William Cooper v. Board of Parole

11/26/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 1, 2019

WILLIAM COOPER v. BOARD OF PAROLE

Appeal from the Chancery Court for Davidson County

No. 17-0906-IV Russell T. Perkins, Chancellor

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No. M2018-01392-COA-R3-CV

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This is an appeal from the judgment of the chancery court denying an inmate the relief

requested in his petition for writ of certiorari. The inmate is serving two concurrent life

sentences, with the possibility of parole, for offenses of first degree murder. The

Tennessee Board of Parole declined to grant parole to the inmate, citing seriousness of

the offense. The chancery court concluded that the Board did not act arbitrarily,

fraudulently, illegally, or in excess of its jurisdiction, in denying the inmate parole. For

the following reasons, we affirm the trial court’s order of dismissal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which RICHARD H.

DINKINS, and JOHN W. MCCLARTY, JJ., joined.

William Cooper, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,

Solicitor General; and Pamela S. Lorch, Senior Assistant Attorney General, for the

appellee, Tennessee Board of Parole.

MEMORANDUM OPINION1

1

Rule 10 of the Rules of the Court of Appeals provides as follows:

This Court, with the concurrence of all judges participating in the case, may affirm,

reverse or modify the actions of the trial court by memorandum opinion when a formal

opinion would have no precedential value. When a case is decided by memorandum

opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and

shall not be cited or relied on for any reason in any unrelated case.

I. FACTS & PROCEDURAL HISTORY

William Cooper (“Cooper”) is an inmate currently incarcerated at Northeast

Correctional Complex in Mountain City, Tennessee. In 1982, Cooper committed two

offenses of first degree murder. He subsequently pled guilty to both offenses and was

ordered to serve two concurrent life imprisonment sentences, with the possibility of

parole.

Cooper began serving his sentence on May 13, 1982, and received an initial parole

hearing in 2005. At that time, the Board declined parole due to the seriousness of the

offense. Cooper received another parole hearing in 2011 and again the Board declined

parole due to the seriousness of the offense. Cooper’s third parole hearing was held on

February 2, 2017. After the hearing, two board members voted to grant parole, three

voted to decline parole, and two voted to continue the hearing for further evaluation.2 A

rehearing was held on April 4, 2017. On April 18, 2017, Cooper received notification

that the Board again declined parole, citing seriousness of the offense. The Board also

recommended that Cooper complete “Group Therapy” and “Pro-Social Life Skills.”

Cooper’s next parole hearing was set for April 2020. Cooper filed a request for appeal

with the Board, which was denied on June 23, 2017.

On August 23, 2017, Cooper filed a petition for writ of certiorari in the chancery

court of Davidson County, seeking review of the Board’s decision from the April 4, 2017

hearing. The trial court granted review without opposition from the Board. Cooper

asserted four claims against the Board, arguing that:

1. The Board of Parole has acted arbitrarily, fraudulently, illegally, and has

exceeded its statutory and discretionary authority by its practice of

requiring Petitioner to serve a longer term of imprisonment because of

parole opposition from family of the victims than is required of similarly

situated offenders without parole opposition.

2. The Board of Parole has acted arbitrarily, fraudulently, illegally, and has

exceed[ed] its statutory and discretionary authority by failing to follow its

rules and policies through its continued denial of parole to Petitioner, when

the Board's objective decision making guidelines recommend parole.

3. The Board of Parole has acted arbitrarily, fraudulently, and illegally, and

has exceed[ed] authority by the retroactive application to him of parole

standards that have been implemented after his offense and that have

2

In order for the Board to grant parole to an inmate convicted of first degree murder, a four vote

concurrence is required. See Tenn. Code Ann. § 40-28-105(4)(A).

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operated to his disadvantage by creating a significant risk of increased

punishment in violation of the ex post facto clause of the Tennessee and

Federal Constitution[s].

4. The Board of Parole has acted arbitrarily, fraudulently, illegally, and has

exceed[ed] its authority in the manner in which Petitioner’s parole hearing

was conducted[.]

