### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M arch 14, 2001 EDDIE J. PHIFER v. TENNESSEE BOARD OF PAROLE, ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 99-2696-III Ellen Hobbs Lyle, Chancellor

No. M2000-01509-COA-R3-CV - Filed Nove mber 1, 2002

This is a pro se appeal from a denial of parol e. Mr. Phif

er alleges sever

al proble ms surround

ing his parole h earing that he c laims viola

te his due processand equal protection rights and violate the ex post facto constitutional prohibition. Because a prisoner has noliberty interest in relea se on par

ole before the expiration of his sentence, due process protections do not attachto parole

determin ations. Becau se at the time of Mr. Phifer’s crime and conviction, the law reg arding parole gave t ota l discretion to the Board and authorized denial if the Board found tha t parole would depreciate the seriousness of the crime committed, chang es in Board procedure do not violate ex post fa cto prohibitio ns. Because the Board ha s provideda rational basis for deny ing in-person interviews for prisoners housed out of state, no equal protection violation was shown. Consequently , we affirm the trial court’s dismissal of the petition for failure to state a claim upon which relief may be granted. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM C. K OCH , J R ., J., joined. Eddie J. Phifer, Crestview, Florida, Pro Se.
Paul G. Summers, Attor ne y G eneral and Repor

ter; Mich ael Moor

e, Solicito

r Gener al; Pamela

S. Lorc h, Assista nt Attorne

y General , for the

appelle es, Tennessee B oard of Pa role, et al.
OPINION
This case arose when the petitioner, Eddie J. Phifer, a Tennessee De partment of

Correction inmate housed in a Florida prison, filed a petition for a writ of mandamus and writ of c ertiora

ri in the chancery

court for Davids on Count y. He complained about the procedures employ ed by the TennesseeBoard of Probation & Parole in his parole g rant hearing. The B oard filed a motion to dismiss for

failure to state a claim whi ch was g

ranted b y the chanc ery

court. Mr . Phifer a

ppeals.1 Bec ause the lower court dismi ssed Mr. Phifer’s clai m prior to the record being sent up from the Board, we are

limi ted to the info rmatio n con tained in the C omp laint. Furt hermor e, t

he Board does not di sput e any of t he i nfor mati on contai ned in the documents attached to the Complaint, and, on a motion t o dismis s, we mus t ta ke such al legations as true. 2 Mr. Phifer has been housed as an inmate in the Okaloosa Correct ional I nstitution in Crestview, Florida since June, 1981. He is in F lorida pu rsuant to the I nterstat e Correct ions Compact. He is serving two consecutive twenty -five yea r sentences for crimes committed in Tennessee on December 3, 1979: aggr

avated kidnaping and agg ravated rape. According to Mr. Phif

er’s co mplaint, th

is appea l arises f

rom a numb er of parol e consider ations, some of wh

ich were the result of succ essful a dministra tive appe als by Mr. Phifer from earlier hearings and deci sions. 1 Accord ing to ap plicable procedu res, whe n he firs t became eligible for parole, Mr. Phifer was interviewed by a Florida

prison official who recommended parole. A number of month s later, h e was se nt two lette

rs from th

e Boar d, each containing the sa

me substantive content of relevan ce: a hearing summary stating a hearing was held on F ebruary 23, 1998, and parole was denied because “ release at this time would depreciate the seriousness of the offense or promote disrespect of the law.” The next parole review date was set for F ebruary , 2003.
Mr. Phifer a

dministra tively appealed the firs t hearin g resul t, and the Board g ranted h is appeal. The Boa

rd notified Mr. Phife

r that a new non-a

ppeara nce administrativ e appea l parole hearing was set and that he should present any written evidence or documentation five (5) days prior to the hearing. I

n response Mr. Phifer requested an open hearing to allow family and friends to speak on his behalf; to be a

ble to hire a

lawyer to inte

rcede o n his beha

lf; and to be allowed to be present at the hearing. He later rec eived a letter from the Board and a hearing summary notify

ing Mr. Phifer that parole w as declined bec ause release would “depreciate the seriousness of the cr ime for which the offender stands convicted or promote disrespect of the law.” Th e letter stated a new par ole hearing was set for Febr

uary, 2003.
Mr. Phifer requested

an appeal of this second decision on various grounds, including that he didnot receive enough advance notice to provide more information to the Board, the prison had been in a lock down status, and mail was delayed due to Hurricane Georg e. Subsequently, the Board notified Mr. Phi fer

