and Submitted November 6, 2018
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,
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.
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."
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
SESSIONS, DISTRICT JUDGE
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.
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!"
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.
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."
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