Bynoe (Michael) Vs. Warden ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL BRUCE BYNOE, No. 81083
Appellant,
VS.
ISIDRO BACA, WARDEN, NORTHERN
NEVADA CORRECTIONAL CENTER;
FILED
HAROLD WICKHAM, ACTING NOV 1 0 2021
DIRECTOR, NEVADA DEPARTMENT
ELIZABETH A. BROWN
OF CORRECTIONS; AND AARON D. CLERK QF SUPREPAZi COURT
•‘ ty
FORD, ATTORNEY GENERAL OF THE BY ___IS2
DEPUTY CLERK
STATE OF NEVADA,
Res • ondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Second Judicial District
Court, Washoe County; Barry L. Breslow, Judge. Appellant Michael Bruce
Bynoe argues that the district court erred in denying the petition as
procedurally barred. We affirm.
Bynoe filed the petition more than 19 years after entry of the
judgment of conviction. Thus, his petition was untimely filed. See NRS
34.726(1). The petition was also successive because he had previously
litigated a postconviction petition for a writ of habeas corpus. See NRS
34.810(1)(b)(2); NRS 34.810(2); Bynoe v. State, Docket No. 63478 (Order of
Affirmance, January 15, 2014). Bynoe's petition was procedurally barred
1 Bynoe did not appeal from the judgment of conviction.
01 I - 3 2 3 59
absent a demonstration of good cause and actual prejudice. See NRS
34.726(1); NRS 34.810(3). Good cause may be demonstrated by a showing
that the factual or legal basis for a claim was not reasonably available to be
raised in a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d
503, 506 (2003). Further, as the State specifically pleaded laches, Bynoe
was required to overcome the presumption of prejudice to the State. See
NRS 34.800(2).
Bynoe first argues that this court's decision in Finger v. State,
117 Nev. 548, 27 P.3d 66 (2001), supports a meritorious claim for relief.
Bynoe pleaded guilty but mentally ill to lewdness with a child under 14
years of age in 2000 and argues that he was unconstitutionally prevented
from pleading not guilty by reason of insanity, a plea option that Finger
reinstated the following year. Cf. id. at 550-51, 27 P.3d at 68. We need not
reach the merits of this claim because Bynoe's petition was not filed within
a reasonable time after Finger was decided. See Rippo v. State, 134 Nev.
411, 422, 423 P.3d 1084, 1097 (2018) (concluding that a claim is raised
within a reasonable time when the petition is filed within one year after the
factual or legal basis for the claim became available).
Bynoe next argues that he has good cause because this is his
first state-court habeas petition filed with the assistance of counsel. We
disagree. Bynoe was not entitled to the appointment of postconviction
counsel as a matter of right and thus does not show good cause on this basis.
See Brown v. McDaniel, 130 Nev. 565, 571, 331 P.3d 867, 871-72 (2014).
Bynoe next argues that he has good cause because his mental
illness precluded his filing a timely petition. Mental illness does not provide
good cause. See Phelps v. Dir., Nev. Dep't of Prisons, 104 Nev. 656, 660, 764
2
P.2d 1303, 1306 (1988) (holding that a petitioner's organic brain damage
and poor legal assistance from inmate law clerks did not establish good
cause), superseded by statute on other grounds as stated in State v.
Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003). We decline
Bynoes request to reconsider Phelps.2
Aside from showing of good cause and prejudice, a petitioner
may overcome the procedural bars by showing that failure to consider his
claims would amount to a fundamental miscarriage of justice because he is
actually innocent. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537
(2001); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
Bynoe argues that he was actually innocent because he was not guilty by
reason of insanity and was prevented from raising an insanity defense at
the time his case would have gone to trial had he not entered a guilty plea.
To show actual innocence, Bynoe had to show that "it is more likely than
not that no reasonable juror would have convicted him in the light of the
new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995); see also Pellegrini,
117 Nev. at 887, 34 P.3d at 537. While we have not determined whether
insanity constitutes actual innocence, we need not settle that issue here.