that the “administrative appeal hearing is final and c annot be appealed.” However, because his case was reviewed inadvertently by Board members who finalized the earlier decision, the Board later notified Mr. Phifer that another no n- appearance administrative appeal parole hearing was scheduled and that all su pporting evidenc e and doc

umentatio n must

be submitted five ( 5) days pri or to t he hear ing.
In response, Mr. Phifer requested a continuance and permission to appear in person or at least for his family to be allowed to be pre sent and speak on his be half. Further, he requested a psychologic al evaluation and consideration of reports of staff members as to his progress. The Board sent him a hearing summary from this third hearing stating that parole was de nied because

releas e “would depreciate the seriousness of the crime of which the offe nder sta nds convicted or pr

omote disrespect of the law.” The next hearing da te was set for April, 2005.2 It is not clear from the record before us what t riggered the setting of t his new hearing.

3 A petiti on for common law writ of certiorari from a n adm inistrative d ecision must b e filed with in si xty (60) days of th e order or deci sion complai ned of . Tenn. Code Ann. § 27-9 -102 . The sixty (60 ) day tim e limit is jurisd ictiona l. Thandi we v. Traughber , 909 S. W.2d 802, 804 (Te nn. Ct. App. 1994). This cour t has held that a Board of Parol es decis ion doe s not b eco me fina l, for pur pos es of trigg ering the sixty-day d ead line, until the Bo ard rend ers a deci sion on the priso ner’s ap pea l. Jordan v. Tenness ee Bd. of Paroles , No. 01- A-01- 9607-CH-00347, 1997 Tenn. App. LEXIS 27 (Tenn. Ct. App. Jan . 1 5, 1997 ) ( no Te nn. R. App. P. 11 application fil ed). In Mr. Phifer’s case, his earli er administrative app eals were successful in that they resul ted in new considerati ons by the Board. Thus, he received relief f rom the Board. 3 Mr. Phifer wrote to the Board q uestionin g the ch ange in

the next eli gible he aring t o April, 2005 from February , 2003. He further argued that he h ad a right

to be pre sent or to

a telephonic hearing an d to have his fam ily and friends pre sent on his behalf. The Board sent him notice of another non-appearance parole he aring and again informed him that any informat ion reg arding

his parole should be submitted five (5) days pr ior. 2 Mr. Phifer’s mother

submitted a

letter in support of his parole, and the Board wrote her informing her

that a hearing was scheduled for November 29, 1999, and any infor

mation regarding this hearing should be submitted five (5) days pr ior.
The Board l ater wr

ote Mr. Phifer and sent a hearing summary ref

lecting that parole had been deniedon the same grounds as expressed earlier a nd scheduling the next review of his parole for Fe br ua ry, 2003. Thus , the docu ments incl

uded in Mr . Phifer’ s filing indicate his pa role was considered

by the Boa

rd at least four times. Each time, parole w as denie d on the g round tha t parole would depreciate the seriousness of the crime of w hich he was convicted or promote disrespect of the law. Mr. Phifer actually filed his petition for writ of certioraribefore he received notice of the N ovember

1999 hea ring. At the time he filed his petition, he was unaware of the results of the immediate

ly prior he aring b y the Boar d. After this peti tion was fi led, he was notified of the November

1999 hearing and later notified of the Board’ s decision. The trial court was informed about these events. It is the final hear ing, resulting in denial of parole, which is the app ropriate subject o f this app eal. 3
On appeal, Mr. Phifer’s claims are that the pa role boa rd’s d enial of his parole was made pursuant to proce dures wh

ich viola te due pr ocess, equal protection, and the prohibition on ex post4 In addit ion t o the se cl aims , Mr. Phi fer ’s orig inal complai nt i nclu ded o ther a lleg ed grou nds f or rel ief. For example, Mr. Phif

er ori gin all y as serted a complaint that he was no t given a psych olog ical exa minatio n prio r to the p arole hearing but abandons that argument on this appeal. We agree with the Board that the evaluation is mandatory and is require d only after paro le is reco mm end ed. See Te nn. Co de A nn. § 4 0-28 -302 (c); McKinley v. Traughber , No. 01A01- 9804-CH-00205, 1998 Tenn. App. LEXIS 839 (Tenn. Ct. App. Dec. 16, 1998) (no T enn. R. App . P. 11 appli cati on fil ed).
Ad ditiona lly, Mr. Phifer all eged t hat his next

