The opinion
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
January 8, 1997
WILLIE WEST, )
) Cecil W. Crowson
Plaintiff/Appellant, ) Appellate Court Clerk
) Davidson Chancery
) No. 95-1644-I
VS. )
) Appeal No.
) 01A01-9604-CH-00362
TENNESSEE BOARD OF )
PAROLES, )
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
For the Plaintiff/Appellant: For the Defendant/Appellee:
Willie E. West, Pro Se Patricia C. Kussmann
Assistant Attorney General
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves an inmate’s attempt to obtain judicial review of the
parole board’s decision to deny him parole. The Chancery Court for Davidson
County dismissed the inmate’s petition for common-law writ of certiorari because
it was not filed within the time required by Tenn. Code Ann. § 27-9-102 (1980).
The inmate asserts on this appeal that he filed his petition within the required time
after he received notice of the board’s decision to deny him parole. We affirm the
judgment because the inmate’s underlying request that the parole board review its
decision was not timely filed.
I.
Willie E. West is currently incarcerated at the Northeast Correction Center
in Mountain City. He was originally sentenced to the Department of Correction
in 1983 following convictions for larceny, receiving stolen property, and
aggravated assault. He was released on parole in 1984, but his parole was revoked
in 1985 when he committed burglary and grand larceny. He was again paroled in
1988, but this parole was later revoked in 1991 after he started a fire at a Memphis
apartment building causing $114,000 in damage.
The parole board declined to parole Mr. West in January 1993 because of
the seriousness of his offenses. It also declined to parole him in February 1994
because he was deemed a “high risk.” After a hearing officer recommended that
Mr. West be paroled in August 1994, the board continued its consideration of the
case in order to obtain an updated psychological evaluation of Mr. West’s
propensity for violence. On November 1, 1994, another hearing officer declined
to recommend Mr. West for parole because the evaluation had concluded that “it
is not possible to predict whether or not he will act out aggressively in the future.”
The hearing officer remarked on the disposition sheet that he did “not feel that Mr.
West meets [the] standards set by [the] Board at [the] last hearing.” Between
November 3 and November 8, 1994, three members of the parole board concurred
with the hearing officer’s recommendation because they believed that Mr. West
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presented a high risk of re-offending because of his prior record and prior parole
violations.
On December 9, 1994, Mr. West requested an administrative appeal from
the hearing officer’s November 1, 1994 decision on the ground that he did not
understand the meaning of the hearing officer’s comment concerning the board’s
standards. The parole hearings director and his assistant determined that Mr. West
was not entitled to an administrative appeal and on February 23, 1995 denied his
request for an appeal. The director sent Mr. West a letter informing him of the
denial of his request for an appeal on February 23, 1995; however, Mr. West now
asserts that he did not receive this notice and did not learn of the denial of his
appeal until April 1995.
Mr. West filed a petition for common-law writ of certiorari in the Chancery
Court for Davidson County on May 26, 1995. The basis for the petition was the
same as the basis for his request for an administrative appeal - that he did not
understand the meaning of the board member’s comment at his last hearing that
he had not met the “standards set by the board at the last hearing.” Mr. West
claimed that the hearing officer’s statement was vague and overbroad and,
therefore, that it violated his rights under the Due Process Clause of the
Fourteenth Amendment. The trial court determined that it did not have
jurisdiction to consider Mr. West’s petition because he had not filed it within sixty
days of the entry of the order denying him parole as required by Tenn. Code Ann.
§ 27-9-102.
II.
TIMELINESS OF THE PETITION FOR WRIT OF CERTIORARI
Tenn. Code Ann. § 27-9-102 requires that a petition for a common-law writ
of certiorari seeking judicial review of an order or decision by a lower tribunal
must be filed within sixty days from the entry of the order or judgment. This time
limitation is mandatory and jurisdictional. Thandiwe v. Traughber, 909 S.W.2d
802, 804 (Tenn. Ct. App. 1994). Accordingly, courts cannot review a lower
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tribunal’s decision using a common-law writ of certiorari if the petition for the
writ has not been timely filed.
Ambiguities in the parole board’s hearing and internal appeal procedures
have prompted repeated questions concerning the fair and proper application of
Tenn. Code Ann. § 27-9-102 in cases involving decisions denying parole. The
rule governing hearings before the board provides that
The Board is authorized by law to sit in panels in
certain cases. The panel’s recommendation is then
adopted, modified or rejected by a majority vote by the
full Board. Inmates dissatisfied with adverse final
action resulting from a panel hearing shall be granted a
de novo hearing upon written application filed with the
Board within 21 days from the Board’s final decision
resulting from a panel hearing. Inmates dissatisfied by
an adverse final action of a case heard by a hearing
officer shall be, upon proper request, granted a de novo
hearing after a decision on the case is made by the full
Board.
