Gutierrez v. Swarthout

Filing 8

ORDER signed by Magistrate Judge Gregory G. Hollows on 07/12/11 ordering that the court's order of 05/09/11 is affirmed. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HEVERD GUTIERREZ,

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Petitioner,

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No. CIV S-11-1064 GGH P

vs.
GARY SWARTHOUT, Warden,
Respondent.

ORDER
/

On May 24, 2011, petitioner filed a request for reconsideration of the magistrate

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judge’s order filed May 9, 2011, summarily denying petitioner’s application for writ of habeas

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corpus pursuant to Habeas Corpus Rules in § 2254 cases, Rule 2. As petitioner has consented to

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the undersigned’s jurisdiction, the instant motion is construed as seeking to set aside the court’s

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findings and/or alter the judgment. Fed. R. Civ. Proc. 52(a)(6), 52(b), 59(e).

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Under the “law of the case” doctrine, “a court is generally precluded from

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reconsidering an issue that has already been decided by the same court, or a higher court in the

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identical case.” Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.) (cert. denied 508 U.S. 951, 113

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S.Ct. 2443 (1993). The doctrine is not a limitation on a tribunal's power, but rather a guide to

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discretion. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391 (1983). A court may

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have discretion to depart from the law of the case where: 1) the first decision was clearly
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erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is

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substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would

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otherwise result. Failure to apply the doctrine of the law of the case absent one of the requisite

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conditions constitutes an abuse of discretion. Thomas v. Bible, 983 F.2d at 155.
Here, upon review of the entire file, the court finds that its earlier ruling was not

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clearly erroneous; nor do any of the other enumerated conditions exist for reconsidering the

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judgment. Thus the court lacks discretion to depart from the law of the case in this matter.
Therefore, IT IS HEREBY ORDERED that the court’s order of May 9, 2011, is

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affirmed.
DATED: July 12, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:14
guti1064.850

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