eli gibl e rel ease date was e xten ded fr om Feb ruary, 2 003 to Ap ril, 2005 out of v indictive ness o f the bo ard m emb ers. After one o f t he hear ings de nying p arole , M r. Phife r’s next p arole eligibility hear ing was s et f or Apri l, 2005. I n al l of the prior hear ing s i t was set

forFebrua ry, 2003. Mr. Phifer request ed
an adm inistrative a ppe al of the d ecision conta ining the A pril, 200 5 da te and it wa s grante d. O n the sub sequ ent ap pea l, this mistake was co rrecte d whe n the b oard set the ne xt hear ing da te bac k to the o riginal F ebru ary, 20 03. Th erefo re, this issue is mo ot.

M r. Phifer also alleged he had no t received the ap prop riate sentence cred its. However, in his reply b rief o n app eal, Mr. Phifer states “ Appellant has pr esente d the ja il credit matter previ ously and does not abandon that issue. The Tennessee DOC has si nce awarded these credi ts. ” Mr. Phifer does not advan ce any further concer ns wi th t

he awa rd of those credits. Because he has apparently received f rom the Department the reli ef he requested from the courts , thi s issue is moo t. Further, we agree with the B oard that the p roper p arty to address an is sue of sentence calcul ation is not the Board butthe Depart ment of Corr ecti on, wh o is not apart y t o thi s act ion. Tenn. Code Ann. § 40-28- 129. 4 facto laws. 4 He also alleges he was denied a ccess to the courts because he wasdeniedlegal material s and as sist ance in prepar ing for his p arole h earing.
I.
Prisoners do not have an absolute ri ght to be released from confinement prior to the expiration of their

sentence. Graham v. State , 202 Tenn. 423, 426, 304 S.W.2d 622, 623-24 (1957); Robinson v. Traughber , 13 S.W.3d 361, 364 (Tenn. C t. App. 1999 ); Tarpley v. Traughber , 944 S.W.2d 394, 395 (Tenn. Ct. App . 1996). Thus , parole is a privilege and not a rig ht. Tenn. Code Ann. §§ 40-28- 117(a), 40-35-50 3(b); Arnold v. Tennessee Bd. of Paroles , 956 S.W.2 d 478, 482 (Tenn. 1997). Whe

ther a pr isoner should be g

ranted p arole

is a decision entrusted to the Board, not the courts. State ex. rel. Ivey v. Meado ws , 216 Tenn . 678, 685, 393 S.W.2d 744, 747 (19 65); Rucker v. State , 556 S.W.2d 774, 776 (Tenn. Crim. App. 1977). Persons dissatisfied with the Board’s decisions may obtain judicial review using a petition for common law writ of cer tior ari. This petition limits the scope of review to a determination of whether the Boa rd excee ded its ju ri sd ic ti on or ac te d i ll eg al ly, fr au du le nt ly, or arbitrarily

. Turner v. Tennessee Bd. of Paroles , 993 S.W.2d 7 8, 80 (Te nn. Ct. App . 1999); South v. Tenn essee Bd. of Paroles , 946 S.W.2d 31 0, 311 (Te nn. Ct. App . 1996); Powell v. Parole Eligibility Review Bd ., 879 S.W.2d 871, 873 (Tenn. Ct. A pp. 1994) . The pet

ition doesnot empow er the c ourts toinquire in to the intrinsic correctness of the Board’s decision. Robinson , 13 S.W.3d at 364; Turner , 993 S.W.2d at 80. Thus, the courts will not use the common law writ to grant relief when the B oard’s decision was arrived at

in a const itutional a nd lawful manner . Tenn. Co de Ann. § 4 0-28-115 (c); Arnold , 956 S.W.2d at 48 0; Powell , 879 S.W.2d at 873.5 We note the courts have consi stentl y upheld a simil arly worded groun d ap plicab le to other prisoners, the

seriou sness o f the offens e, T enn. C ode § 40 -35-5 03( b)(2 ). Arn old , 956 S.W .2d a t 482 ; Robinson , 13 S. W.3d at 363. 5 Becau se no prisoner has a constitutional or inherent right to be conditionally relea sed before the expiration

of a vali d sentence, Greenholtz v. Inmates of the Neb. Penal and Corr. Complex , 442 U.S. 1, 7-8, 99 S. Ct. 2100, 2104 (1979), a prisone r has no c onstitution ally -protected liber ty in terest in parole. Tenn. Cod

e Ann. § 40 -35-503(

b); Wrigh t v. Tramme ll , 810 F.2d 589, 591 (6th Cir. 1987); Kaylor v. Bradley , 912 S.W.2d 728, 733 (Tenn. Ct. App. 1995). Without such an interest, due process does not attach.
Co ns eq ue nt ly, no constitutionally required proc edures exist for a hearingon whether to grant parole. We additionally note that Mr. Phifer was se ntenced as a Class X felon an d, co ns eq ue nt ly, his consideration for par

ole is governed by

Tenn. Code Ann. §§ 40-28-301 and -302 (repealed 1985)

