United States District Court, W.D. Kentucky, Louisville Division
ROY C. NEAL Petitioner
LELIA A. VANHOOSE, Chair Kentucky Parole Board, LARRY R. BROCK, Member, MICHAEL A. BOLCAS, Member, GEORGE CARSON, Member, MELISSA CHANDLER, Member, CAROLINE MUDD, Member, NEEKA PARKS, Member, ROBERT POWERS, Member, AMANDA SPEARS, Member, Kentucky Parole Board, ANDREW GRAHAM BESHEAR, Attorney General of Kentucky, Respondents
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
Roy C. Neal (“Neal”), by counsel, filed a
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241 seeking relief from an order of restitution as a
condition of his parole relating to theft by deception
charges he pleaded guilty to in 2001. [DE 1, Petition]. The
Court referred the matter to Magistrate Judge Colin H.
Lindsay for rulings on all non-dispositive motions; for
appropriate hearings, if necessary; and for findings of fact,
conclusions of law, and recommendations on any dispositive
matter. [DE 5]. Respondent Attorney General of Kentucky,
Andrew Beshear (“Beshear”), moved to dismiss. [DE
10]. Respondents Michael A. Bolcas, Larry R. Brock, George
Carson, Melissa Chandler, Caroline Mudd, Neeka Parks, Robert
Powers, Amanda Spears, and Lelia A. Vanhoose (collectively,
the “Kentucky Parole Board”) also moved to
dismiss. [DE 11]. Neal did not file responses to the motions.
Judge Lindsay issued a Report and Recommendation
(“R&R”) that the Court grant Beshear's
Motion to Dismiss and deny the Kentucky Parole Board's
Motion to Dismiss [DE 12]. The Kentucky Parole Board filed
objections. [DE 13]. Beshear responded to the Kentucky Parole
Board's objections. [DE 17]. For the reasons below, the
Court OVERRULES the Kentucky Parole Board's objections
and ADOPTS the R&R.
R&R accurately sets forth the key allegations of the
Petition. [See DE 12 at 44-46]. Below, the Court mentions the
key allegations to frame its discussion and analysis of the
Kentucky Parole Board's objections.
2001, Neal entered a plea of guilty to several counts of
theft by deception and one count of theft by failure to make
required disposition of property. [DE 1, Pet. at 2.] The
court sentenced Neal to ten years imprisonment and entered an
order of restitution for $91, 882 plus interest.
[Id. at 3].
2005, Neal was paroled and moved to Georgia with permission
from the Kentucky Parole Board to be supervised there under
the Interstate Compact for Adult Offender Supervision.
[Id. at 4]. The conditions of his parole did not
include restitution. [Id. at 3.] ¶ 2008, the
Kentucky Parole Board notified Neal by letter that
restitution was added to his conditions of release.
[Id. at 4]. In 2013, Neal was arrested for violating
parole by failing to make restitution. [Id.].
Neal's parole was revoked and he served an additional
term of imprisonment. [Id. at 5-6]. Neal alleges he
never receive the 2008 letter from the Kentucky Parole Board.
[Id. at 4] Neal remains on parole in Georgia, paying
restitution. [Id. at 6].
Petition, Neal seeks the following relief: release from the
custody of the Kentucky Parole Board and the Commonwealth of
Kentucky; a declaration that KRS 439.563(5) is
unconstitutional as it subjects parolees such as Neal to the
risk of confinement, with no defined release date, after the
completion of their respective sentences; and an order to the
Commonwealth of Kentucky directing it to set aside and vacate
Neal's obligation to pay restitution as a condition of
his parole. [DE 1, Pet. at 1-2]. Neal alleged that under
Kentucky law, he will be on parole until he pays his
restitution in full “even if this would lengthen the
period of supervision beyond the statutory limit of parole
supervision or the statutory limit for serving out the
sentence imposed.” [Id. at 7-8.] Neal alleges
that this practice denies him equal protection and violates
his Fifth, Eighth, and Fourteenth Amendment rights.
[Id. at 10-11.] Neal also claims adding restitution
as a condition of his parole without providing proper notice
and a hearing violated his due process rights. [Id.
district court may refer a motion to a magistrate judge to
prepare a report and recommendation. 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “A magistrate
judge must promptly conduct the required proceedings . . .
[and] enter a recommended disposition, including, if
appropriate, proposed findings of fact.” Fed.R.Civ.P.
72(b)(1). This Court must “determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). The Court need not review under a de
novo or any other standard those aspects of the report and
recommendation to which no specific objection is made and may
adopt the findings and rulings of the magistrate judge to
which no specific objection is filed Thomas v. Arn,
474 U.S. 140, 150, 155 (1985).
specific objection “explain[s] and cite[s] specific
portions of the report which [counsel] deem[s]
problematic.” Robert v. Tesson, 507 F.3d 981,
994 (6th Cir. 2007) (alterations in original) (citation
omitted). A general objection that fails to identify specific
factual or legal issues from the R&R is not permitted as
it duplicates the magistrate judge's efforts and wastes
judicial resources. Howard v. Sec'y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). After
reviewing the evidence, the Court is free to accept, reject,
or modify the magistrate judge's proposed findings or
recommendations. 28 U.S.C. § 636(b)(1)(C).
R&R recommends that the Court grant Beshear's motion
to dismiss him as a party because the proper respondent in a
habeas action is the entity or person exercising legal
control over the challenged custody. [DE 12 at 47]. The
Kentucky Parole Board is Neal's custodian, not the
attorney general. [Id.] Magistrate Judge Lindsay
further recommends the Kentucky Parole Board's motion to
dismiss be denied, finding the authorities cited in support
do not compel dismissal of Neal's Petition. [Id.
at 49]. The Kentucky Parole Board objected to both
recommendations. [DE 17].
Dismissal of the Attorney General as a Party
Kentucky Parole Board objects to dismissal of the Attorney
General as a party, stating “since this action
challenges the constitutionality of KRS 439.563, the Attorney
General is a necessary party to this action, pursuant to KRS
418.075.” KRS ...