Lane v. Salazar

Decision Date20 December 2018
Docket Number17-35869,17-35870,Nos. 17-35868,s. 17-35868
Citation911 F.3d 942
Parties Mark Alan LANE, Petitioner-Appellant, v. Josias SALAZAR, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

911 F.3d 942

Mark Alan LANE, Petitioner-Appellant,
v.
Josias SALAZAR, Respondent-Appellee.

Nos. 17-35868
17-35869
17-35870

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2018 Portland, Oregon
Filed December 20, 2018


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.

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.

911 F.3d 946

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 Lane having stabbed someone while in prison. The BOP again sanctioned Lane under Code 203.

In 2010, Lane addressed a letter to the Senate Judiciary Committee and then-Representative Mike Pence. The letter sought to expose what Lane characterized as criminal conduct by the government, and repeated the claim that his conviction was erroneous. At the end of the letter, Lane wrote: "I want to expose this criminal matter! The BUREAU OF PRISONS may not take action. I may be forced to protect myself and take a life. ... I will never let the FEDERAL GOVERNMENT violate my rights, and not take action."

Lane was cited for violating Code 203, and a DHO held a hearing. Lane asserted in a written statement that he intended the language in question as self-defense and not a threat of bodily harm. The DHO found this assertion not credible given that Lane stated he would "take a life," and imposed punishment that included lost good conduct time, disciplinary segregation, and other sanctions.

After exhausting his administrative remedies with respect to each of the three disciplinary proceedings, Lane filed pro se habeas corpus petitions pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Oregon. The district court denied the petitions, finding that "some evidence" supported the BOP's decisions.

On appeal, a panel of this Court found that it could not determine whether the evidence against Lane was sufficient without first determining how to define a "threat" for purposes of Code 203. Lane v. Feather , 610 F. App'x 628, 629 (9th Cir. 2015). Examining the plain language of Code 203, the panel found that the term "should be interpreted to prohibit all threatening statements, whether they amount to true threats or not." Id. The panel next found that its interpretation necessarily implicated Lane's First Amendment rights, meaning that Code 203 could only be valid if it satisfied the test set forth in Procunier v. Martinez , 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott , 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Briefly stated, Procunier requires that where a regulation restricts prisoners from exercising their First Amendment right to send outgoing mail to non-prisoners, that regulation must (1) "further an important or substantial governmental interest unrelated to the suppression of expression" and

911 F.3d 947

(2) "be no greater than is necessary" to protect that interest. 416 U.S. at 413, 94 S.Ct. 1800. The panel remanded the three cases to the district court for supplementation of the factual record with regard to those two points. Feather , 610 F. App'x at 629.

On remand, the government submitted an affidavit from a DHO asserting that Code 203 advances prison security, protects the public from harassing or intimidating communications, and promotes prisoner rehabilitation. The district court held that Code 203 satisfies the Procunier test and denied Lane's § 2241 petitions.

II.

The district court's denial of Lane's petitions is reviewed de novo. McNeely v. Blanas , 336 F.3d 822, 826 (9th Cir. 2003). Purely legal questions, such as whether Code 203 violates the First Amendment under Procunier , are also reviewed de novo. Royse v. Superior Court of State of Wash. , 779 F.2d 573, 575 (9th Cir. 1986).

A.

Lane first argues that Code 203 does not satisfy Procunier's two-part test. Procunier struck down California regulations allowing censorship of letters that "unduly complain," "magnify grievances," or "expres[s] inflammatory political, racial, religious or other views or beliefs" in correspondence between inmates and non-inmates. 416 U.S. at 399, 94 S.Ct. 1800 ; see also id. at 415, 94 S.Ct. 1800. As noted, the Supreme Court first held that interference with outgoing prisoner mail is only justified if the regulation furthers "an important or substantial governmental interest unrelated to the suppression of expression." Id. at 413, 94 S.Ct. 1800. The Court further held that "the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Id.

With respect to the first requirement, the Supreme Court identified three relevant governmental interests: "the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners." Id. at 412, 94 S.Ct. 1800 (footnote omitted). "Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation." Id. at 413, 94 S.Ct. 1800

The second part of the test requires that the limitation be "no greater than is necessary" to protect such interests. Id. The Supreme Court has made clear, however, that Procunier should not be read "as...

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