1

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

ERNEST ANDERSON v. DAVID MILLS, WARDEN

 Appeal from the Circuit Court for Lauderdale County

No. 5964 Joe H. Walker, III, Judge

No. W2005-01403-CCA-R3-HC - Filed October 18, 2005

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by

opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing

the trial court's denial of habeas corpus relief. A review of the record reveals that the Petitioner is

not entitled to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of

the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of

the Court of Criminal Appeals

J.C. MCLIN, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT

WILLIAMS, JJ., joined.

Ernest Anderson, pro se.

Paul G. Summers, Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General,

for the appellee, State of Tennessee.

MEMORANDUM OPINION

The Petitioner, Ernest Anderson, was convicted, on July 10, 1989, of one count of second

degree murder. For this offense, Petitioner was sentenced to thirty (30) years in the Department of

Correction. As alleged by the Petitioner, he was released on parole in 1995. He violated this release

by a subsequent arrest and conviction and was incarcerated. Petitioner was, again, released on parole
2

in 1997. He was arrested in 2000 as a result of a domestic dispute. He was also arrested for public

intoxication for which he was convicted and sentenced to two days in jail. Petitioner’s parole was

revoked as a result of his misdemeanor conviction. Petitioner was subsequently denied parole based

upon findings that “[t]here is substantial risk that the offender will not conform to the conditions of

release,” “[t]he release from custody at this time would depreciate the seriousness of the crime of

which the offender stands convicted or promote disrespect for the law,” and “due to parole

violations.” Petitioner is currently confined at the West Tennessee State Penitentiary in Henning,

Tennessee.

On May 24, 2005, Petitioner filed a habeas corpus petition in the Circuit Court for

Lauderdale County. As grounds for relief, Petitioner asserted that he is being unlawfully restrained

of his liberty by the State of Tennessee’s Parole and Probation Board. Specifically, he complained

that, he is being illegally restrained by the parole board in violation of their parole guidelines.

Petitioner further alleged that he has a liberty interest toward parole and such liberty may not be

denied without due process. In support of his immediate release from confinement and not another

parole hearing, Petitioner relied upon Wilkinson v. Dotson, – U.S.–, 125 S. Ct. 1242 (2005). The

trial court reviewed the petition and, on May 27, 2005, denied the same, finding that the Petitioner’s

challenge to the actions of the Board of Probation and Parole was not cognizable in a habeas corpus

proceeding. Petitioner timely appealed the lower court’s decision.

A writ of habeas corpus may be granted only when the petitioner has established lack of

jurisdiction for the order of confinement or that he is otherwise entitled to immediate release because

of the expiration of his sentence. See Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State

ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (1969). The Petitioner in this case

does not argue that his sentence has expired nor does he argue that his judgment or sentence is void.

Rather, Petitioner challenges the actions oftheBoard of Probation and Parole. Actions by the Parole

Board are reviewable by the common law writ of certiorari, see Thandiwe v. Traugher, 909 S.W.2d

802, 803 (Tenn. App. 1994), and must be filed in chancery court. Tenn. Code Ann. § 27-9-102. The

Petitioner argues, however, that the United States Supreme Court recently held that a prisoner should

prosecute a writ of habeas corpus if he seeks immediate release from custody and not another parole

hearing. In Wilkinson v. Dotson, --- U.S. ----, 125 S.Ct. 1242 (2005), the Supreme Court held that

prisoners cannot use a section 1983 action to challenge the fact or duration of his confinement.

Rather, such actions must be brought under the federal habeas corpus statutes or appropriate state

relief. Id. (emphasis added). While it istrue that Petitionerseeks “immediate release” from custody,

the basis of his relief is not that his sentence has expired or that the judgment against him is void.

Rather, his complaint challenges the Parole Board’s denial of parole, including the unconstitutional

application of the Board’s guidelines. Such complaints are not a cognizable ground for state habeas

corpus relief. 

Additionally, Petitioner asserts that the right to parole is a protected liberty interest, entitling

him to due process of law. Tennessee courts have consistently interpreted Tennessee law as not

creating a liberty interest in parole decisions. See, e.g., Wells v. Tennessee Bd. of Paroles, 909

S.W.2d 826 (1995); Kaylor v. Bradley, 912 S.W.2d 728, 733 (Tenn. App. 1995). There is no
3

constitutional or inherent right to be conditionally released before the expiration of a prison sentence.

State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (citing Greenholtz v. Inmates of the Neb. Penal

and Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100 (1979); Daniels v. Traughber, 984 S.W.2d 918,

924 (Tenn. Ct. App. 1998);see also Tenn. Code Ann. § 40-35-503(b) (2003) (stating that "[r]elease

on parole is a privilege and not a right")). Although a state may establish a parole system, it has no

duty to do so, and thus, the presence of a parole system by itself does not give rise to a

constitutionally-protected liberty interest in parole release. Id. at 7; Board of Pardons v. Allen, 482

U.S. 369, 373, 107 S.Ct. 2415 (1987). Rather, a liberty interest is present only if state law entitles

an inmate to release on parole. Sutton, 166 S.W.3d at 691; see also Inmates of Orient Corr. Inst.

v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991). Therefore, Tennessee Code

Annotated section 40-35-501 (2003), the statute addressing parole eligibility dates, does not provide

a certainty of parole for sentences greater than two years. Sutton, 166 S.W.3d at 691. Rather, it

simply "provides no more than a mere hope that the benefit will be obtained." Id. (citing Greenholtz,

442 U.S. at 11, 99 S.Ct. 2100). 

If a habeas corpus petition fails to state a cognizable claim for relief, it may be summarily

dismissed. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). The Petitioner’s

challenges to the Parole Board’s denial of parole and to the constitutionality of the Board’s

guidelines are not claims recognized in a state habeas corpus proceeding as they do not result in a

void judgment. Thus, the trial court properly dismissed the petition.

Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial court

is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.

____________________________________

J.C. MCLIN, JUDGE