The opinion
CARL E. JORDAN, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9607-CH-00347
VS. )
) Davidson Chancery
) No. 95-3201-III
TENNESSEE BOARD OF PAROLES, )
et al., )
Respondents/Appellees.
)
) FILED
January 15 1997
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
CARL E. JORDAN
#91050
Riverbend Maximum Security Institution
7475 Cockrill Bend Industrial Road
Nashville, Tennessee 37209
Pro Se/Petitioner/Appellant
CHARLES W. BURSON
Attorney General and Reporter
PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Nashville, Tennessee 37243
Attorney for Respondents/Appellees
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
An inmate in the custody of the Department of Correction filed a Petition
for Writ of Certiorari to challenge the Parole Board’s refusal to grant him parole. The
Chancery Court dismissed the Petition for failure to comply with the time limitations
for filing. We affirm the dismissal on the alternate ground of failure to state a claim
upon which relief can be granted.
I.
On January 23, 1981, Carl E. Jordan pled guilty to aggravated rape,
armed robbery and second degree murder, and was sentenced to three concurrent
forty year sentences. On May 2, 1986, the Court of Criminal Appeals vacated the
guilty plea, because it found that the trial court had failed to fully comply with the
procedures required by Tenn.R.Crim P. 11(c) to determine whether a guilty plea is a
voluntary and knowing one.
On September 23, 1986, Mr. Jordan again pled guilty to the same
crimes, and was sentenced to three concurrent sentences of thirty-five years. Mr.
Jordan became eligible for parole consideration, and a hearing was conducted on
April 11, 1995. On May 2, 1995, parole was declined. The Board cited high risk and
the seriousness of his offense as its reasons for decline.
Mr. Jordan followed the procedures established by the Parole Board to
apply for appellate review of its decisions. His request for an administrative appeal
was denied on August 24, 1995, and he learned of the decision on September 1,
1995. On October 17, 1995, Mr. Jordan filed his Petition for Writ of Certiorari in the
Chancery Court of Davidson County. The state filed a Motion to Dismiss the Petition
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on the grounds that it was not filed within the jurisdictional time limit set out in Tenn.
Code Ann. § 27-9-102, and that the nature of the review sought was outside the
scope of the common law writ of certiorari. The court dismissed the petition on the
jurisdictional ground. This appeal followed.
II.
Tenn. Code Ann. § 27-9-102 requires that a Petition for Writ of Certiorari
be filed within sixty days of the entry of the order or judgment complained of. Failure
to file within this statutory time limit deprives the trial court of jurisdiction. Fairhaven
Corp. v. Tennessee Health Facilities Commission, 566 S.W.2d 885, 887 (Tenn. App.
1976). There has been some uncertainty as to how the time limit is to be applied in
cases involving the Tennessee Parole Board. The question that usually arises is
whether the sixty day limit begins at the time of the Parole Board’s initial decision, or
if it is tolled until administrative appellate review is exhausted. See for example, Fite
v. State of Tennessee, Appeal No. 01-A-01-9508-CH-00362 (Filed Nashville, February
28, 1996), Sams v. Traughber, Appeal No. 01-A-01-9603-CH-00133 (Filed Nashville,
August 14, 1996).
On March 6, 1996, the Western Section of this court issued an opinion
in a parole revocation action that held that the time limit cannot begin to run until the
decision of the Parole Board becomes final. Jennings v. Traughber, Appeal No.
01A01-9509-CH-00390. If a prisoner appeals a refusal to grant him parole, the
Board’s decision does not become final until the Board renders a decision on that
appeal. Tenn. Code Ann. § 40-28-105(d). Thus, if considered under the rule
announced in Jennings, the appellant’s petition would be considered timely because
it was filed less than sixty days after the Board rejected his appeal.
-3-
The State argues however, that the court’s ruling in Jennings v.
Traughber is inapplicable to this case, because it was issued after the Chancery Court
dismissed Mr. Jordan’s petition. This is certainly a valid argument, and might well be
conclusive if the Jennings court had reversed a well-established rule. However
because of the uncertainty of the law prior to the Jennings opinion, we decline to
uphold the Chancery Court’s dismissal on jurisdictional grounds, and instead review
the sufficiency of Mr. Jordan’s petition under the requirements of the writ.