On June 28, 2018, the chancery court entered a memorandum and final order

dismissing the petition filed by Cooper. The chancery court concluded that the Board did

not act illegally, fraudulently, arbitrarily, or in excess of its jurisdiction, in denying

Cooper parole. It also found that there were no ex post facto violations. Cooper timely

filed a notice of appeal to this Court.

II. ISSUES PRESENTED

Cooper presents one issue for review on appeal, which we have slightly restated:

Whether the chancery court erred in dismissing the petition for writ of certiorari.

In its posture as appellee, the Board presents an additional issue for review:

Whether Cooper has waived all issues for review by failing to properly brief the issues

and by presenting new issues on appeal that were not raised in the trial court. The Board

also argues that the trial court properly dismissed the petition for writ of certiorari as the

Board did not act illegally, fraudulently, arbitrarily or in excess of its jurisdiction in

conducting Cooper’s parole proceedings. For the following reasons, we affirm the

chancery court’s order of dismissal.

III. DISCUSSION

A. Standard of Review

“Inmates may use the common law writ of certiorari to seek review of decisions

made by prison disciplinary boards, parole eligibility review boards, and other similar

tribunals.” Greenwood v. Tenn. Bd. of Parole, 547 S.W.3d 207, 213 (Tenn. Ct. App.

2017) (citing Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 712 (Tenn. 2003)). The

Board determines whether an inmate “should be granted parole,” not the courts. Bibbs v.

Tenn. Bd. of Parole, No. M2015-01755-COA-R3-CV, 2016 WL 1650302, at *2 (Tenn.

Ct. App. Apr. 22, 2016) (citing Hopkins v. Tenn. Bd. of Paroles and Probation, 60

S.W.3d 79, 82 (Tenn. Ct. App. 2001)). “Judicial review of a parole decision made by the

Board is narrow; it is limited to consideration of whether the Board exceeded its

jurisdiction or acted illegally, arbitrarily, or fraudulently.” Brennan v. Bd. of Parole, 512

S.W.3d 871, 873 (Tenn. 2017) (citing Tenn. Code Ann. § 27-8-101; Stewart v. Schofield,

368 S.W.3d 457, 463 (Tenn. 2012); Willis, 113 S.W.3d at 712). Accordingly, “[t]he

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reviewing court does not inquire into the intrinsic correctness of the Board’s decision,

reweigh the evidence, or substitute its judgment for that of the Board.” Id. (citing State v.

Lane, 254 S.W.3d 349, 355 (Tenn. 2008); Robinson v. Clement, 65 S.W.3d 632, 635

(Tenn. Ct. App. 2001)).

B. Waiver of Issues

As an initial matter, we note that Cooper is a pro se litigant and may have limited

knowledge of substantive and procedural rules. However, such limitations do not excuse

a pro se litigant from complying with the same standards to which lawyers must adhere.

Blanchard v. Tenn. Bd. of Prob. & Parole, No. E2012-00663-COA-R3-CV, 2012 WL

5993734, at *2 (Tenn. Ct. App. Dec. 3, 2012). As explained by this Court:

Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts. The courts should take into account that many pro

se litigants have no legal training and little familiarity with the judicial

system. However, the courts must also be mindful of the boundary between

fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.

Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected

to observe.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn.

Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.

App. 2003)).

With the foregoing in mind, we first address the Board’s issue as to whether

Cooper has waived appellate review by failing to comply with Rule 27 of the Tennessee

Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals. Rule 27,

in relevant part, provides that the brief of the appellant shall contain the following:

(7) An argument, which may be preceded by a summary of argument,

setting forth:

(A) the contentions of the appellant with respect to the issues presented,

and the reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities and appropriate references

to the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable standard of review

(which may appear in the discussion of the issue or under a separate

heading placed before the discussion of the issues);

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Tenn. R. App. 27(a)(7). Furthermore, Rule 6 of the Rules of the Court of Appeals

requires an appellate brief to contain a written argument in regard to each issue on appeal.

The Rule further provides that the argument shall include:

(1) A statement by the appellant of the alleged erroneous action of the trial

court which raises the issue and a statement by the appellee of any action of

the trial court which is relied upon to correct the alleged error, with citation

to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to

the attention of the trial judge with citation to that part of the record where

appellant's challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged

error, with citations to the record showing where the resultant prejudice is

recorded.

