Andrew J. Johnston v. Mark Gutierrez

• Court: District Court, D. Arizona
• Decided: April 9, 2026
• Docket: 4:25-cv-00164
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Andrew J. Johnston, No. CV-25-0164-TUC-SHR (EJM) 10 Petitioner, ORDER

11 v. 12 Mark Gutierrez, 13 Respondent. 14 On March 16, 2026, the Court adopted the Report and Recommendation and 15 dismissed Petitioner’s habeas petition in Case No. CV-24-00005-TUC-SHR (EJM). 16 Johnston v. Gutierrez, Case No. CV-24-00005-TUC-SHR (EJM), Doc. 48. With that case 17 resolved, the Court will lift the stay in the instant action (see Doc. 17) and address the 18 pending motions. 19 A. Motion for Reconsideration 20 Petitioner seeks reconsideration of this Court’s January 9, 2026 Order (Doc. 25) 21 denying his request to withdraw the referral to the magistrate judge and maintaining the 22 stay pending resolution of his parallel habeas petition. (Doc. 26.) 23 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 24 showing of manifest error or a showing of new facts or legal authority that could not have 25 been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g). “A motion 26 for reconsideration should not be used to ask a court ‘to rethink what the court had already 27 thought through—rightly or wrongly.’” Defs. of Wildlife v. Browner, 909 F. Supp. 1342, 28 1351 (D. Ariz. 1995) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 1 F.R.D. 99, 101 (E.D. Va. 1983)). “Arguments that a court was in error on the issues it 2 considered should be directed to the court of appeals.” Id. 3 Petitioner’s motion neither demonstrates manifest error by this Court nor presents 4 any new facts or law that would support reversing the previous Order. Furthermore, the 5 Court has resolved Petitioner’s parallel case. See Johnson v. Gutierrez, Case No. CV-24- 6 005-TUC-SHR (EJM), Doc. 48. Therefore, Petitioner’s request for an immediate lifting of 7 the stay is moot. Petitioner’s motion will be denied. 8 B. Amended Motion for Emergency Temporary Preliminary Injunctive Relief 9 and/or Temporary Restraining Order 10 Petitioner seeks an order (1) “compel[ling] the BOP’s Designation and Sentence 11 Computation Center (DSCC) . . . to immediately adjust the custody classification scoring 12 regarding [Petitioner’s] History of Violence” to “allow immediate application of 13 petitioner’s FSA time credits”; and (2) “compel[ling] the BOP’s Western Regional Office 14 to expedite the immediate approval of the application of petitioner’s earned FSA time 15 credits.” (Doc. 28 at 1.) 16 Whether to grant or deny a motion for a temporary restraining order or preliminary 17 injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 18 1130, 1132–33 (9th Cir. 1979). To obtain a preliminary injunction, the moving party must 19 show “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in 20 the absence of preliminary relief, that the balance of equities tips in his favor, and that an 21 injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 22 (2008). The moving party has the burden of proof on each element of the test. Env’t 23 Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). The Court 24 finds Petitioner has not adequately demonstrated each element of the test. The Court will 25 therefore deny without prejudice Petitioner’s amended motion for preliminary injunction. 26 C. Extension of Time to Respond 27 Respondent seeks additional time to respond to Petitioner’s habeas petition (Doc. 1) 28 and his Amended Motion for Emergency Temporary Preliminary Injunctive Relief and/or 1 || Temporary Restraining Order (Doc. 28). Respondent requests until June 1, 2026, to file 2|| his response. (Doc. 29.) Respondent also reports “the Assistant Warden is in the process 3|| of granting Petitioner an exemption to allow him to apply his FSA time credits 4|| notwithstanding his recidivism level.” (/d. at 2.) This will moot Petitioner’s instant habeas 5 || petition. (/d.) The Court will grant Respondent’s motion (Doc. 29) to the extent it requests || additional time to respond to Petitioner’s Petition (Doc. 1); however, because the Court will deny Petitioner’s Amended Motion for Emergency Temporary Preliminary Injunctive 8 || Relief and/or Temporary Restraining Order (Doc. 28) for failure to meet his burden, || Respondent’s motion regarding a response to that motion will be denied as moot. D. Conclusion 11 For the reasons stated above, IT IS ORDERED: 12 (1) The current stay (see Doc. 17) is LIFTED; 13 (2) Petitioner's Motion for Reconsideration (Doc. 26) is DENIED; 14 (3) Petitioner's Amended Motion for Emergency Temporary Preliminary 15} Injunctive Relief and/or Temporary Restraining Order (Doc. 28) is DENIED; and 16 (4) | Respondent's Motion to Extend Time to Respond to Habeas Petition and || Amended Motion for Injunctive Relief (Doc. 29) is GRANTED IN PART and DENIED 18 || IN PART as stated above. Respondent shall file his response to Petitioner's Petition for || Writ of Habeas Corpus (Doc. 1) on or before June 1, 2026. 20 Dated this 8th day of April, 2026. 21 22

24 Honorable Scott H, Rash United States District Judge 25 26 27 28

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