United States District Court, S.D. Indiana, Terre Haute Division
LARRY J. CAFFIE, Petitioner,
JEFFREY KRUEGER, Respondent.
ORDER DENYING GOVERNMENT'S MOTION TO RECONSIDER
OR, IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME TO MOVE TO
RECONSIDER, AND DENYING AS MOOT
PETITIONER'S MOTION OPPOSING RESPONDENT'S PETITION TO
WILLIAM T. LAWRENCE, SENIOR JUDGE
previously conceded to the Court that petitioner Larry
Caffie's petition for relief pursuant to 28 U.S.C. §
2241 should be granted, the Government has now changed its
mind and asks the Court to reconsider its January 25, 2019,
Order, Dkt. No. 41, or in the alternative, provide the
Government with an extension of time to further develop its
newly raised legal arguments for a motion to reconsider. Dkt.
Court is surprised that the Government would even file such a
motion and expect it to be well received. As explained in
more detail below, the Government's motion is meritless.
Reconsideration is not warranted merely because the
Government has now changed its mind. “This is a busy
Court that, of course, prefers to focus its efforts on
motions that at least arguably have merit.” See
Australian Gold, LLC v. Devoted Creations, LLC, No.
1:13-cv-00971-JMS, 2013 WL 5366360, at *2 (S.D. Ind. Sept.
October 20, 2017, petitioner Larry Caffie filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 arguing that his prior Illinois drug
convictions should not have been used to impose a mandatory
life sentence pursuant to 21 U.S.C. § 841 given the
Supreme Court's decision in Mathis v. United
States, 136 S.Ct. 2243 (2016).
October 27, 2017, the Court directed the respondent to
respond to Mr. Caffie's petition by December 22, 2017.
Dkt. No. 4. On December 18, 2017, the Government requested an
extension to February 22, 2018, to respond. Dkt. No. 8. On
February 22, 2018, the Government filed a motion to stay
pending Mr. Caffie's Sixth Circuit appeal in Caffie
v. Warden, Terre Haute FCI, No. 17-6441 (6th Cir. 2017).
Dkt. No. 12.
case was stayed until March 16, 2018, when Mr. Caffie
requested that proceedings resume. Dkt. No. 20. On March 29,
2018, the Government filed its Return to the Order to Show
Cause. Dkt. No. 21. Mr. Caffie filed his reply on April 19,
2018. Dkt. No. 24.
October 2, 2018, Mr. Caffie filed a motion to supplement his
reply, advancing new arguments and citing new authority that
were previously unavailable to him. Dkt. No. 27. Among other
arguments, Mr. Caffie argued that Illinois's definition
of “cocaine” was broader than the federal
definition of “cocaine” because the Illinois
definition included positional isomers. In support, he cited
the Ninth Circuit's holding in Lorenzo v.
Sessions, 902 F.3d 930, 934-35 (9th Cir. 2018)
(“Lorenzo I”) that the California
definition of methamphetamine was overly broad compared to
the federal definition because California law includes
“optical and geometrical isomers, ” whereas the
Controlled Substances Act includes only optical isomers.
October 15, 2018, the Court granted Mr. Caffie's motion
to supplement and directed further briefing from the
Government. Dkt. No. 28.
November 16, 2018, the Government requested its first
extension to December 16, 2018. Dkt. No. 29. The Government
again sought an extension on December 12, 2018, to January
16, 2019. Dkt. No. 35. Finally, on January 15, 2019, the
Government filed its final extension to January 25, 2019,
Dkt. No. 40, which the Court again granted.
January 17, 2019, the Ninth Circuit withdrew its opinion in
Lorenzo I, replacing it with an unpublished
memorandum disposition. Lorenzo v. Whitaker, No.
15-70814, 2019 U.S. App. LEXIS 1544 (9th Cir. Jan. 17, 2019)
(withdrawing Lorenzo I); Lorenzo v.
Whitaker, No. 15-70814, 2019 U.S. App. LEXIS 1599 (9th
Cir. Jan. 17, 2019) (“Lorenzo II”). The
Ninth Circuit, in Lorenzo II, concluded the
Applying the first step in this analysis here, we conclude
the definition of “methamphetamine” applicable to
convictions under California Health & Safety Code
§§ 11378 and 11379(a) is broader than the
definition of methamphetamine under the federal Controlled
Substances Act, 21 U.S.C. § 812. The California
definition includes both optical and geometric isomers of
methamphetamine, whereas the federal definition includes only
optical isomers of methamphetamine. Compare Cal. Health &
Safety Code § 11033, with 21 U.S.C. §§
802(14), 812 Schedule II(c), Schedule III(a)(3). Accordingly,
California law is facially overbroad. See
Martinez-Lopez, 864 F.3d at 1038.
Because this mismatch between the federal and state statutes
is apparent on the face of the statutes, such that no
rational interpretation of either statute would reconcile the
two, Lorenzo is not required to “point to his own case
or other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for which he
argues.” Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007); see United States v. Vidal, 504
F.3d 1072, 1082 (9th Cir. 2007) (en banc) (“[W]hen
‘[t]he state statute's greater breadth is evident
from its text,' a defendant may rely on the statutory
language to establish the statute as overly inclusive.”
(citation omitted)); United States v. Grisel, 488
F.3d 844, 850 (9th Cir. 2007) (en banc) (“Where, as
here, a state statute explicitly defines a crime more broadly
than the generic definition, no ‘legal
imagination,' is required to hold that a realistic
probability exists that the state will apply its statute to
conduct that falls outside the generic definition of the
crime. The state statute's greater breadth is evident
from its text.” (citation omitted)), abrogated on other
grounds by United States v. Stitt, 139 S.Ct. 399
In its petition for panel rehearing, the government contends
the facial overbreadth in California law is of no
significance because geometric isomers of methamphetamine do
not in fact exist. The government also asks us to take
judicial notice of evidence presented in a different case to
support that new assertion. We reject these entreaties.
First, “[a]s a general rule, we will not consider
issues that a party raises for the first time in a petition
for rehearing, ” United States v. Mageno, 786
F.3d 768, 775 (9th Cir. 2015) (quoting Varney v.
Sec'y of Health & Human Servs., 859 F.2d 1396,
1397 (9th Cir. 1988)), or during oral argument, see In re
Pac. Pictures Corp., 679 F.3d 1121, 1130 (9th Cir.
2012). Second, our review generally is limited to the
information in the administrative record. See Fisher v.
INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). The