                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Lester Knighten,                          )
                                          )
                      Petitioner,         )
                                          )
       v.                                 )                                Civil Action No. 14-1588 (CKK)
                                          )
United States Parole Commission, et al.,  )
                                          )
                      Respondents.        )
_________________________________________ )


                                         MEMORANDUM OPINION

         This matter is before the Court on Lester Knighten’s “Motion for Issuance of a Writ of

Mandamus or Similar Relief Based on the United States Parole Commission’s Refusal to

Terminate Supervision Pursuant to 18 U.S.C. [§] 4211(c)(1) and 28 C.F.R. [§] 2.43(c),” which is

construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. 1 For the reasons

discussed below, the petition will be denied.

                                                I. BACKGROUND

         Petitioner, formerly enlisted in the United States Navy, was convicted under the Uniform

Code of Military Justice (“UCMJ”) by a general court-martial of disobeying a lawful order of his


1
   Petitioner initially filed the petition in the United States District Court for the Northern District of Illinois, and
that court treated the petition as one for a writ of habeas corpus under 28 U.S.C. § 2241 before transferring the
matter sua sponte to this district based on the location of petitioner’s custodian, the Naval Clemency and Parole
Board. See Knighten v. U.S. Parole Comm’n, No. 13 C 7114, 2014 WL 2014 WL 4627813 (N.D. Ill. Sept. 16,
2013). Because petitioner remains under parole supervision, he is “in custody” for purposes of 28 U.S.C. § 2241.
See Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (“Parole is a form of ‘custody’, so it is proper to
use § 2241 to contest its continuation . . . .”); Ramsey v. U.S. Parole Comm’n, __ F. Supp. 3d __, 2015 WL 970668,
at *4 (D.D.C. Mar. 4, 2015) (“A petitioner who is on parole is in government custody for the purposes of
seeking habeas corpus relief.”), appeal docketed, No. 15-5121 (D.C. Cir. Apr. 29, 2015). Petitioner’s claims under
the Administrative Procedure Act, see Pet. at 2, 4, 8-10, will be dismissed.


                                                            1
commanding officer, and of rape, sodomy, and indecent acts upon the body of his 12-year old

step-daughter. See Federal Respondents’ Opposition to Petitioner’s Petition for a Writ of Habeas

Corpus, ECF No. 39 (“Fed. Opp’n”), Exs. B & B-1 (respectively, General Court-Martial Order

1-97 and Naval Clemency and Parole Board Summary). On February14, 1997, he was sentenced

to a 20-year term of confinement. Id., Ex. B at 2. Initially petitioner was confined at the United

States Disciplinary Barracks in Fort Leavenworth, Kansas. See id. at 2. He was transferred to

the custody of the Federal Bureau of Prisons (“BOP”) on August 2, 2002. 2 Id., Ex. A (Sentence

Monitoring Computation Data as of 06-14-2006) at 1. “Through good conduct and successful

program participation, [he] earned a transfer to the low security federal facility in Beaumont,

Texas.” Petitioner’s Response to the R[e]spondent’s Answer Opposing Petitioner’s Writ of

Mandamus/Writ of Habeas Corpus, ECF No. 42 (“Pet’r’s Reply”) at 3 (page numbers designated

by ECF). The United States Parole Commission (“USPC”) released petitioner on parole from

the Beaumont facility on December 4, 2006, and he is to remain under parole supervision

through December 4, 2016. Pet’r’s Reply at 3; Fed. Opp’n, Ex. E (Certificate of Parole) at 1.

