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Caffie v. Krueger

United States District Court, S.D. Indiana, Terre Haute Division

February 26, 2019

LARRY J. CAFFIE, Petitioner,
v.
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 RECONSIDER

          HON. WILLIAM T. LAWRENCE, SENIOR JUDGE

         Having 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. No. 46.

         The 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. 25, 2013).

         I. Procedural Background

         On 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).

         On 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.

         The 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.

         On 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.

         On October 15, 2018, the Court granted Mr. Caffie's motion to supplement and directed further briefing from the Government. Dkt. No. 28.

         On 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.

         On 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 following:

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 (2018).
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 ...

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