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Lane v. Salazar

United States Court of Appeals, Ninth Circuit

December 20, 2018

Mark Alan Lane, Petitioner-Appellant,
v.
Josias Salazar, Respondent-Appellee.

          Argued and Submitted November 6, 2018

          Appeal from the United States District Court for the District of Oregon Nos. 3:12-cv-02360-MC 3:13-cv-00005-MC 3:13-cv-00100-MC Michael J. McShane, District Judge, Presiding

          Elizabeth Gillingham Daily (argued), Assistant Federal Public Defender; Stephen R. Sady, Chief Deputy Federal Public Defender; Office of the Federal Public Defender, Portland, Oregon; for Petitioner-Appellant.

          Natalie K. Wight (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; United States Attorney's Office, Portland, Oregon; for Respondent-Appellee.

          Before: Ferdinand F. Fernandez and Sandra S. Ikuta, Circuit Judges, and William K. Sessions III, [*] District Judge.

         SUMMARY [**]

         Habeas Corpus

         The panel affirmed the district court's denials of three 28 U.S.C. § 2241 habeas corpus petitions arising from proceedings in which Mark Alan Lane, who was accused by the Bureau of Prisons of sending threatening letters from prison, was disciplined under BOP Prohibited Acts Code 203, which prohibits inmates from "[t]hreatening another with bodily harm or any other offense."

         Lane contended that Code 203, construed to apply to non-true threats, is unlawfully broad and vague. The panel held that the Code 203's prohibition on threats of bodily harm addresses legitimate penological concerns in a manner that is sufficiently narrow to satisfy constitutional concerns. The panel also held that the BOP's actions were supported by sufficient evidence.

          OPINION

          SESSIONS, DISTRICT JUDGE

         In this consolidated appeal, Mark Alan Lane contests the denials of his three habeas corpus petitions filed under 28 U.S.C. § 2241. Lane was accused by the Bureau of Prisons ("BOP") of sending threatening letters from prison, and was disciplined under BOP Prohibited Acts Code 203. Code 203 prohibits inmates from "[t]hreatening another with bodily harm or any other offense." 28 C.F.R. § 541.3, Table 1. Lane contends that Code 203, construed to apply to non-true threats, is unlawfully broad and vague. He also argues that the evidence against him was insufficient. We disagree. The BOP's prohibition on threats of bodily harm addresses legitimate penological concerns in a manner that is sufficiently narrow to satisfy constitutional concerns. We also find that the evidence against Lane was sufficient. We therefore affirm.

         I.

         On February 27, 2002, Lane was sentenced to 360 months in prison after convictions for drug and money laundering offenses. In 2008, Lane notified the BOP that he believed his underlying criminal sentence was illegal, arguing that the quantity of drugs involved in his offense was erroneously listed as 500 kilograms rather than 500 grams. He pursued his argument through the BOP's Administrative Remedy Program, eventually appealing to the BOP Central Office. As part of his appeal, he included a handwritten letter stating, "I don't Think My judgement and Commitment was 'verified.' I'm going to bet my life. Are you willing to Bet a Guards Life?" The letter then repeated, "Bet a Guard's Life? I don't like it when people play Games with My life!"

         As a result of this letter, Lane received an incident report for violating Code 203. On December 23, 2008, a Discipline Hearing Officer (DHO) held a hearing at which Lane was the only witness to testify. Lane denied the BOP's allegations, stating: "I was trying to let them know I was serious about what I was doing. I wasn't threatening anyone." The DHO nonetheless found that Lane had violated Code 203 and sanctioned him with a loss of 27 days of good time credit, 30 days in disciplinary segregation, and six months without phone privileges.

         In 2009, Lane was again sanctioned for violating Code 203. The punishment was based upon statements made in two outgoing letters. The first, addressed to an individual named Brian Dempsey, stated: "I give Bureau of Prisons staff a chance to follow orders from the Civil Rights Division. I don't want to, I may be forced to take a life! . . . . Pray for me, that the last thing I want to do is cause the next person harm!" The second letter, sent to the United States District Court in Evansville, Indiana, stated in part: "When the deal goes done! I want to make sure they come for you and [Assistant United States Attorney] Mr. Brad Blackington (Criminal charges)." In a postscript, Lane wrote: "That steel does damage to the human body! I personal know!! I had to put some work in at Greenville. The fucker bled like a stuck hog!! The guard asked that I just walk away and leave it alone."

         At a June 10, 2009 hearing, Lane again asserted that he did not intend the letters to be threatening. The DHO considered the first letter a threat of bodily harm, as Lane had threatened to take a life. The second letter's identification of AUSA Blackington was viewed in conjunction with the reference to ...


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