rule 60(b)(6) motion within a year of Mena’s change in law.
In the interim seven years, Bynoe sought Supreme Court
review and, as discussed, exhibited diligence in pursuing his
habeas claims. The district court erred by taking note only
of the seven-year gap between the denial of Bynoe’s request
for a Rhines stay and the filing of his Rule 60(b)(6) motion
and failing to accord appropriate weight to Bynoe’s
diligence and his ultimate timeliness. This factor slightly
favors Bynoe.

5.

The fifth factor asks whether the challenged judgment
has a close relationship to the change in law underlying the
Rule 60(b)(6) motion. Where a court rested its judgment on
a basis only marginally altered by later changes in relevant
law, reopening a judgement is disfavored. See Lopez,
678 F.3d at 1137. Many legal rulings cast some doubt on the
reasoning in previous cases; only those that may have
affected the outcome of the judgment the petitioner seeks to
24 BYNOE V. BACA

review should weigh toward a finding of extraordinary
circumstances.

As applied to Bynoe’s petition, Mena is one such ruling.
Mena rejected the legal core of the district court’s denial of
his request for a Rhines stay. The court denied the stay
because it was “well established law in this circuit that a
petition containing only unexhausted claims must be
dismissed.” Bynoe I, 2009 WL 3060372, at *2 (emphasis
added). Mena directly repudiated this absolute view of the
existing law and held that district courts have discretion to
stay fully unexhausted petitions. 813 F.3d at 910, 912. Had
Mena been the law when Bynoe sought a Rhines stay, the
district court may well have reached a different outcome.

The district court denied Bynoe’s Rule 60(b) motion
because Mena did not mandate a different outcome. See
Bynoe II, 2017 WL 4079263, at *4. But the standard for
evaluating the relationship between intervening law and the
underlying issue in a district court’s dismissal is not whether
the change in law requires a different outcome; we consider
only whether the change in law affects an issue dispositive
to the outcome of the case. See Lopez, 678 F.3d at 1137.
Mena undermined the central premise of the court’s denial
of a Rhines stay. That is sufficient, and this factor weighs in
Bynoe’s favor.

6.

Finally, we consider whether principles of comity weigh
against reopening Bynoe’s habeas proceeding. The
considerations of comity for state laws and other judicial
decisions may sometimes warrant abstention from
overturning well-reasoned results. Comity concerns are
minimal, however, when a petitioner seeks reconsideration
of an erroneous procedural decision. See Phelps, 569 F.3d
 BYNOE V. BACA 25

at 1139–40. In such situations, reopening the decision does
not risk disturbing a court’s reasoned, merits-based
conclusion, because there never was one.

Bynoe seeks reconsideration of the procedural decision
to deny his request for a stay. On this factor, Bynoe’s case
is indistinguishable from Phelps. See id. at 1139. This factor
weighs in Bynoe’s favor.

III.

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 re-opening the final judgment. 8 All six Phelps
factors support reconsidering the district court’s 2009
judgment. The court abused its discretion in denying
Bynoe’s Rule 60(b)(6) motion.

We therefore reverse and remand the district court’s
denial of Bynoe’s Rule 60(b)(6) motion. On remand, Bynoe
may request the district court to stay his petition under
Rhines and Mena while he returns to state court to exhaust
his federal constitutional claims.

REVERSED and REMANDED.

8
We express no views on the merits of Bynoe’s habeas claims in
determining whether the district court abused its discretion in denying
Bynoe’s Rule 60(b) motion.
26 BYNOE V. BACA

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority disposition
because, in my view, the majority does not adhere to the
applicable standard of review, abuse of discretion.

