Johnston v. Gutierrez

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Andrew J. Johnston,
Petitioner,
v.
Mark Gutierrez,
Respondent.
No. CV-25-0164-TUC-SHR (EJM)
ORDER
On March 16, 2026, the Court adopted the Report and Recommendation and
dismissed Petitioner’s habeas petition in Case No. CV-24-00005-TUC-SHR (EJM).
Johnston v. Gutierrez, Case No. CV-24-00005-TUC-SHR (EJM), Doc. 48. With that case
resolved, the Court will lift the stay in the instant action (see Doc. 17) and address the
pending motions.
A. Motion for Reconsideration
Petitioner seeks reconsideration of this Court’s January 9, 2026 Order (Doc. 25)
denying his request to withdraw the referral to the magistrate judge and maintaining the
stay pending resolution of his parallel habeas petition. (Doc. 26.)
“The Court will ordinarily deny a motion for reconsideration of an Order absent a
showing of manifest error or a showing of new facts or legal authority that could not have
been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g). “A motion
for reconsideration should not be used to ask a court ‘to rethink what the court had already
thought through—rightly or wrongly.’” Defs. of Wildlife v. Browner, 909 F. Supp. 1342,
1351 (D. Ariz. 1995) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99
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F.R.D. 99, 101 (E.D. Va. 1983)). “Arguments that a court was in error on the issues it
considered should be directed to the court of appeals.” Id.
Petitioner’s motion neither demonstrates manifest error by this Court nor presents
any new facts or law that would support reversing the previous Order. Furthermore, the
Court has resolved Petitioner’s parallel case. See Johnson v. Gutierrez, Case No. CV-24-
005-TUC-SHR (EJM), Doc. 48. Therefore, Petitioner’s request for an immediate lifting of
the stay is moot. Petitioner’s motion will be denied.
B. Amended Motion for Emergency Temporary Preliminary Injunctive Relief
and/or Temporary Restraining Order
Petitioner seeks an order (1) “compel[ling] the BOP’s Designation and Sentence
Computation Center (DSCC) . . . to immediately adjust the custody classification scoring
regarding [Petitioner’s] History of Violence” to “allow immediate application of
petitioner’s FSA time credits”; and (2) “compel[ling] the BOP’s Western Regional Office
to expedite the immediate approval of the application of petitioner’s earned FSA time
credits.” (Doc. 28 at 1.)
Whether to grant or deny a motion for a temporary restraining order or preliminary
injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d
1130, 1132–33 (9th Cir. 1979). To obtain a preliminary injunction, the moving party must
show “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). The moving party has the burden of proof on each element of the test. Env’t
Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). The Court
finds Petitioner has not adequately demonstrated each element of the test. The Court will
therefore deny without prejudice Petitioner’s amended motion for preliminary injunction.
C. Extension of Time to Respond
Respondent seeks additional time to respond to Petitioner’s habeas petition (Doc. 1)
and his Amended Motion for Emergency Temporary Preliminary Injunctive Relief and/or
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Temporary Restraining Order (Doc. 28). Respondent requests until June 1, 2026, to file
his response. (Doc. 29.) Respondent also reports “the Assistant Warden is in the process
of granting Petitioner an exemption to allow him to apply his FSA time credits
notwithstanding his recidivism level.” (Id. at 2.) This will moot Petitioner’s instant habeas
petition. (Id.) 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
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
For the reasons stated above, IT IS ORDERED:
(1) The current stay (see Doc. 17) is LIFTED;
(2) Petitioner's Motion for Reconsideration (Doc. 26) is DENIED;
(3) Petitioner's Amended Motion for Emergency Temporary Preliminary
Injunctive Relief and/or Temporary Restraining Order (Doc. 28) is DENIED; and
(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
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.
Dated this 8th day of April, 2026.
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