Knight v. US Parole Com'n, 88 C 10601.
| Decision Date | 14 September 1989 |
| Docket Number | No. 88 C 10601.,88 C 10601. |
| Citation | 721 F. Supp. 974 |
| Parties | Carlton KNIGHT, Petitioner, v. UNITED STATES PAROLE COMMISSION and Arthur Beeler, Warden, Respondents. |
| Court | U.S. District Court — Northern District of Illinois |
Carlton Knight, Chicago, Ill., pro se.
Asst. U.S. Atty. Ann L. Wallace, Chicago, Ill., for respondents; Sharon Gervasoni, Asst. General Counsel, U.S. Parole Com'n, Chevy Chase, Md., of counsel.
AMENDED MEMORANDUM OPINION AND ORDER
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.
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.
The remaining eight counts of the indictment concerned several unrelated incidents which occurred in 1985 with other stolen checks. In April 1985, Paul Perry, a/k/a Nathaniel Williams ("Perry"), another of Knight's co-conspirators, opened a savings account at the Home Savings of America Bank ("Home Savings"), 5250 S. Lakepark Ave., Chicago, Illinois. Between April 30, 1985 and July 1, 1985, Perry deposited five stolen U.S. Treasury checks valued in excess of $40,000 into the account and subsequently made withdrawals totalling $40,000. Govt.Ver., at 5. In May, 1985, Perry opened an account at Citicorp Savings, 7 South Dearborn, Chicago, Illinois. Perry used this account to deposit $15,000 in stolen checks. Perry later withdrew the entire $15,000. Govt.Ver., at 6. Thus, the total amount involved in the Home Savings and Citicorp schemes was $55,000. Knight admitted his involvement in the Home Savings scheme, and the Government attributed to Knight involvement in the Citicorp scheme as well. Govt.Ver., at 7. Finally, on November 19, 1985, Knight deposited a stolen $33,448 check into an account at the Hyde Park Bank & Trust Co. in Chicago. Govt.Ver., at 3.
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.1 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 reopening his case and that the information used in recalculating his offense severity rating was not "new" as required by 28 C.F.R. § 2.28.
Knight argues that the Commission's decision regarding his eligibility for release on parole thwarted the intentions of the sentencing judge. At the time of sentencing, a district court judge is confronted with three possibilities for setting the time of eligibility for release on parole. A judge may impose a sentence pursuant to 18 U.S.C. § 4205(a)2 which states that a prisoner shall be eligible for parole after serving one-third of his term; a judge may impose a sentence pursuant to 18 U.S.C. § 4205(b)(1) which allows the sentencing judge to set a minimum term to be served, at the expiration of which the prisoner is eligible for parole; or the judge may impose a sentence pursuant to 18 U.S.C. § 4205(b)(2) under which the judge may set a maximum term to be served, allowing the Parole Commission to determine the time for release on parole. Normally, a judge specifies the applicable paragraph of 18 U.S.C. § 4205 on the Judgment and Probation/Commitment Order ("the Judgment Order") when issuing the sentence. However, in Knight's case, the judge did not indicate which paragraph of § 4205 was used.
Knight argues that his sentence was imposed pursuant to 18 U.S.C. 4205(b)(1), since the Judgment Order did not explicitly specify a sentencing statute. Knight also contends that 18 U.S.C. § 4205(b)(1), rather than 18 U.S.C. § 4205(a), more accurately reflects the intentions of the sentencing judge. Presumably, Knight believes that he will be released sooner under a § 4205(b)(1) sentence. In United States v. Fountain, 768 F.2d 790, 799 (7th Cir.1985), the court noted that "the apparent purpose of 18 U.S.C. § 4205(b)(1) is to allow release on parole before the earliest date allowed by 18 U.S.C. § 4205(a)." Therefore, Knight is correct in assuming that that § 4205(b)(1) creates the possibility of an earlier parole eligibility date. However, § 4205 only makes a prisoner eligible for parole and guarantees that the prisoner will be considered for parole by the Commission at a particular time; it does not guarantee an actual release date. See Kajevic v. Baer, 588 F.Supp. 1061 (E.D.Mich.1984).
However, the Court still must consider the effect of failing to specify a sentencing statute on the Judgment Order. In order to do this, the Court must interpret the language of 18 U.S.C. § 4205. The Court follows the traditional rules of statutory interpretation, noting particularly that it is the duty of the judiciary "to give effect, if possible, to every clause and word of a statute." United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955).
Section 4205(a) begins with the following language: "Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms...." 18 U.S.C. § 4205(a) (emphasis added). Under section 4205(b)(1), however, a sentencing court, "when in its opinion the ends of justice and best interest of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court." 18 U.S.C. § 4205(b)(1) (emphasis added).
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