        Supervision reports from December 2006 through 2010 reflected petitioner’s satisfactory

adjustment to supervision. Fed. Opp’n, Exs. G-H (respectively, Supervision Reports covering

period from December 4, 2006 through December 4, 2008, and period from December 4, 2008

through April 6, 2010). On June 9, 2010, the USPC conducted a parole termination hearing. See

generally id., Ex. J (Termination Hearing Summary). The hearing examiner stated:

                 The subject’s completion [of a] Sex Offender Treatment Program
                 [and] his interaction with his two biological daughters 18 and 19
                 years of age who live in Maryland and his stepdaughter who is 22
                 or 23 [who] lives at [the] home [he] and his wife have bought . . .
                 demonstrate[] that he is on the appropriate path. This examiner does

2
   See 10 U.S.C. § 858(a) (“[A] sentence adjudged by a court-martial . . . may be carried into execution by
confinement in any place of confinement under the control of any of the armed forces or in penal or correctional
institution under the control of the United States . . . .”).

                                                         2
               not believe that there is a likelihood the subject will commit another
               criminal act or a safety issue if he is terminated from supervision . .
               . . [T]his examiner believes our subject is ready for release on
               12/4/2011.
Id., Ex. J at 2. The USPC disagreed, however, noting “that the instability of [petitioner’s]

employment record indicates an increased likelihood that [he] will engage in criminal behavior

and that continued supervision [was] necessary to monitor [his] compliance.” Id., Ex. L (Notice

of Action dated September 2, 2011). Petitioner’s appeal to the National Appeals Board was

unsuccessful. See Fed. Opp’n, Ex. M (Notice of Action on Appeal dated December 12, 2011).

       Subsequently, on the realization that it lacked authority to terminate parole supervision of

a person sentenced under the UCMJ, the USPC referred to the Naval Clemency and Parole Board

(“NC&PB”) a supervision report for the period from April 6, 2010 through May 1, 2012, and a

motion for early termination of parole supervision submitted by petitioner’s counsel. See id.,

Exs. O-P (respectively, Letter to USPC from John F. Murphy, Federal Defender Program. U.S.

District Court for the Northern District of Illinois, dated May 15, 2012 with attachments, and

Letter to Michael Pentangelo, Supervision Officer, Northern District of Illinois, from Corey D.

Mitchell, Case Analyst, USPC, dated June 19, 2012).

       Petitioner submitted to the NC&PB requests for clemency in July 2012 and September

2013. Id., Exs. Q & T (respectively, NC&PB Parolee Clemency Request Statements dated July

27, 2012 and September 19, 2013). Notwithstanding petitioner’s “satisfactory adjustment to

supervision,” stable employment and completion of sex offender treatment in 2010, id., Ex. R

(Naval Clemency and Parole Board Supervision Report dated April 7, 2012) at 2, early

termination of parole was not recommended due to United States Probation Office policy with

respect to sex offenses, id., Ex. R at 1; see id., Exs. U & W (respectively, Naval Clemency and




                                                 3
Parole Board Supervision Reports dated September 24, 2013 and January 15, 2014). His parole

officer stated:

                  The first 2-3 years of his period of supervision were somewhat
                  contentious in that he had . . . a difficult time transitioning to his
                  status as a sex offender and accepting/dealing with the shame that
                  he experienced as a result. This did not translate into specific
                  noncompliance per say [sic], but rather manifested more specifically
                  in his ability to emotionally adjust. It took him some time to obtain
                  legitimate employment. He seemed to want to avoid certain
                  interactions that would require him to face the fact that he is a
                  convicted sex offender and with that[] comes a very negative stigma.
                  He worked on this issue in treatment and came to a broader
                  resolution and acceptance that appears to have allowed him to move
                  forward in accepting responsibility for what this label brings and
                  how he must manage it accordingly. He has been employed steadily
                  . . . , is a home owner, and appears to remain somewhat active in his
                  community partaking in church sponsored events. He seems to have
                  a stable relationship with his wife . . . . Although his adjustment to
                  supervision has been without obvious issue for the past 3 years or
                  so, my office restricts me from making a recommendation for early
                  termination based solely on his offense, notwithstanding the notion
                  that he remains compliant with supervision . . . and appears to be . .
                  . cooperating with the legal restrictions set forth in his judgment.
                  His adjustment to supervision is satisfactory.
Id., Ex. U (email to Randall R. Lamoureaux, President, NC&PB, from Michael Pentangelo dated

October 15, 2013).