(4) A statement of each determinative fact relied upon with citation to the

record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be

considered on appeal unless the argument contains a specific reference to

the page or pages of the record where such action is recorded. No assertion

of fact will be considered on appeal unless the argument contains a

reference to the page or pages of the record where evidence of such fact is

recorded.

Tenn. Ct. App. R. 6(a) and (b).

Cooper’s appellate brief wholly fails to comply with the foregoing requirements.

Cooper, in the argument section of his brief, stated that he “incorporates the argument

made in his originating petition as if set forth verbatim herein. . . .” Such a statement

does not comply with Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure or

Rule 6 of the Rules of the Court of Appeals. See Davis v. State, No. M2010-01045-CCA-

R3-PD, 2012 WL 3679571, at *43 (Tenn. Crim. App. Aug. 24, 2012) (holding that the

petitioner’s statement in his brief incorporating by reference all of his claims asserted in

his original petition does not prevent waiver of those issues not specifically raised and

argued by the petitioner in his appellate brief). Cooper failed to provide a single citation

to the record; although, he did attach a copy of his petition for writ of certiorari to his

brief. However, the action of attaching a document containing arguments made in the

trial court does not excuse compliance with Rule 27(a)(7). See Bean v. Bean, 40 S.W.3d

52, 56 (Tenn. Ct. App. 2000) (explaining that “parties cannot expect this court to do its

work for them” and the court “is under no duty to verify unsupported allegations in a

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party’s brief, or for that matter consider issues raised but not argued in the brief.”).

Ultimately, Cooper’s brief contains no argument responsive to the issue presented or the

trial court’s ruling.

The remainder of Cooper’s arguments were presented for the first time in this

appeal. After incorporating by reference his petition from the chancery court, Cooper

stated in his brief that he was including “[a]dditional argument set forth below [to]

address additional matters not specifically briefed or addressed at the lower court.” An

appeal is not an opportunity for a litigant to assert new arguments not raised before the

trial court or “‘change its strategy or theory in midstream, and advocate a different

ground or reason in this Court.’” State v. Abbott, No. 01C01-9607-CC-00293, 1996 WL

411645, at *2 (Tenn. Crim. App. July 24, 1996) (citing State v. Aucoin, 756 S.W.2d 705,

715 (Tenn. Crim. App. 1988); State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App.

1988)). It is undisputed that the new arguments Cooper attempts to present in this appeal

were never “called to the attention of the trial judge.” Tenn. Ct. App. R. 6(a)(2).

The first argument made by Cooper, in his brief, is that “the Board lacks the

constitutional power to exercise a judicial function, and therefore lacks subject matter

jurisdiction, to deny his parole based upon the ‘seriousness of the offense.’”3 Cooper

contends that an issue of subject matter jurisdiction may be raised for the first time on

appeal. Cooper is correct in that “Tenn. R. App. P. 13(b) permits the issue of a court’s

subject matter jurisdiction to be raised for the first time on appeal.” See In re Estate of

Trigg, 368 S.W.3d 483, 488 n. 2 (Tenn. 2012) (explaining that “questions involving a

court’s subject matter jurisdiction have been deemed so important that appellate courts

may address them even if they were not raised in the trial court”) (internal citations

omitted). However, Cooper is not asserting that a court lacks subject matter jurisdiction,

but rather the Board. “Subject matter jurisdiction refers to a court’s, [not the Board’s],

lawful authority to adjudicate a controversy.” Cox v. Lucas, 576 S.W.3d 356, 359 (Tenn.

2019) (citing Chapman v. DaVita, Inc., 380 S.W.3d 710, 712–13 (Tenn. 2012)).

Accordingly, subject matter jurisdiction is not challenged in this appeal.

Additionally, the Board had authority to deny Cooper parole based upon the

seriousness of the offense. In a case analogous to Cooper’s, an inmate complained that

Tennessee Code Annotated section 40-35-503(b)(2), “which was originally enacted by

the legislature on July 1, 1982, is an ex post facto law.” Williams v. Tenn. Bd. of Prob. &

Parole, No. M2006-02336-COA-R3-CV, 2007 WL 3132935, at *2 (Tenn. Ct. App. Oct.

