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 the 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 his loss of twenty-seven 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
DISMISS the petition under 28 U.S.C. § 2244(a) and the
abuse of the writ doctrine.
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 2015,
while incarcerated at FCI-Schuylkill in Minersville,
Pennsylvania, Petitioner received a prison misconduct
sanction for extortion. The sanction entailed the loss of
twenty-seven days of good time credit and other penalties,
and was decided pursuant to a disciplinary proceeding. The
extortion allegation involved a letter he wrote to an
Assistant United States Attorney.
he was transferred to the United States Penitentiary in
Leavenworth, Kansas, Petitioner filed a § 2241 petition
in the United States District Court for the District of
Kansas challenging the disciplinary proceeding. Lane
contended the following amounted to a violation of his due
process rights: (1) he was not allowed to call two witnesses;
(2) he was not permitted to give a verbal statement, rather
he was allowed to provide a written statement; (3) the
hearing officer was not impartial when the officer requested
that the incident report be rewritten; and (4) the hearing
officer's decision did not meet the “some
evidence” standard. Petitioner also asserted in his
Traverse, but not the petition, an argument grounded in the
federal district court in Kansas denied Lane's petition
on the merits, finding that his due process challenges lacked
merit and that his First Amendment argument was conclusory
and not properly presented, Lane v. Maye, No.
16-CV-3105, 2016 WL 4506852 (D. Kan. Aug. 29, 2016), and the
Tenth Circuit affirmed that decision, Lane v. Maye,
664 F. App'x 725 (10th Cir. 2016).
dated the instant petition on July 6, 2017. Lane raises four
claims in the instant petition, three of which he also
asserted in the prior habeas proceedings. Specifically, the
same two due process claims and First Amendment claim
presented in the prior proceeding, and a new, fourth claim
that Bureau of Prisons Code 204 is constitutionally deficient
as void for vagueness. Respondent moved to dismiss the
instant petition as an abuse of the writ on September 15,
2017, and Petitioner timely 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 not reasonably available
factual or legal bases for asserting a claim. 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).
to the above standard, the Court will dismiss Lane's
petition. Lane unsuccessfully raised in the prior petition
the two due process challenges that he raises here. The third
claim, based on the First Amendment, fails because it was not
properly raised in the initial petition, rejected by the
initial habeas review court, or both. Lane v. Maye,
No. 16-CV-3105, 2016 WL 4506852, at *6 (D. Kan. Aug. 29,
2016). Indeed, the prior habeas review court concluded that
this claim was not properly raised in the initial habeas
petition, and in any event, “this allegation . . .
[wa]s nothing more than a ...