As an initial matter, it is important to note that relief
under Rule 60(b)(6) of the Federal Rules of Civil Procedure
“rarely occur[s] in the habeas context,” and the discretion
afforded district courts in making the determination of
whether relief is warranted is “especially broad.” Miller v.
Mays, 879 F.3d 691, 698 (6th Cir. 2018) (citations and
internal quotation marks omitted) (emphasis in the original);
see also Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)
(directing a “strict interpretation of Rule 60(b)”); Hall v.
Haws, 861 F.3d 977, 987 (9th Cir. 2017) (agreeing that Rule
60(b)(6) should be used “rarely in the habeas context . . .
sparingly as an equitable remedy to prevent manifest
injustice”) (citation omitted).

“The decision to grant Rule 60(b)(6) relief [in the habeas
context] is a case-by-case inquiry that requires the trial court
to intensively balance numerous factors . . .” Hall, 861 F.3d
at 987 (citation omitted) (emphasis added). The discretion
vested in the district court “is a grand reservoir of equitable
power” to be exercised by the district court. Id.

The obvious point is that it is the job of the district court,
not this court, to “intensively balance” Rule 60(b)(6)
factors, id., which balance we review for an abuse of
discretion. See id. at 984. An abuse of discretion occurs if
the district court “does not apply the correct law or if it rests
its decision on a clearly erroneous finding of material fact.”
Id. (citation omitted). There is a clear distinction between
deciding whether the district court applied the incorrect law
(abuse of discretion review) or applied the law incorrectly
 BYNOE V. BACA 27

(de novo review). The former is an appropriate role for our
court under Rule 30(b)(6); the latter is not. See id.

Our task is to examine the balancing of relevant factors
by the district court and determine whether the district court
abused its discretion in conducting that balancing, rather
than conducting the balancing of factors ourselves. See id;
see also Miller, 879 F.3d at 697 (reviewing the district
court’s reasoning). We must keep in mind that the discretion
vested in the Rule 60(b) context is “especially broad due to
the underlying equitable principles involved.” Miller,
879 F.3d at 698 (citation omitted).

The district court first examined whether our decision in
Mena v. Long, 813 F.3d 907 (9th Cir. 2016), addressed an
unsettled area of law. The district court observed that in
Mena, the panel stated that this court “had not previously
addressed the question of whether the question of the Rhines
[v. Weber, 544 U.S. 269 (2005)] stay-and-abey procedure is
available when a petition was fully unexhausted, not mixed.
Mena, 813 F.3d at 910.” On the other hand, the district court
noted that the Ninth Circuit had previously denied Bynoe a
certificate of appealability (COA) on this very issue,
reflecting that the issue was one of settled law within the
Circuit. 1 See Gonzalez v. Thaler, 565 U.S. 134, 140–41
(2012) (explaining that a “petitioner seeking a COA must
show both that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a

1
The fact that the COA ruling was not made in a published decision
did not preclude the district court from considering the ruling as part of
the record of proceedings. See Phelps v. Alameida, 569 F.3d 1120, 1133
(9th Cir. 2009) (instructing that “the proper course when analyzing a
Rule 60(b)(6) motion predicated on an intervening change in the law is
to evaluate the circumstances surrounding the specific motion before the
court”) (emphasis added).
28 BYNOE V. BACA

constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling”) (citation and internal quotation marks
omitted). Denial of Bynoe’s requested COA signified that
he did not make the required showing, i.e., that the issue of
staying and abeying unexhausted habeas petition was
debatable. Denial also conveyed that the law was settled in
a way that was not favorable to Bynoe’s position. See United
States v. Winkles, 795 F.3d 1134, 1143–47 (9th Cir. 2015)
(analyzing the COA standard).

The district court next considered Bynoe’s diligence and
acknowledged that Bynoe had consistently raised the stay-
and-abey issue throughout the proceedings.

