United States District Court, D. Kansas
CROW U.S. SENIOR DISTRICT JUDGE
matter is a petition for writ of habeas corpus under 28
U.S.C. § 2241. The Court denied the petition for writ of
habeas corpus on March 3, 2009, finding that Petitioner's
claims actually only involved issues of state law and
therefore did not present a valid legal basis for federal
habeas corpus relief. (Doc. 9.) The Court also noted that
Petitioner's “release from prison may moot his
claim for immediate release, [but] it did not moot his claim,
raised in this Petition filed before his release, that he was
held beyond his lawful sentences.” Id. at 11.
On March 31, 2009, Petitioner filed a Notice of Appeal (Doc.
11) as to this Court's Order (Doc. 9) and Judgment (Doc.
10). Petitioner requested a certificate of appealability
(“COA”) to allow him to appeal from this
Court's denial of his petition.
August 4, 2009, the Tenth Circuit Court of Appeals entered an
Order Denying Certificate of Appealability (Doc. 23). The
Tenth Circuit found that “[s]ince Mr. Lucero has been
released from custody, he has already received his requested
relief, and there is simply ‘nothing for us to
remedy.'” Id. at 5 (citation omitted). The
Tenth Circuit held that Petitioner's “release from
detention moots his challenge to the legality of his
[imprisonment].” Id. (citation omitted). The
Tenth Circuit denied Petitioner's motion for a COA as
moot, dismissed the appeal, vacated this Court's
judgment, and remanded to this Court “with instructions
to dismiss without prejudice the underlying case as
moot.” Id. On November 3, 2009, this Court
entered an Order (Doc. 24) and Judgment (Doc. 25) dismissing
this action without prejudice per the instructions on remand
from the Tenth Circuit.
20, 2019, Petitioner filed a Motion to Correct Under Rule
60(b) (Doc. 26), arguing that his case was not moot. (Doc.
26, at 3.) Plaintiff argues that the Tenth Circuit erred and
“took an unduly restrictive view of Petitioner's
claims to find them moot.” Id. at 4.
Petitioner alleges that this “error” by the Tenth
Circuit precluded review of this Court's decision on the
merits. Petitioner then argues that this Court's decision
that a federal right was not involved was in error and he
proceeds to argue the merits of his underlying habeas
petition. Petitioner argues that he is not necessarily
entitled to relief, but that he was denied his entitled
adjudication. Id. at 6. “Petitioner merely
asks this Honorable Court to vacate its earlier procedural
denial and to address the merits under the correct standard
of law.” Id. at 7.
Court has previously held that:
The mandate rule “is a discretion-guiding rule that
generally requires trial court conformity with the
articulated appellate remand.” United States v.
Hicks, 146 F.3d 1198, 1200 (10th Cir. 1998). It provides
that a district court must strictly comply with the mandate
of the reviewing court. “A lower court is ‘bound
to carry the mandate of the upper court into execution and
[cannot] consider the questions which the mandate laid at
rest.'” Estate of Cummings by and through
Montoya v. Community Health Systems, Inc., 881 F.3d 793,
801 (10th Cir. 2018). The court is to look to the mandate for
any limitations on the scope of remand and, in the absence of
such limits, exercise its discretion in determining the
appropriate scope. Dish Network Corp. v. Arrowood Indem.
Co., 772 F.3d 856, 864 (10th Cir. 2014) (citation
The law of the case doctrine, by contrast, provides that when
a court rules on an issue of law, the ruling should continue
to govern the same issues in subsequent stages in the same
case. Vehicle Market Research, Inc. v. Mitchell
Int'l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016)
(citation omitted). After an appeal, the decision of the
appellate court establishes the law of the case and
ordinarily will be followed on remand, with the principle
applicable to all issues previously decided, either
explicitly or by necessary implication. Id. (citing
Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th
Cir. 1995) (internal quotation marks omitted)).
Northern Nat'l Gas Co. v. Approximately 9117.53 Acres
in Pratt, Kingman, No. 10-1232-JTM, 2018 WL 1138284, at
*2-3 (D. Kan. March 2, 2018).
Court's Order and Judgment (Docs. 24, 25) were entered
after remand with instructions from the Tenth Circuit Court
of Appeals. This Court is bound by orders from the Tenth
Circuit. Petitioner has not suggested that he obtained relief
from the Tenth Circuit's August 4, 2009 Order. Because
this Court is bound by the remand order from the Tenth
Circuit, Petitioner's request for relief from this
Court's order is denied.
IS THEREFORE ORDERED BY THE COURT that
Petitioner's Motion to Correct Under Rule 60(b) (Doc. 26)