United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT
OF HABEAS CORPUS 
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
Mark Lane, currently confined at a federal correctional
institution in Milan, Michigan, has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. Petitioner challenges a prison disciplinary proceeding
which resulted in the loss of fourteen days of good time
credits. This matter is before the Court on Respondent's
Motion to Dismiss the Petition. For the reasons stated
herein, the Court shall GRANT Respondent's Motion, and
thus, will DISMISS the Petition under 28 U.S.C. §
2002, Petitioner was convicted of drug and conspiracy
offenses in the United States District Court for the Southern
District of Indiana, and was sentenced to thirty years
imprisonment and five years of supervised release. In 2014,
while incarcerated at a federal correctional institution in
California, Petitioner received a prison misconduct sanction
for refusing to work or accept a program assignment; this
sanction resulted in his loss of fourteen days of good time
credit and other penalties.
he was transferred to a federal penitentiary in Leavenworth,
Kansas, Petitioner filed a § 2241 petition in the United
States District Court for the District of Kansas challenging
the proceeding which led to his prison misconduct sanction.
He asserts that the Government denied him due process in this
proceeding because he was not present at the disciplinary
hearing and the hearing officer's conclusion was not
based on information sufficient to meet the “some
evidence” standard. The district court denied
Lane's petition on the merits, Lane v. Maye, No.
16-CV-3094, 2016 WL 4430672 (D. Kan. Aug. 22, 2016), and the
Tenth Circuit affirmed that decision, Lane v. Maye,
671 F. App'x 721 (10th Cir. 2016).
petition before this Court, Lane raises the same two claims
that he asserted in his prior habeas petition, and a new,
third claim that Bureau of Prisons Code 306 is
constitutionally deficient as void for vagueness. Respondent
moved to dismiss the petition as an abuse of the writ on
September 19, 2017, and Petitioner filed a reply.
courts may dismiss-without addressing the merits-a
petitioner's successive habeas petition if the petitioner
raises challenges to his confinement already asserted in his
prior habeas petition, or challenges that could have been
raised in the earlier petition. Indeed, 28 U.S.C. §
2244(a) provides that:
No circuit or district judge shall be required to entertain
an application for a writ of habeas corpus to inquire into
the detention of a person pursuant to a judgment of a court
of the United States if it appears that the legality of such
detention has been determined by a judge or court of the
United States on a prior application for a writ of habeas
corpus, except as provided in section 2255.
See also McClesky v. Zant, 499 U.S. 467, 483-84
(1991); Dietz v. U.S. Parole Comm'n, 260 F.
App'x 763, 766 (6th Cir. 2008); Moses v. United
States, No. 95-5472, 1996 WL 132157, *1 (6th Cir. 1996);
accord Cook v. Pearce, 639 F. App'x 283, 284
(5th Cir. 2016) (per curiam); Antonelli v. Warden,
542 F.3d 1348, 1352 (11th Cir. 2008); Queen v.
Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam);
Thunder v. U.S. Parole Comm'n, 165 F. App'x
666, 668 (10th Cir. 2006). “An ‘abusive
petition' occurs ‘where a prisoner files a petition
raising grounds that were available but not relied upon in a
prior petition, or engages in other conduct that
disentitle[s] him to the relief he seeks.' ”
Schlup v. Delo, 513 U.S. 298, 318 n.34 (1995)
(alteration in original) (quoting Kuhlmann v.
Wilson, 477 U.S. 436, 444 n.6 (plurality opinion)).
petitioner may mount a successful challenge to the
government's assertion of an abuse of writ through only
two avenues: by showing (1) cause to excuse the failure to
raise a claim in a prior petition and actual prejudice from
this failure, or (2) the existence of “a fundamental
miscarriage of justice.” See McClesky, 499
U.S. at 494-95. First, to establish cause, petitioners must
demonstrate constitutionally ineffective assistance of
counsel or that “ ‘some objective factor external
to the defense impeded counsel's efforts.' ”
Id. (quoting Murray v. Carrier, 477 U.S.
478, 492 (1986)). Objective factors external to the defense
include interference by officials or factual or legal bases
not reasonably available. Id. at 494. (citing
Murray, 477 U.S. at 488). Second, the miscarriage of
justice exception requires a showing that “a
constitutional violation probably has caused the conviction
of one innocent of the crime.” Id. at 494.
Moreover, actual innocence means factual innocence, not mere
legal insufficiency. Bousley v. United States, 523
U.S. 614, 623 (1998).
this approach here, Lane's petition fails as an initial
matter because he asserts claims that he raised, or could
have raised, in the prior habeas petition. Indeed, Lane
unsuccessfully raised in his first habeas petition two claims
that he also pursues here-that he was not present at the
disciplinary hearing and that the hearing officer's
determination was not supported by some evidence. In
addition, although Lane presents a new argument that Code 306
is void for vagueness, this contention could have been raised
in the prior proceeding.
fails to establish that an exception applies to his case. He
does not show cause and actual prejudice for his failure to
raise these claims in the prior proceeding, and fails to show
that a fundamental miscarriage of justice has occurred. His
habeas petition, then, is ...