Cf. Pelligrini, 117 Nev. at 890, 34 P.3d at 539 (noting disagreement on this
question and declining to settle the issue). Even assuming that proof of
2Bynoe's invocation of Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), is
unpersuasive, as Bills considered whether mental illness warranted
equitable tolling, id. at 1093, and we have rejected equitable tolling of the
one-year period set forth in NRS 34.726, Brown, 130 Nev. at 576, 331 P.3d
at 874. And, insofar as Bynoe relies on Bills as good cause, the claim was
not raised within a reasonable time of its becoming available. See Rippo,
134 Nev. at 422, 423 P.3d at 1097.
3
insanity can satisfy the actual innocence gateway, Bynoe has not carried
his burden of proof. "To qualify as being legally insane, a defendant must
be in a delusional state such that he cannot know or understand the nature
and capacity of his act, or his delusion must be such that he cannot
appreciate the wrongfulness of his act, that is, that the act is not authorized
by law." Finger, 117 Nev. at 576, 27 P.3d at 84-85. Bynoe focuses on a 2019
psychologises report that concludes he lacked criminal responsibility
largely because he was suffering from severe symptoms of schizophrenia at
the time of the crime. But evidence in the record indicates that Bynoe
understood the nature and capacity of his act and that it was not authorized
by law. Bynoe had been previously convicted for similar conduct molesting
young girls.3 Further, Bynoe made statements while being treated for
schizophrenia that suggest he understood the nature and wrongfulness of
his conduct.4 Lastly, Bynoe's contemporaneous statements from which his
Bynoe had proceeded to trial, his prior convictions likely would
31f
have been admissible to show motive, intent, and absence of mistake. See
NRS 48.045(2).
4Again, if Bynoe had proceeded to trial, his statements likely would
have been admissible because an insanity defense would have put his
mental illness and related treatment at issue. See NRS 51.115 (providing
hearsay rule does not bar statements made for purpose of medical
treatment or diagnosis); see also NRS 49.213(3) (psychologist-patient
privilege waived where the treatment is an element of the defense); NRS
49.245(4) (doctor-patient privilege waived where the condition is an element
of the defense); State v. Long, 575 A.2d 435, 454 (N.J. 1990) (holding
"defendant waived [physician/psychiatrist-patient] privilege when he gave
notice that he intended to pursue an insanity defense in applying New
Jersey statute with nearly identical relevant language), superseded by
4
delusion may be inferred were vague and did not suggest that the conduct
amounting to lewdness was the product of a delusion. The evidence he
offers is too flimsy a basis to conclude that no reasonable juror could have
rejected an insanity defense.5 See Finger, 117 Nev. at 577, 27 P.3d at 85(explaining that an insanity defense requires evidence that "the delusion, if
true, would justify the commission of the criminal act").
Lastly, Bynoe argues that he rebutted the presumption of
prejudice under NRS 34.800(1)(b) based on his showing of actual innocence.
See Berry v. Stctte, 131 Nev. 957, 974, 363 P.3d 1148, 1159 (2015)
(recognizing that a showing of actual innocence will satisfy the showing
required under NRS 34.800(1)(b) to rebut the presumption of prejudice to
the State in retrying a defendant). As noted, Bynoe has not shown actual
innocence. Therefore, he has not rebutted the presumption of prejudice
statute on other grounds as s tated in State v. Townsend, 897 A.2d 316 (N.J.
2006).
5To the extent the district court suggested the actual innocence
gateway is subject to a good cause requirement, we conclude the district
court erred. Nevertheless, we affirm because the district court reached the
correct outcome for the reasons discussed in this order. See State v. Eighth
Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005);
Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (If a judgment
or order of a trial court reaches the right result, although it is based on an
incorrect ground, the judgment or order will be affirmed on appeal.").
5
under NRS 34.800(1)(b).6 The district court thus did not err in alternatively
dismissing the petition under NRS 34.800.
Having considered Bynoe's contentions and concluded they do
not warrant relief, we
ORDER the judgment of the district court AFFIRMED.7
C.J.
Hardesty
J.
Cadish Gibbons
cc: Hon. Barry L. Breslow, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Attorney General/Las Vegas
Washoe County District Attorney
Washoe District Court Clerk
6Bynoe also has not shown reasonable diligence sufficient to rebut the
presumption of prejudice under NRS 34.800(1)(a).
7The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
6