The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
By Order filed January 21, 2010, movant's post-conviction motions of October 29, 2007, and October 28, 2008, were summarily dismissed as non-cognizable pleadings. Movant has directed a request to the Clerk of the Court to review the records to determine whether her amended 28 U.S.C. § 2255 motion was filed timely, which the court liberally construes as a request for relief from judgment pursuant to Fed. R. Civ. P. 60(b).
Under Rule 60(b), a party may seek relief from judgment and to re-open her case in limited circumstances, "including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 2645-46 (2005). "Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure are addressed to the sound discretion of the district court." Allmerica Financial Life Insurance and Annunity Company v. Llewellyn,139 F.3d 664, 665 (9th Cir. 1997).
Once a decision of law is made, it becomes the "law of the case," and absent clear error or changed circumstances should not be changed. See United States v. Estrada-Lucas, 651 F.2d 1261, 1263-64 (9th Cir.1980). The law of the case doctrine provides that "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998), quoting United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (internal quotation and citation omitted).
In the instant action, movant asks the court to reconsider whether her amended § 2255 motion was filed timely. Movant misses the point entirely. As was noted in the Order summarily dismissing movant's prior post-conviction motions as non-cognizable, the issue was not whether movant had timely filed an amended § 2255 motion; rather, because movant had failed to comply with the November 24, 2009, Order granting movant an extension of time to file objections but expressly not to file an amended § 2255 motion, the court declined to construe that putative amended motion as objections to the October 14, 2009, Findings and Recommendations. Movant in asking that the court deem the amended motion timely wholly misconstrues the posture of the case at the time she filed the amended motion and provides no basis whatever for the court to amend its judgment.
Therefore, IT IS HEREBY ORDERED that movant's January 28, 2010 (docket # 83), construed as a motion for relief from judgment, pursuant to Fed. R. Civ. 60(b), is denied.
© 1992-2010 VersusLaw ...