26, 2007). In addressing the inmate’s argument, we explained that:

Tenn. Code Ann. § 40-3614 (1981) stated in pertinent part:

3

Cooper characterizes his argument on appeal as a challenge to subject matter jurisdiction;

however, he argued to the trial court that the Board’s decision to deny him parole for the cited reason of

seriousness of the offense violated the State and Federal Ex Post Facto clauses.

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Grounds for parole-Terms-Parole being a privilege and not a right, no

prisoner shall be released on parole merely as a reward for good conduct or

efficient performance of duties assigned in prison, but only if the board is

of opinion that there is reasonable probability that if such prisoner is

released he will live and remain at liberty without violating the law, and

that his release is not incompatible with the welfare of society.

On July 1, 1982, the amended portion [of the] Code became effective, and §

40-35-503(b)(2) now provides in pertinent part:

Release on parole is a privilege and not a right, and no inmate convicted

shall be granted parole if the board finds that . . . (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.

Tenn. Code Ann. § 40-35-503. . . . This Court has previously held that §

40-35-503(b)(2) “does not affect parole eligibility date or denial of parole,

but instead enumerates one reason which the parole board may elect, in its

discretion, to deny parole.” Dyer v. Tennessee Bd. of Paroles, No. M1999-

00787-COA-R3-CV, 2001 WL 401596, *2 (Tenn. Ct. App. M.S., filed Apr.

23, 2001). In Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478, 483

(Tenn. 1997), our Supreme Court held that the denial of parole on the basis

of this factor does not raise any constitutional issues.

Therefore, the Board’s stated reason for denial of “seriousness of offense”

under § 40-35-503(b)(2) is not an ex post facto violation.

Id. at *2-3 (emphasis in original). Furthermore, as the Supreme Court cited in Brennan,

512 S.W.3d at 875 n.4, there are numerous cases that have upheld the Board’s decisions

to deny parole on the basis of the seriousness of the offense. Accordingly, Cooper’s

argument that the Board lacked authority to deny him parole or that such action by the

Board constituted a judicial act is without merit. See Greenwood, 547 S.W.3d at 213-17

(explaining that the Board, not the courts, determines whether to grant or deny parole and

the Board has the statutory authority to deny parole based on the seriousness of the

offense) (internal citations omitted). Cooper has failed to properly present any arguments

that show that the Board exceeded its jurisdiction or acted illegally, arbitrarily, or

fraudulently in denying him parole.

In sum, we reiterate that Cooper’s remaining arguments, as stated in his brief, are

being presented for the first time on appeal. Additionally, Cooper has failed to comply

with the rules concerning the content of his appellate brief. As a result, we decline to

address any additional arguments on appeal and consider the arguments to be waived. See

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Bean, 40 S.W.3d at 54-55 (citing Crowe v. Birmingham & N.W. Ry. Co., 156 Tenn. 349,

1 S.W.2d 781 (1928) (explaining “that it will not find this Court in error for not

considering a case on its merits where the . . . [appellant] did not comply with the rules of

this Court.”)).4

V. CONCLUSION

For the aforementioned reasons, the chancery court’s order of dismissal is

affirmed. Costs of this appeal are taxed to the appellant, William Cooper, for which

execution may issue if necessary.

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CARMA DENNIS MCGEE, JUDGE

4

We recognize that there have been cases where this Court considered the merits of an appeal,

despite the deficiencies in an appellant’s brief; however, in many of those cases we have cautioned

litigants that we may not be so forgiving in the future. See Davis v. Tenn. Bd. of Water Quality, Oil, &

Gas, No. W2016-00870-COA-R3-CV, 2017 WL 4621307, at *3 (Tenn. Ct. App. Oct. 16, 2017); Eastman

Credit Union v. Hodges, No. E2013-02039-COA-R3-CV, 2015 WL 557061, at *1 n.2 (Tenn. Ct. App.

Feb. 10, 2015); Garrard v. Tenn. Dep’t of Correction, No. M2013-01525-COA-R3-CV, 2014 WL

1887298, at *3 (Tenn. Ct. App. May 8, 2014).

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