The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
MELVIN SAWYER, )
) January 28, 1998
Plaintiff/Appellant, ) Cecil W. Crowson
) Appellate Court Clerk
)
VS. ) Davidson Chancery
) No. 95-3228-III
)
JIM GRISHAM, DAWN CHASE, )
CHARLES TRAUGHBER, ) Appeal No.
ROSE HILL, TENNESSEE BOARD ) 01A01-9604-CH-00176
OF PAROLES, TENNESSEE )
DEPARTMENT OF CORRECTION, )
)
Defendants/Appellees. )
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
For Plaintiff/Appellant: For Defendants/Appellees:
Melvin Sawyer, Pro Se John Knox Walkup
Attorney General and Reporter
Patricia C. Kussmann
Assistant Attorney General
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves a state prisoner’s pro se challenge to the decision of the
Tennessee Board of Paroles to deny him parole. The petitioner filed a petition for
writ of certiorari in the Chancery Court for Davidson County after filing unsuccessful
suits in the United States District Court and the Circuit Court for Hickman County.
The chancery court dismissed the petition because it had not been timely filed in
accordance with Tenn. Code Ann. § 27-9-102 (1980). We affirm.
I.
In 1985, Melvin Darrell Sawyer was sentenced to four years in prison after
being convicted of assault with intent to commit murder, aggravated assault, and
shooting a missile into a dwelling. The Court of Criminal Appeals later set aside Mr.
Sawyer’s aggravated assault conviction and reduced his sentence to two years. See
State v. Sawyer, App. No. 87-148-III, 1988 WL 99730, at *1 (Tenn. Crim. App. Sept.
28, 1988) (No Tenn. R. App. P. 11 application filed). In 1986, Mr. Sawyer was also
convicted of two counts of aggravated rape of his ten-year-old step-grandson and
received two consecutive twenty-year sentences for these crimes. The Court of
Criminal Appeals affirmed these convictions. See State v. Sawyer, App. No. 86-269-
III, 1988 WL 13989, at *4 (Tenn. Crim. App. Feb. 24, 1988), perm. app. denied
(Tenn., May 23, 1988). Mr. Sawyer is currently incarcerated at the Turney Center
Industrial Prison and Farm in Hickman County.
Mr. Sawyer became eligible for parole in March 1994. Following a hearing on
March 14, 1994, the hearing officer recommended that the Board of Paroles decline
to parole Mr. Sawyer and to set another parole hearing for March 1999. The hearing
officer based his recommendations on the seriousness of Mr. Sawyer’s offenses and
the high risk that he would re-offend.1 On April 8, 1994, Mr. Sawyer received notice
that the Board had adopted the hearing officer’s recommendations, and ten days later,
1
When it affirmed Mr. Sawyer’s aggravated rape convictions in 1988, the Court of Criminal
Appeals specifically noted that Mr. Sawyer was “a recidivist whose prior criminal record certainly
categorizes him as a multiple offender not likely to be rehabilitated and one who should be
incarcerated under consecutive sentences for the protection of the public.” State v. Sawyer, 1988 WL
13989, at *4.
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he requested the Board reconsider his request for parole. The Board notified Mr.
Sawyer on August 1, 1994 that it had denied his request for reconsideration because
his supporting materials did not contain significant new information that had not been
available at his original hearing and because there was no basis for concluding that
his hearing had been improperly conducted. Mr. Sawyer received the notice of the
Board’s action on August 11, 1994.
Mr. Sawyer sought judicial review of the Board’s decision. Rather than filing
a common-law writ of certiorari in the Chancery Court for Davidson County, see
Thandiwe v. Traughber, 909 S.W.2d 802, 803 (Tenn. Ct. App. 1994), Mr. Sawyer
first filed a civil rights action in the United States District Court for the Middle
District of Tennessee. The district court dismissed this case as frivolous on
November 17, 1994 but stated that the dismissal would not prejudice Mr. Sawyer’s
right to seek federal habeas corpus relief after exhausting his state remedies. See
Sawyer v. Traughber, No. 3:94-1003 (M.D. Tenn. Nov. 17, 1994).
Almost ten months later, Mr. Sawyer filed a petition for habeas corpus in the
Circuit Court for Hickman County alleging that his parole hearing had been defective
and that he had been wrongfully denied consideration for parole. On October 4,
1995, the circuit court entered an order dismissing Mr. Sawyer’s petition. The circuit
court also declined to give Mr. Sawyer an additional sixty days to file his petition for
writ of certiorari2 because he had “rested on his rights far too long to warrant a time
extension now.” Sawyer v. Mills, No. 95-5189C (Hickman Cir. Oct. 4, 1995).
Mr. Sawyer finally filed a petition for common-law writ of certiorari in the
Chancery Court for Davidson County on October 18, 1995 - approximately fourteen
months after being notified of the Board’s denial of his request for reconsideration
of the decision not to parole him. The chancery court denied this petition on
November 3, 1995 on the ground that it was not timely filed. Mr. Sawyer now
appeals this decision.
2
The Tennessee Supreme Court has given an inmate sixty additional days within which to
file a petition for common-law writ of certiorari because the delay in dismissing the prisoner’s
habeas corpus petition had prevented him from filing a timely petition for common-law writ of
certiorari. See Norton v. Everhart, 895 S.W.2d 317, 322 (Tenn. 1995).
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II.
Tenn. Code Ann. § 27-9-102 (1980) requires that petitions for a common-law
writ of certiorari be filed within sixty days after the entry of the order or judgment
complained of. This time limit applies to petitions seeking judicial review of
decisions of the Board of Paroles. See Thandiwe v. Traughber, 909 S.W.2d at 803-
04. Thus, even prisoners representing themselves pro se must adhere to this
important procedural requirement.
Mr. Sawyer advances two arguments why he should be excused from the
operation of Tenn. Code Ann. § 27-9-102. First , he asserts that Tenn. Code Ann. §
28-1-115 (Supp. 1997) permitted him to file his petition within one year of the
dismissal of his civil rights action in federal court. Second, he asserts that he should
have been accorded sixty days after the circuit court’s dismissal of his habeas corpus
petition to filed his certiorari petition under the Norton v. Everhart holding. We
disagree on both counts.
Mr. Sawyer cannot take advantage of Tenn. Code Ann. § 28-1-115 because the
United States District Court did not dismiss his civil rights complaint for lack of
jurisdiction. See A’la v. Tennessee Dep’t of Correction, 914 S.W.2d 914, 916 (Tenn.
Ct. App. 1995). Neither can Mr. Sawyer benefit from Norton v. Everhart because the
habeas corpus petition he filed in Hickman County was not filed within sixty days
after the date on which the Board denied his request for reconsideration of the denial
of his parole. See Flowers v. Traughber, 910 S.W.2d 468, 469-70 (Tenn. Crim. App.
1995).
III.
We affirm the dismissal of Mr. Sawyer’s petition for common-law writ of
certiorari and remand the case for whatever further proceedings may be required. We
also tax the costs of this appeal to Melvin D. Sawyer for which execution, if
necessary, may issue.
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______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
__________________________________
SAMUEL L. LEWIS, JUDGE
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