The district court analyzed together the factors
concerning reliance on the district court ruling, the delay
between the finality of the judgment and the motion for Rule
60(b) relief, and comity concerns. The district court
acknowledged Bynoe’s contention that the state “relied only
minimally” on the original ruling denying relief, because
once Bynoe’s habeas petition was dismissed the state’s
obligations regarding the matter came to an end. On the
other side of the equation, the court considered the “strong”
comity concerns presented by the state. The district court
was receptive to the state’s argument “that the Supreme
Court has repeatedly recognized that the states have
significant interests in comity and finality, and the
exhaustion requirement is supposed to work in tandem with
the statute of limitations and AEDPA’s limited scope of
review to protect those interests.” The district court’s focus
on the state’s interest is consistent with Supreme Court
precedent. See Calderon v. Thompson, 523 U.S. 538, 555
(1998) (explaining that the limits placed on habeas relief
“reflect [the Supreme Court’s] enduring respect for the
 BYNOE V. BACA 29

State’s interest in the finality of convictions that have
survived direct review within the state court system”)
(citations and internal quotation marks omitted).

Finally, the district court discussed the relationship
between the original decision and the decision embodying
the change in the law. The court contemplated Bynoe’s
argument that the Ninth Circuit’s ruling in Mena completely
negated the district court’s previous order dismissing
Bynoe’s habeas petition. The district court readily
acknowledged that Mena adopted the analysis advanced by
Bynoe in the course of litigating his motion for a stay and
abeyance of his fully unexhausted petition. Nevertheless,
the district court determined that the analysis did not end
there. Rather, the district court observed that even if it had
concluded that it had discretion to stay a fully unexhausted
petition, that determination would not have necessarily
translated into success for Bynoe on his habeas petition.
Consequently, although Mena affected a preliminary portion
of the analysis, the relationship between the district court’s
original decision and Mena was not ultimately of sufficient
import to militate toward a finding of extraordinary
circumstances in the district court’s view.

The majority purports to take issue with the district
court’s exercise of its discretion. However, the majority’s
approach to review of the district court’s ruling is actually
more akin to cases involving de novo review rather than
review for the broad discretion bestowed upon district courts
in this context. Initially, the majority faults the district
court’s determination that our decision in Mena did not
resolve a matter of unsettled law despite the fact that the
district court referenced our denial of a COA requested by
Bynoe on the very issue resolved by Mena. Nevertheless,
the majority concludes that the district court’s reliance on the
30 BYNOE V. BACA

COA was legal error because the order denying the COA
was unpublished. See Majority Opinion, p. 19–20. The
majority relies upon Phelps to support this rationale. See id.
However, Phelps stands for exactly the opposite proposition,
concluding that the area of law was unsettled because of
“various competing memorandum dispositions.” 569 F.3d
at 1126. The Phelps panel left no doubt that the unpublished
dispositions controlled the outcome of the cases before those
panels. See id. (noting that if Phelps’ appeal had been heard
by a panel that favored his position he would have
prevailed). So in Bynoe’s case, where there was no
competing unpublished disposition to render the law
unsettled, the district court appropriately looked to the denial
of the COA to conclude that the law was not unsettled. In
fact, Phelps directs district courts to “evaluate the
circumstances surrounding the specific [Rule 60(b)] motion
before the court.” Id. at 1133. In this case, those
circumstances included the denial of a COA rendered in an
unpublished disposition.

Indeed, the United States Supreme Court has also
considered the denial of a COA in an unpublished
disposition. See Buck v. Davis, 137 S. Ct. 759, 773 (citing
the denial of a COA in Buck v. Stephens, 623 Fed. Appx.
668, 673 (5th Cir. 2015)). And we have similarly referenced
an unpublished disposition addressing a co-defendant’s
habeas claims in the course of resolving a Rule 60(b) issue.
See Hall, 861 F.3d at 983 (referencing habeas relief granted
to a co-defendant in the unpublished disposition of Sherrors
v. Woodford, 425 Fed. Appx. 617 (9th Cir. 2011)). Thus, it
is apparent that the district court’s reference to the denial of
the COA was faithful to our direction in Phelps to “evaluate
the circumstances surrounding the specific [Rule 60(b)]
motion before the court.” 569 F.3d at 1133. And it was
consistent with the practice of the Supreme Court and our
 BYNOE V. BACA 31

court. See Buck, 137 S. Ct. at 773; see also Hall, 861 F.3d
at 983. Because the district court’s reliance on the COA was
not an error of law and was supported by the record, its
determination that Mena did not address a settled area of law
fit comfortably within its “grand reservoir of equitable
power.” Hall, 861 F.3d at 987. The majority’s disregard of
this discretion elides our standard of review.

