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Neal v. Vanhoose

United States District Court, W.D. Kentucky, Louisville Division

August 8, 2019

ROY C. NEAL Petitioner
v.
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

         Petitioner 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.

         BACKGROUND

         The 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.

         In 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].

         In 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].

         In his 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. at 11.]

         STANDARD OF REVIEW

         A 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).

         A 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).

         DISCUSSION

         The 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].

         A. Dismissal of the Attorney General as a Party

         The 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.”[1] KRS ...


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