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KNIGHT v. UNITED STATES PAROLE COMMN.

August 29, 1989

CARLTON KNIGHT, Petitioner,
v.
UNITED STATES PAROLE COMMISSION and ARTHUR BEELER, Warden, Respondents


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Pro se petitioner, Carlton Knight ("Knight"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Respondents are Arthur Beeler, the Warden of the Metropolitan Correctional Center ("MCC") in Chicago where Knight is incarcerated and the United States Parole Commission ("Commission"). For the reasons stated below, the petition is denied.

 II. FACTUAL BACKGROUND

 The events giving rise to this habeas corpus petition occurred in 1985. In October 1985, Knight was involved in a conspiracy to defraud the brokerage house of Oppenheimer & Co., Inc. ("Oppenheimer"). Knight secured a stolen $ 150,000 Kemper Financial Services check which was deposited in an Oppenheimer account opened by one of Knight's co-conspirators, Anthony Buchanan, a/k/a Gerald Baker. This check was used to purchase 300 shares of Beatrice stock and 500 shares of Financial Service of Santa Barbara stock. In addition, Knight and his co-conspirators attempted to obtain in excess of $ 124,000 in gold coins with the proceeds of the check. These events concerning the Oppenheimer scheme and the stolen $ 150,000 check constituted the first ten counts of an eighteen-count indictment against Knight and his co-conspirators. See Government's Version ("Govt. Ver."), Dec. 11, 1986, at 1-2, 6.

 Knight entered into a pre-plea agreement whereby he agreed to plead guilty to Counts One and Eight of the indictment, which were related to the Oppenheimer scheme. Pursuant to this agreement, the Government agreed to dismiss the remaining counts of the indictment following Knight's sentencing. Presentence Report, Dec. 22, 1986, at 2. Thus, Knight pled guilty to conspiracy and wire fraud pursuant to 18 U.S.C. §§ 371 and 1341, respectively. On January 7, 1987, he was sentenced to five years imprisonment. Knight began serving his sentence on April 28, 1987. Special Reconsideration Hearing Review Summary, Dec. 12, 1988. In July, 1987, his sentence was modified to 46 months.

 At Knight's initial parole hearing, the hearing panel rated Knight's offense behavior as category four severity, because it found that Knight had committed fraud involving an amount between $ 40,000 and $ 200,000. Based on an offense severity rating of four and a salient factor score of seven, the Commission's guidelines established that a range of 20-26 months should be served before release. The Commission accepted the hearing panel's findings and issued a Notice of Action dated March 10, 1988, setting Knight's presumptive parole date at June 28, 1989, a date 26 months after he began serving his sentence.

 Knight timely appealed this decision to the National Appeals Board ("NAB"), pursuant to 28 C.F.R. § 2.26. Although Knight had signed his appeal on March 16, 1988, the NAB did not stamp his appeal as received until August 15, 1988. Because Knight did not know the status of his appeal between March and August, he and his wife, Jennifer Knight, contacted the Commission on several occasions during this time. These communications, which were either by telephone or letter, included a letter written by Jennifer Knight dated August 8, 1988.

 On October 18, 1988, the NAB sent a Notice of Action on Appeal to Knight informing him that his case had been reopened pursuant to 28 C.F.R. § 2.28(f). The Notice of Action on Appeal stated:

 
Based upon a review of your case, it is noted that the offense severity may have been incorrectly rated. Your offense behavior involved a stolen $ 150,000 check, in addition to $ 55,000 in stolen checks.

 28 C.F.R. § 2.28 provides for the scheduling of a special reconsideration hearing "upon receipt of new and significant adverse information."

 On December 7, 1988, the special reconsideration hearing was held. The hearing panel found that Knight was involved in a total of $ 238,448 in fraudulent checks. This total included the stolen $ 150,000 check used in the Oppenheimer scheme, the $ 55,000 in stolen checks used in the Citicorp and Home Savings schemes, and the $ 33,448 check deposited at the Hyde Park Bank & Trust Co. Special Reconsideration Hearing Review Summary, Dec. 12, 1988. Thus, the Commission recalculated Knight's offense severity as category five, having found Knight participated in fraudulent acts involving a total amount between $ 200,000 and $ 1,000,000.

  In his petition for habeas corpus, Knight makes three principal arguments. *fn1" First, Knight argues that the Commission frustrated the intent of the sentencing judge in determining his eligibility for parole. Next, he argues that the delay in processing his appeal violated his due process rights. Finally, Knight argues that there were problems with the special reconsideration hearing. Namely, Knight argues that the Commission violated his due process rights by ...


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