The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 48] and STAYING PROCEEDINGS
At Docket No. 48 petitioner Edmond Oscar Walker, a state prisoner appearing through counsel, has moved for reconsideration of the order denying leave to file an amended petition entered at Docket No. 45.
Under the law of the case doctrine a court is generally precluded from reconsidering an issue that has already been decided by the same court or a higher court in the same case.*fn1 However, the law of the case doctrine is not a shackle without a key. If the court enters an interlocutory order without entering a final judgment, e.g., an order granting summary judgment but no final judgment, Federal Rule of Civil Procedure Rule 59 does not apply.*fn2 As long as a district court retains jurisdiction over a case, however, it has inherent power to reconsider and modify an interlocutory order for sufficient cause.*fn3
That inherent power is not unfettered: "the court may reconsider previously decided questions in cases in which there has been an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and would work a manifest injustice."*fn4 In this case, there has been no intervening change in controlling authority, nor has any new evidence surfaced. The sole basis asserted is that the previous disposition was clearly erroneous and would work a manifest injustice.
Walker, appearing pro se, raised a single ground in his petition: the Governor's action in overturning the decision of the parole authority to grant him parole denied him due process in that it was based solely upon the nature of the underlying conviction. In his motion to amend the petition, Walker, represented by appointed counsel, sought to add as a ground that, since at the time he committed his offense, the Governor had no authority to reverse the decision of the parole board to grant him parole, the subsequent amendment to the California Constitution, California Constitution, Article 4, section 5(b), granting him this authority violated the United States Constitution prohibition on ex post facto laws.*fn5 The Court held that because the ex post facto argument was foreclosed by the decision of the Ninth Circuit in Johnson v. Gomez,*fn6 amendment would be futile and denied leave to amend.
In his motion for reconsideration, Walker argues that this Court should disregard Johnson. To support this argument, Walker quotes the Supreme Court in Garner v. Jones:*fn7
When the rule does not by its own terms show a significant risk, [the prisoner] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
Walker argues that when Johnson was decided, the Garner test was unavailable. Walker's premise is that he has alleged facts in his petition that, if proven, the practical implementation of the provision that allows the governor to reverse the grant of parole has resulted in longer periods of incarceration than under the prior law, which satisfies the Garner test.*fn8 As a consequence, he is entitled to relief. The Court disagrees.
This Court is bound by decisions of the Ninth Circuit.*fn9 This Court is, however, not bound to follow the decision of the Ninth Circuit if subsequent higher authority "so undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are irreconcilable."*fn10 If the later decision is not "clearly irreconcilable" with the earlier decision, the earlier decision remains the law of the circuit.*fn1 ...