Tenn. Comp. R. & Regs. r. 1100-1-1-.07(3)(c) (1986). On at least three prior
occasions, this court has declined to decide whether the timely filing of an
application for appellate review tolls the running of Tenn. Code Ann. § 27-9-102's
sixty-day period for filing a petition for a common-law writ of certiorari. Sams
v. Traughber, App. No. 01A01-9603-CH-00133, 1996 WL 467684 (Tenn. Ct.
App. Aug. 14, 1996); Fite v. State, 925 S.W.2d 543 (Tenn. Ct. App. 1996);
Blevins v. Tennessee Bd. of Paroles, App. No. 01A01-9502-CH-00050, 1995 WL
276828 (Tenn. Ct. App. May 12, 1995).
We need not decide this issue here because Mr. West’s application for
appellate review of the decision to deny him parole was not timely. Tenn. Comp.
R. & Regs. r. 1100-1-1-.07(3)(c) required Mr. West to file his application within
twenty-one days of the board’s final decision. The third and final board member
concurred with the hearing officer’s recommendation on November 8, 1994, thus
Mr. West should have filed his application for appellate review by no later than
November 29, 1994. His request for an appeal hearing filed on December 9, 1994
came too late. Since it was untimely, it could not have tolled the running of the
time for filing a common-law writ of certiorari. Consequently, the trial court
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reached the correct result when it concluded that Mr. West’s petition was not filed
within the time required by Tenn. Code Ann. § 27-9-102.1
III.
THE CLARITY OF THE BOARD’S DECISION
We have examined the substance of Mr. West’s claims even though we
have concluded that his petition was not filed within the time required by Tenn.
Code Ann. § 27-9-102. In substance, he asserts that the decision to deny him
parole was unconstitutionally vague and overbroad because he does not
understand what the hearing officer meant when he remarked that he did not “feel
that Mr. West meets the standards set by [the] Board at [the] last hearing.” This
claim falls beyond the proper scope of a common-law writ of certiorari.
Common-law writs of certiorari cannot be used to seek judicial review of
the intrinsic correctness of a lower tribunal’s decision. State ex rel. McMorrow
v. Hunt, 137 Tenn. 243, 250-51, 192 S.W. 931, 933 (1917); Flowers v. Traughber,
910 S.W.2d 468, 470 (Tenn. Crim. App. 1995). They empower courts to
determine whether the lower tribunal exceeded its jurisdiction or acted illegally,
fraudulently, or arbitrarily. If the tribunal conducted itself consistently with the
state and federal constitutions and with the applicable legal requirements, then its
decision will not be subject to judicial review. Powell v. Parole Eligibility Review
Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994).
The hearing officer’s comments about the parole board’s standards must be
considered in the context of the entire proceeding and the board’s own reasons for
declining to parole Mr. West. Mr. West’s prior violent conduct while on parole
caused the board concern about his conduct should he be paroled again. The
1
We need not consider the application of Jennings v. Traughber, App. No. 01A01-9509-
CH-00390, 1996 WL 93763 (Tenn. Ct. App. Mar. 6, 1996) to the facts of this case. Determining
when Mr. West was notified of the denial of his request for an administrative hearing is
unnecessary since we have already decided that his request was filed too late. Were we to
confront this factual question directly, we would conclude that Mr. West is bound by the
concession in his petition that he “received the disposition of his appeal wherein the appeal was
summarily denied” some time “on or around February 21, 1995.” His later attempt to retract this
concession on the ground that it was “inadvertent” would have been to no avail.
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purpose of requesting an updated psychological evaluation was to provide some
assurance that this type of conduct would not be repeated. The equivocal results
of the evaluation did not provide this assurance, and thus the hearing officer
commented that Mr. West did not meet the board’s standards relating to violent
conduct. The board itself repeated this conclusion when it declined to parole Mr.
West because his past offenses and parole violations pointed to a significant risk
that he would re-offend if placed on parole.
The hearing officer’s and the parole board’s reasons for declining to parole
Mr. West are not so vague that a person of common intelligence could not
understand them. Accordingly, the manner in which the board declined to grant
Mr. West parole is not unconstitutional, and the correctness of the board’s
decision is not subject to judicial review through a common-law writ of certiorari.
IV.
We affirm the denial of the petition for common-law writ of certiorari and
remand the case to the trial court for whatever other proceedings may be required.
We tax the costs of this appeal to Willie E. West for which execution, if necessary,
may issue.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
________________________________
HENRY F. TODD, P.J., M.S.
________________________________
SAMUEL L. LEWIS, JUDGE
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