III.
As this court has stated many times, the scope of a Writ of Certiorari is
quite limited:
“It covers only an inquiry into whether the Board has
exceeded its jurisdiction or is acting illegally, fraudulently or
arbitrarily. Conclusory terms such as ‘arbitrary and
capricious’ will not entitle a petitioner to the writ. At the risk
of oversimplification, one may say that it is not the
correctness of the decision that is subject to judicial review,
but the manner in which the decision is reached.”
Powell v. Parole Eligibility Review Board, 878 S.W.2d 871, 873 (Tenn. App. 1994).
Mr. Jordan’s Petition states in several places that the Board’s actions in
his case were unconstitutional and in violation of law, but as the quoted passage
above indicates, such a statement does not entitle him to the writ unless it can be
supported by a claim of some substance.
Mr. Jordan first argues that he has a constitutionally protected liberty
interest in parole. The United States Supreme Court has stated that a prisoner has
no constitutional right to be released prior the expiration of a valid sentence, but that
a state’s parole statutes law may create a protected liberty interest. Greenholtz v.
Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100
60 L.Ed 688 (1979).
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Mr. Jordan relies upon the case of Mayes v. Trammel, 751 F.2d 175 (6th
Cir. 1984) wherein the Federal appeals court found that the Tennessee parole
scheme as it then existed, created a liberty entitlement protected by due process, by
virtue of the following language, found in Rule 1100-1-1-.06 of the Rules of
Tennessee Board of Paroles:
“The Board operates under the presumption that each resident who
is eligible for parole is a worthy candidate and thus the Board
presumes that he will be released on parole when he is first eligible.
Before granting or denying parole, the Board shall apply the
following factors to each eligible resident to assist it in determining
whether such resident will live and remain at liberty withoutviolating
the law or the conditions of his parole.”
The Parole Board subsequently amended its rules to eliminate the first
sentence of the above paragraph, and the appeals court recognized that the amended
rule eliminated the constitutionally-protected liberty interest. Wright v. Trammel, 810
F.2d 589, 591 (6th Cir. 1987). See also Wells v. Board of Paroles, 909 S.W.2d 826
(Tenn. App. 1995).
The appellant argues that since he committed his crimes prior to the
decision in Wright v. Trammel, it is a violation of the protections against ex post facto
laws to deprive him of the benefits of the prior rule. We note at the outset that Wright
v. Trammel did not say that the amended rule could only be applied to crimes
committed after it was put into effect, but that it applied to parole hearings held after
its effective date of April 10, 1985.
In regard to the ex post facto argument, the appellant mentions two
cases where the courts have said that changes in rules relating to early release were
violations of ex post facto prohibitions, but neither case is on point with the one before
us. In Akins v. Snow, 922 F.2d 1558 (Eleventh Circuit 1991), the federal appeals
court ruled that the Georgia Board of Paroles could not reduce the frequency of parole
hearings from annually to once every eight years for prisoners who were sentenced
when the earlier rule was in effect. In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960,
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67 L.Ed.2d 17 (1981) the Supreme Court prohibited the Florida Department of
Corrections from reducing the amount of good time and honor time that inmates could
accumulate each month below the levels that were in place at the time of sentencing.
However in a later case involving frequency of parole hearings, the
Supreme Court held that not every change in parole rules to the possible detriment
of previously convicted offenders can be considered an ex post facto violation. The
court stated that the question was the degree of risk that the change would increase
the measure of punishment retroactively. If it can be considered highly speculative
that the petitioner would be released earlier because of the application of the prior rule
(as it does in the present case), then the use of the later rule would not violate the ex
post facto prohibition. See California Dept. Of Corrections v. Morales, 514 U.S. __,
115 S.Ct, 1597, 131 L.Ed 2d 588 (1995). See also Kaylor v. Bradley, 912 S.W.2d 728
(Tenn. App. 1995).
IV.
