HENDERSON (ALDEAN) VS. KENTUCKY STATE PAROLE BOARDAnnotate this Case
RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ALDEAN HENDERSON, JR.
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 06-CI-01120
KENTUCKY STATE PAROLE
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BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.
ACREE, JUDGE: Aldean Henderson, pro se, brings this appeal from an order of
the Franklin Circuit Court dismissing his petition for writ of mandamus. We
Henderson was convicted in July 1980 of first-degree robbery, firstdegree burglary, first-degree sexual abuse, and being a first-degree persistent
felony offender. After a bifurcated jury trial, the Appellant was sentenced, on the
jury's recommendation, to concurrent terms of life and twenty (20) years.
Henderson was ordered by the Kentucky Parole Board to serve out his
life sentence. Citing violations of numerous constitutionally protected rights,
Henderson petitioned the Franklin Circuit Court for a writ of mandamus to compel
the Board to release him on parole or grant him a new parole hearing. The circuit
court granted the Board’s motion to dismiss and denied the petition. This appeal
In May 1990, Henderson came before the Board for parole
consideration. Parole was denied and the Board deferred further consideration for
sixty months. In May of 1995, Henderson again came before the Board. Parole
was again denied and the Board ordered Henderson to serve out the remainder of
his sentence. The decision was based upon several factors, including the
seriousness of the crimes, the violence and firearm involved in the commission of
the offense, Henderson’s juvenile record, his misdemeanor record, fourteen prior
felony convictions, four incarcerations, his history of violent behavior, and three
prior parole violations.
In October 2000, Henderson requested that the Board reconsider its
serve-out decision. The Board denied his request. Again in March 2005,
Henderson sought reconsideration. The Board responded, stating it had reviewed
his file and found no basis for reconsideration.
In late April 2005, Henderson sent letters to the Board and Lieutenant
Governor Steve Pence requesting reconsideration of the serve-out decision. After
the Board responded to both letters with repeated denials, Henderson sent one
more request for reconsideration, which was denied. Henderson’s subsequent
petition to the Franklin Circuit Court was denied and his case dismissed. This
Henderson’s brief consists of two arguments: first, that the Board
violated the prohibition against the use of ex post facto laws; and second, that his
due process rights were violated. We will discuss each argument individually.
When a party moves to dismiss a claim under Kentucky Rules of Civil
Procedure (CR) 12.02(f), “[t]he [circuit] court should not grant the motion unless it
appears the pleading party would not be entitled to relief under any set of facts
which could be proved in support of his claim.” Pari-Mutuel Clerks' Union v.
Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). “In reaching its decision,
the circuit court is not required to make any factual determination; rather, the
question is purely a matter of law. Stated another way, the court must ask if the
facts alleged in the complaint can be proved, would the plaintiff be entitled to
relief?” Bagby v. Koch, 98 S.W.3d 521, 522 (Ky.App. 2002).
The granting of a writ of mandamus “is a rare and extraordinary
measure with a difficult standard to meet.” Foster v. Overstreet, 905 S.W.2d 504,
505 (Ky. 1995). A party seeking a writ must prove that he “‘has no other adequate
remedy and that great and irreparable injury will result to [him].’” Id., quoting
Glasson v. Tucker, 477 S.W.2d 168, 169 (Ky. 1972). The purpose of a writ “is to
compel an official to perform duties of that official where an element of discretion
does not occur.” County of Harlan v. Appalachian Regional Healthcare, 85
S.W.3d 607, 612 (Ky. 2002). Mandamus should always be “cautiously employed.
It is not a common means of redress and is certainly not a substitute for appeal.”
Id. at 613. With these stringent standards in mind, we address Henderson's
Henderson's first argument is that the application of the serve-out
provision in 501 Kentucky Administrative Regulations (KAR) 1:030 violated the
prohibition against ex post facto laws. We disagree.