        Petitioner brings this action against both the USPC and the NC&PB asking that his parole

supervision be terminated. See Motion for Issuance of a Writ of Mandamus or Similar Relief

Based on the United States Parole Commission’s Refusal to Terminate Supervision Pursuant to

18 U.S.C. [§] 4211(c)(1) and 28 C.F.R. [§] 2.43(c), ECF No. 1 (“Pet.”) at 1, 10-11 (page

numbers designated by ECF).

                                           II. DISCUSSION

                                 A. United States Parole Commission




                                                    4
          According to petitioner, his parole supervision was “scheduled to expire on December 04,

2011 after five years of supervision according to the conditional language and guidance of 18

U.S.C. [§ 4211(c)(1)].” Pet. at 2. He further has asserted that the USPC must review his parole

status annually, yet aside from a hearing in 2011, id. at 3, it “has literally ignored [petitioner’s]

subsequent requests for parole release review,” id. at 4. Petitioner attributed the USPC’s inaction

to its “effort to perpetuate its own existence,” id. at 5, since abolition of federal parole in 1987

and its dwindling caseload, see id. at 6-7. He faulted the USPC for refusing to terminate parole

supervision, id. at 1, in violation his right to due process under the Fifth Amendment to the

United States Constitution, see id. at 1, 8.

          Petitioner’s claims against the USPC are premised upon two mistaken beliefs. First,

petitioner presumes that the USPC is authorized to terminate parole supervision. It is the

Secretary of Defense or his designee, however, who is authorized to “remit or suspend any part

or amount of the unexecuted part of any sentence” imposed under the UCMJ. 10 U.S.C. §

874(a). Because petitioner “is serving a sentence under the [UCMJ], early termination by the

[USPC] is not authorized.” Resp’t Opp’n, Ex. K (excerpt from USPC Rules and Procedures

Manual) at 3. If the USPC determines that the early termination of parole supervision is

warranted, it must refer the matter to the appropriate military clemency board, which in

petitioner’s circumstances is the NC&PB. 3 Id., Ex. K at 3.

          Second, petitioner contends that he has a protected interest in early termination of parole

supervision. As there is no “constitutional . . . right of a convicted person to be conditionally

released before the expiration of a valid sentence,” Greenholtz v. Inmates of the Nebraska Penal

and Corr. Complex, 442 U.S. 1, 7 (1979), it follows that a parolee has no right to the early



3
    It follows that the USPC conducted a parole termination hearing on June 9, 2011 in error.

                                                          5
termination of parole supervision, see Myers v. U.S. Parole Comm’n, 813 F.2d 957, 960 (9th Cir.

1987) (“No court or legislature has recognized a constitutional or statutory entitlement to early

termination of parole, and we decline to do so here.”); Kennedy v. Reilly, No. L–09–1802, 2010

WL 761204, at *2 (D. Md. Mar. 1, 2010), aff’d, 393 F. App’x 111 (4th Cir. 2010) (per curiam). 4

         “In this case, the NCPB has control over the conditions of [p]etitioner’s parole, whereas

the USPC merely oversees [his] parole in a supervisory capacity.” Knighten, 2014 WL 4627813,

at *2. The NC&PB thus retains jurisdiction over the early termination of parole supervision, and

petitioner’s claims against the USPC therefore will be dismissed.

                                    B. Naval Clemency and Parole Board

         Each Military Department establishes a Clemency and Parole Board “to serve as the

primary authority for administration of clemency [and] parole . . . policy and programs,” and

with exceptions not relevant to this case, “shall have approval authority for all clemency [and]

parole . . . actions[.]” Department of Defense Instruction 1325.07, Administration of Military

Correctional Facilities and Clemency and Parole Authority (March 11, 2013), Enclosure 2, para.