Mr. Jordan also contends that it was unlawful to deny him parole on the
ground of the seriousness of his offense, and that it was likewise unlawful not to
supply him with a more detailed statement of the Board’s reasons for its actions, and
of the facts it relied upon in reaching its decision. We have recently dealt with both of
these issues in some detail, so we will only briefly respond to them here.
One of the factors the Board is statutorily obligated to take into account
in parole decisions is the seriousness of the crime(s) for which the prisoner was
sentenced. Tenn. Code Ann. § 40-35-503 states that:
(b) Release on parole is a privilege and not a right, and
no inmate convicted shall be granted parole if the board finds
that:
(1) . . .
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(2) The release from custody at the time would
depreciate the seriousness of the crime of which the
defendant stands convicted or promote disrespect for the law.
Although some federal courts have criticized the use of the seriousness
of the crime as a factor in parole consideration, the Tennessee legislature is
persuaded otherwise, and we have recently upheld the right of the legislature to
require the Parole Board to consider that factor. See South v. Board of Paroles,
Appeal No. 01A-01-9609-CH-00393 (Filed Nashville, December 11, 1996).
Further, although some jurisdictions require their Parole Boards to
furnish prisoners with a detailed statement of the reasons for declining parole, such
is not the case in Tennessee. See Mosley v. Board of Paroles, Appeal No. 01-A-01-
9604-CH-00162 (Filed Nashville, November 1, 1995).
V.
Mr. Jordan’s final argument is that the Parole Board erred in applying the
wrong standard for reviewing his eligibility for release as a sexual offender. Although
sex offenders were treated the same as all other offenders with regard to parole
eligibility prior to 1957, our legislature has since passed a number of statutes for the
purpose of preventing the release of sex offenders without some sort of mental health
evaluation to determine whether they are at risk for offending again. See Tenn. Code
Ann. §§ 40-28-116(a)(2), 40-35-503(4)(c) and (d).
According to Attorney General Opinion 90-10 (January 29, 1990) the
variations in these statutes and the differences in the dates they were enacted require
the application of slightly different standards of evaluation before a sex offender can
be released, depending on the date of his crimes.
-7-
Mr. Jordan discusses in detail the various statutes, and the categories
they have created among sexual offenders, and argues that the wrong standard was
applied to him, because of a comment written by the hearing officers who conducted
his parole hearing. The comment, which is found in a document entitled Notice of
Board Action, states “Psychological does not track language,” and was apparently
meant to provide another reason for declining parole. Putting aside for a moment the
question of what that language really means, and how it relates to the categories
discussed by Mr. Jordan, we note that the Board modified the recommendations of
the hearing officers before signing off on them, and eliminated the quoted language.
According to the final notice of the Board’s action, the reasons for declining parole
to Mr. Jordan were high risk and the seriousness of his offense.
Since only one of the three crimes of which Mr. Jordan was convicted
can be considered a sexual offense, and the other crimes were murder and armed
robbery, we must conclude from this record that even if the hearing officers erred in
applying the wrong sort of evaluation standard for his rape conviction (and it is not at
all clear that they did) it must be considered harmless error, in light of subsequent
Board action and the seriousness of Mr. Jordan’s other crimes.
VI.
We affirm the dismissal of Mr. Jordan’s petition, on the ground of failure
to state a claim upon which relief can be granted. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
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_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
CARL E. JORDAN, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9607-CH-00347
VS. )
) Davidson Chancery
) No. 95-3201-III
TENNESSEE BOARD OF PAROLES, )
et al., ) Affirmed
) and
Respondents/Appellees. ) Remanded
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Chancery Court of Davidson County, and briefs of the parties; upon consideration
whereof, this Court is of the opinion that in the decree of the Chancellor there is no
reversible error.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and decreed by this Court that the decree is affirmed. The cause is
remanded to the Chancery Court of Davidson County for the enforcement of the
decree and for the collection of the costs accrued below.
Costs of this appeal are taxed against Carl E. Jordan, for which
execution may issue if necessary.
ENTER _______________________.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM C. KOCH, JR., JUDGE