In 1989, the regulations governing parole eligibility, 501 KAR 1:011,
were revised. The new version is found at 501 KAR 1:030. Because Henderson
committed his crimes in 1979, he argues the pre-amendment version should be
applied to his parole hearings. Specifically, Henderson argues that application of
the pre-amendment version of the regulation precludes the Board from requiring
him to serve out his sentence.
501 KAR 1:030(3)(f) specifically states that the Board “reserves the
right to order a serve-out of any sentence.” Henderson alleges this is an ex post
facto law because the Board could not have ordered a serve out under the
regulation as it existed in the year he was convicted which did not specifically
“[A]ny statute which punishes as a crime an act previously
committed, which was innocent when done; which makes more burdensome the
punishment for a crime, after its commission, or which deprives one charged with
crime of any defense available according to law at the time when the act was
committed, is prohibited as ex post facto.” Collins v. Youngblood, 497 U.S. 37, 42,
110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990), citing Beazell v. Ohio, 269 U.S. 167,
169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925).
Henderson is serving a life sentence. He has no guarantee of parole.
Parole is a privilege in Kentucky and its denial does not carry any constitutional
implications. Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). For a
prisoner in Kentucky to have an interest in parole that is protected under the
Constitution, he must have a liberty interest in parole. The parole statute does not
create a liberty interest in parole since it does not create an entitlement to parole.
Belcher v. Kentucky Parole Bd., 917 S.W.2d 584 (Ky.App. 1996). Henderson has
no legitimate expectation of parole release, and the Board's ordering him to serveout his sentence does not increase his punishment.
Furthermore, the prior regulation in existence when appellant
committed his offense, effectively gave the Board the power to order a serve-out.
The only difference was that the more recent regulation said so specifically. There
was no ex post facto violation.
Second, Henderson argues that his due process rights were violated by
the Board’s actions. Specifically he takes issue with the Board’s reliance on the
violent nature of his past criminal offenses and conduct when ordering him to
serve-out his sentence, the Board’s failure to issue findings of whether he had
rehabilitated himself, and finally, its failure to hold a hearing with him present on
his request for reconsideration.
Henderson does have a legitimate due process interest in a decision
rendered in conformity with established procedures and policies, and based upon
consideration of relevant criteria. Belcher, 917 S.W.2d at 587. However,
Henderson has not proven that the Board’s serve-out order was not proper.
This Court, in Belcher, determined all that was required in the parole
review process when parole is denied is that the prisoner have the opportunity to be
heard and that he be advised in general terms of the reason for the decision of the
Board. Belcher, 917 S.W.2d 584. The judicial standard of review of decisions of
the Parole Board is limited to an examination of compliance with the terms of
Kentucky Revised Statutes (KRS) 439.250 to 439.560.
In this case, Henderson was advised of the reasons for the decision of
the Board and had the opportunity to be heard before he was ordered to serve-out
his sentence. The Board is charged with the task of protecting the public, and an
inmate will not be released if the Board determines that the inmate still poses a risk
to society. It is proper for the Board to consider an inmate’s history including prior
criminal acts, parole violations, and violent behavior when determining parole
eligibility. Due process does “not require the Board to provide a detailed summary
or specify the particular evidence on which it rests the discretionary determination
that the inmate is not ready for conditional release.” Belcher, 917 S.W.2d at 588.
Contrary to his contentions, Henderson was not entitled to a new
hearing upon his request for reconsideration. A review of parole eligibility only
requires a hearing on the record, with the inmate's presence only necessary if a
Board member wishes to hear additional testimony. 501 KAR 1:030 § 4(5) (“If the
case is set for review, it shall be conducted from the record of the first hearing.
The appearance of the inmate shall not be necessary. If a board member wishes to
have additional testimony, an appearance hearing may be conducted.”).
Henderson’s due process rights have been satisfied.
For the foregoing reasons, the judgment of the Franklin Circuit is
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Aldean Henderson, Jr., pro se
John C. Cummings
Justice and Public Safety Cabinet