16(d). 5 The board may entertain requests from “[a] prisoner released on supervision . . . upon

the prisoner’s request. . . for clemency . . . until expiration of the sentence.” Id., Enclosure 2,

para. 17.e. If the victim of the prisoner’s underlying offense is under 16 years of age, a request

for clemency must be approved by the Secretary of the Navy. See Fed. Opp’n, Ex. Y

(NCPB/NC&PB Policy Letter 1-03).




4
   “There is no constitutional, statutory or regulatory right or entitlement for an individual to be granted clemency or
to be released on parole.” SECNAVINST 5815.3J ¶ 310(o) (emphasis removed).
5
   Department of Defense Instruction 1325.07 can be found at:
http://www.dtic.mil/whs/directives/corres/pdf/132507p.pdf.

                                                           6
       In petitioner’s case, the NC&PB is the entity with the authority to terminate parole. See

SECNAVINST 5815.3J ¶¶ 304, 401. 6 The NC&PB’s objectives are:

               a. The preservation of good order and discipline.
               b. Equality in the administration of justice, including elimination of
               severe sentence disparity by the remission, mitigation, or suspension
               of the disparate portion of the sentence.

Id. ¶ 309. In determining “[t]he appropriateness of clemency or parole in an offender’s case,”

the NC&PB considers its “objectives and on the basis of . . . criteria” which include:

               a. Nature of circumstances of the offenses as determined from the
               record of trial and allied papers, the court-martial order, and relevant
               investigative reports, if available.
               b. Military and civilian background of the offender . . . . .
               c. Post-trial progress report[s], to include an evaluation of the
               offender’s post-trial attitude, conduct and performance . . . . Also
               relevant is whether the offender has recognized the wrongfulness of
               his . . . confining offense, shown genuine remorse, achieved a sense
               of purpose, demonstrated a desire for self-improvement, or
               exhibited self-discipline . . . [and]
               f. Any statement by any victim . . . .

Id. ¶ 310.

       The Court’s review of the decision of the NC&PB is limited. See Miller v. Air Force

Clemency & Parole Bd., No. 10–2621, 2011 WL 4402497 at *9 (D. Md. Sept. 20, 2011), aff’d,

472 F. App’x 210 (4th Cir. 2012) (per curiam). “The inquiry is not whether the decision is

supported by the preponderance of the evidence, but whether there is a rational basis in the

record for the Board’s conclusion.” Id. (citing Misasi v. U.S. Parole Comm’n, 835 F.2d 754, 758

(10th Cir. 1987)).




6
   Respondents describe SECNAVINST 5815.3J as “[t]he instruction governing the Department of the Navy
Clemency and Parole System.” Fed. Opp’n at 11. It can be found at:
http://doni.daps.dla.mil/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services
/05-800%20Laws%20and%20Legal%20Services/5815.3J.pdf.

                                                  7
       Petitioner believes that he has “successfully and enthusiastically done all that the system

has asked of [him] in order to be re-integrated into normal society.” Pet’r’s Reply at 4. He notes

his stable employment, absence of criminal activity, home ownership, and compliance with

registration requirements, as well as the recommendation of the USPC hearing examiner that

parole be terminated. See id. at 3-4. In addition, he states that he has “completed all required

psychological programing,” at the end of which “it was determined . . . that [he] posed no or very

low risk of committing any crime.” Id. at 3.

       The NC&PB had before it records of the court-martial which set forth the nature of the

underlying criminal offenses and the punishment imposed, petitioner’s own requests for

clemency, and post-release supervision reports covering the period from 2006 through 2014. It

also had the benefit of the parole officer’s observations of petitioner’s initial challenges and his

progress over the years.

       Of particular relevance is the young age of the victim, the escalating nature of the sex

offenses committed against her, and the familial relationship between petitioner and his step-

daughter. Based on the parties’ representations, the Court concludes that there was a rational

basis for the NC&PB’s decision to deny petitioner’s request for the early termination of parole.

                                        III. CONCLUSION

       Petitioner does not demonstrate that his “custody is in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Court therefore will deny his

petition for a writ of habeas corpus. An Order accompanies this Memorandum Opinion.




DATE: May 20, 2015                                     /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge


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