The district court acknowledged that Bynoe was diligent
in pursuing his habeas claim. However, the majority
attempts to bootstrap this diligence determination into a
finding of timeliness, which is a separate inquiry. See
Majority Opinion, p. 20. In any event, without citation to
any authority, the majority criticizes the district court for
“taking note only of the seven-year gap between the denial
of Bynoe’s request for a Rhines stay and the filing of his Rule
60(b)(6) motion and failing to accord appropriate weight to
Bynoe’s diligence and his ultimate timeliness.” Majority
Opinion, p. 23. However, the district court considered
precisely the factor as articulated in Phelps. See 569 F.3d at
1138 (“The second factor . . . examines the delay between
the finality of the judgment and the motion for Rule 60(b)(6)
relief.”) (citation and internal quotation marks omitted)
(emphasis added).

In Phelps, we reasoned that “[t]his factor represents the
simple principle that a change in the law should not
indefinitely render preexisting judgments subject to
potential challenge.” Id. (emphasis added). Nothing in
Phelps required the district court to temper its finding on the
delay factor by its separate evaluation of the diligence factor.
And there is absolutely no mention of the majority’s newly-
imposed and untethered “ultimate timeliness” consideration.
More importantly, the Phelps factors are only guidelines for
the exercise of the district court’s broad discretion. See id.
32 BYNOE V. BACA

at 1135 (“The factors we discuss below are designed to
guide courts in determining whether such extraordinary
circumstances have been demonstrated . . .) (footnote
reference omitted) (emphases added); see also Hall,
861 F.3d at 987 (noting that the Phelps factors “are not a
rigid or exhaustive checklist”) (citation and internal
quotation marks omitted). Contrary to the majority’s
contention, Bynoe is not in the same position as Phelps was.
As noted by the panel in Phelps, “his original motion for
consideration was filed only four months after the judgment
dismissing his petition became final.” (footnote reference
omitted) (emphasis in the original). Simply put, the district
court acted within its discretion and in harmony with our
decision in Phelps when evaluating the delay factor.

The dissent also takes issue with the district court’s
assessment of the import of Mena. The district court did not
state that Mena failed to mandate a different outcome.
Rather, as discussed, the district court observed that even if
it had determined that it had discretion to stay a fully
unexhausted petition, that determination would not have
necessarily changed the outcome. Ultimately, the outcome
might have changed or it might not have changed.

Finally, the majority disagrees with the district court’s
evaluation of the comity concerns. However, the district
court was completely entitled to adhere to the well-
established “enduring respect for the State’s interest in the
finality of convictions that have survived direct review
within the state court system.” Calderon, 523 U.S. at 555;
see also Miller, 879 F.3d at 700 (discussing the “profound
respect” afforded “finality interests”). The district court
committed no legal error and made no clearly erroneous
finding of fact in weighing the comity factor. See Hall,
861 F.3d at 984. That the majority would have assessed this
 BYNOE V. BACA 33

factor differently does not constitute an abuse of discretion
on the part of the district court. See id.

At bottom, the majority would have weighed the factors
in a different manner. However, that difference of opinion
does not constitute an abuse of discretion. See id. In so
holding, the majority fails to respect the “intensive []
balance” that is to be made by the district court, id. at 987.
and the especially broad discretion vested in the district
court. Miller, 879 F.3d at 698.

Keeping in mind that the relief sought by Bynoe is to be
granted “rarely” and “sparingly” by a district court, Hall,
861 F.3d at 987, I cannot in good conscience impose my own
view of the appropriate weighing of the Phelps factors and
pass it off as abuse of discretion review. Rather, I respect
the “grand reservoir of equitable power” upon which the
district court decision rested. Id.

I respectfully dissent.