Knighten v. US Parole Commission, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
November 29, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41166
Summary Calendar
LESTER KNIGHTEN,
Petitioner-Appellant,
versus
UNITED STATES PAROLE COMMISSION; MARVIN MORRISON,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-1171
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Before Jolly, Dennis, and Clement, Circuit Judges.
PER CURIAM:*
Lester Knighten, federal prisoner # 15135-045, appeals the
district court’s denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Knighten’s petition
challenged the United States Parole Commission’s (Commission)
decision denying him parole. Knighten contends that the
Commission improperly considered false information, including a
rape charge for which he was acquitted at trial, as a reason to
justify a departure from the guidelines. Knighten also contends
that the Commission “double counted” by using the same factors
establishing his severity rating to depart from the guideline

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No. 05-41166
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range. Knighten further contends that he was denied due process
because the National Appeals Board failed to act on his case
within the 60-day time limit mandated under 28 C.F.R. § 2.26(c).
Lastly, Knighten argues that the district court erred in not
considering evidence he submitted in support of his § 2241
petition and for not conducting an evidentiary hearing on his
claims.
There is no evidence in the record that the Commission
incorrectly relied on the fact of two rape convictions to justify
a departure from the guidelines. Knighten has failed to show
that the Commission lacked good cause to depart from the
guidelines or that “double counting” occurred. See Maddox v.
United States Parole Comm’n, 821 F.2d 997, 999-1001 (5th Cir.
1987). Additionally, Knighten has failed to show that he was
prejudiced by the National Appeals Board’s delay in considering
his appeal within the mandated time limit set forth in § 2.26(c).
See Page v. United States Parole Comm’n, 651 F.2d 1083, 1087 (5th
Cir. 1981). The record reflects that the district court did
consider the evidence submitted by Knighten in support of his
§ 2241 petition and that there was no error on the part of the
district court in not conducting an evidentiary hearing. See
Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989).
Accordingly, the judgment of the district court is AFFIRMED.
Knighten’s motion to expedite his appeal is DENIED.

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