. The first of these statutes provides for release eligibility only after

the prisoner has served forty per cent (40%) of the sentence actually imposed, including forty pe r cent (40%) of the combination of consecutive sentences, undiminished by sente nce reduction credits. Tenn. Code Ann. § 40-28-302 provides : (a) The releas e classif

ication st atus for a person convicted of a Clas s X felony shall be det erm ined by the administrative authority vested by law with author ity over pardon, parole, and rele ase rec ommendat ions a nd determin ations, a

nd which s hall hereinafter be defined as the “ authority.” (b) Rel ease classification is a privilege and not a r ight, and no person convicted o f a Class X felony shall be g ran ted rele ase classification status if the authority f inds that: (1) Ther e is a substantial risk that the person will not conform to the condition s of the r

elease progra m; (2) The release from custody at the time

would depreciate the seriousness of the crime of which the persons stands convicted or promote disrespect for the law; 5 (3) The rele ase fro m custody at the time

would have a substantia

lly a dverse effect on institutional discipline; or (4) The person’s continued correctional treatment, medical care or vocational or other training in the insti

tution will s ubstantia

lly e nhance the pers on’s cap acity

to lead a law-abiding life when given release status at a later time.
Becau se Mr. Phife

r had no r ight to pa rolebefore

the expira

tion of hissentenc e, we ag ree with the trial court tha t he has f ailed to st ate a cl aim of de

nial of du e proce ss.6 The interpre tations by th e Uni ted Sta tes Supr eme Court of the federal const ituti onal provision and those of the Tennessee Supreme Co urt of the state consti tutional provision are complementary and c onsisten t. Kaylor , 912 S. W.2d at 73 1. 6 II.
Si mi la rl y, Mr. Phifer has failed to state a claim based upon the constitut ional prohi bition agains t ex post fa cto application of penal statutes found in both the United States Constitution , Article I, Section 10, and the Constitution of Tennessee, Article I , Section 11. 6 The ex post fa cto prohibition is “aimed at laws that ‘retroactively alter the defin ition of crimes or increase the punishmentfor criminal acts.’” California D ep’t of Cor r. v. Morales , 514 U.S. 499, 504, 115 S. C t. 1597, 1601 (1995). An ex post fa cto law “changes the punishment, and inflicts a gr eater punishment than the law annexedto the crime when committed.” Weaver v. Graham , 450 U.S. 24, 32-33, 101 S. Ct. 960, 966 (1981). The critical question in an ex post facto

claim is “whether the law change s the punishment to the defendant’s disadvantage, or inflicts a g reater punishment than the law allowed when the offense occurred.” State v. Pearson , 858 S.W.2d 879, 883 (Tenn. 1993).
Under both state

and federal constitutions and cases interpreting them, two factors must be present to establi sh a violation of the ex post fa cto prohibitio n: (1) the law must a

pply retrosp ectively to events occurring before its ena ctment; and (2) it must disadvantage the offender a ffected b y it

. State v. Ricci , 914 S.W.2d 4 75, 480 (Tenn. 1996 ); Pearson , 858 S.W.2d at 882 (quoting Miller v. Florida , 482 U.S. 4 23, 430, 107 S. Ct. 2446, 2451 (198 7)); Kaylor , 912 S.W.2d at 732.
Actions which extend parole eligibility by altering the criteria for such el igibility can implicate the ex post fa cto cl ause because eligibility for parole consideration is part of the law annexed to the crime when committed. Kaylor , 912 S .W.2 d at 73 2 (cit ing Weaver , 450 U.S. at 32- 33, 101 S. Ct. at 966 (other citations omitted)). As the United States Supreme Court has stated:

. . . retroactive alteration of parole or e arly re lease provisions, like the r etroa ctive application of

provisions thatgovern initial sentencing, implicates the Ex Post Fa cto Clause because such credits are “one determinant

of petitioner’s prison term . . . and

. . . [the petitioner’s] effective sentence is altered once this determinant is changed.” Lynce v . Mathis , 519 U.S. 433, 445, 117 S. Ct. 891, 898 (1997) (citations omitted).
In the instant case, the an al ysi s o f a ny ex post facto

implication of Mr. Phi fer’s c laims must begin with Tenn. Code Ann. §§ 40-28-301 and -302, which were pa rt of “the law annexed to the crime” which Mr. Phifer committedin 1979. By their pla in words, those statutes put offenders on notice that if convicted of a Class X f

elony , their re

lease classification status was to be determined by the Boa rd in its dis cretion

and that r

elease on parole

was not a

vailable if the Board fou nd that such release would depreciate the ser iousness of the crime committed or promote disrespect for the law.7

Mr. Phifer first cha llenge s the Board’s hearing proc edures for prisoners held out of state, which he alleges were adopted a fter his conviction. T he provisions of the Interstate Corrections Compact were enacted in 1973 and have not since been amended. Theref ore, the applica tion of the se provisions has not changed since Mr. Phifer was convicted of aggravated kidnaping and aggra vated rape in 1979.
The Board’ s ado ption of procedures to be followed for hearing s in absentia does not implicate the ex post facto

prohibitio n becau se such procedures do not increase the punishment for a crime nor do they

change the

substantive criteria for parole eligibility

. “Even if a law ope

rates to the defen dant’s detriment, the ex post fa cto prohibition does not restrict ‘legislative control of remedies and modes of procedure which do not affect matters of

substance.’” Miller , 482 U.S. at 433, 107 S. Ct. at 2452 (q uotin g Dobbert v. Florida , 432 U.S. 282, 293, 97 S. Ct. 2290, 2298 (1977)).
The United States Supreme Court has addressed an ex post fa cto challenge to a legislative amendment

decreasing the freque

ncy of parole suitability hearing s wherein the prisoner argued that the ex post fa cto clause forbids any legislative change that has any conceivable r

isk of affect ing a prisoner’s punishment. In refusing to adopt that position, the Court stated: Respondent’s approach would require that we invalidate a ny of a number of minor (andperhapsinevitab le) mech anical c hange s that mig

ht produc e some re

mote risk of impact on a prisone r's expe cted term of confinement. Under respondent’s approach, the judiciary would be charged under the Ex Post Fa cto Clause with the m icro manage

ment of a

n endlessarray

of legi slative a

djustmentsto parole

an d sentencing procedures, including such innocuous adjustments as chang es to the membersh

ip of the Board of Prison terms, restrictions in the d ura tion of the

parole h earing, re strictions on the time allotted for a convicted defendant’s right of allocution before

a sentencing jud

ge, and page

lim itations on a defe ndant’s objections to pre-se ntenc e repor ts or o n docu ments seeki ng a pardon from the gover nor. The se andcountle s s other changes might crea te some speculative, attenuated risk of affecting a prisone

r’s actu al term of

confine ment by making itmore difficult for him to make a persuasive case for

early r elease, but that fact alone cannot end the matter for ex post

facto pu rposes. Morales , 514 U.S. at 508-09, 115 S. Ct. at 1602-03.
The United Sta

tes Court o f Appeals for the Sixth Circuit has also considered the issue of whether legislative changes in par ole pr ocedure s, including a de crease in the fre quency of parol e hearings and an increase

in the number of members on the parole board, violated the ex post facto clause and held: Changes in the numb er of Par ole Boa rd membe rs is a procedural matter and does not implicate ex post fa cto protections. Collins , 497 U.S. 3 7, 45; Miller v. Florida , 4828

U.S. 423 (1987). Furthermore, under the Morales test, Petit i on er has not demonstratedhow the change in the size of the parole Board create s a suffic ient risk of increasing his punishment. The 1992 amendments do not increase the Petitioner’s burden to qualify

for par ole. The parole g uideline s remain e ssentiall y c onstant. Mich. Comp. L aw Ann. § 791.233e . Thus, Pet itioner ha s no gre ate r substant ive burden in convincing sixmembers than in convincing three members, as long as the same standards apply

. Cummings v. Burt , 121 F.3d 707, 1997 U.S. App. LEXI S 21060, at*7-*8 (6th Cir. Aug. 4, 1997).
Mr. Phifer also asserts that the application of a 1998 amendment to Tenn. Code Ann. § 40- 28-105(d)(3) requi ring four (4) rath er than t hree (3 ) votes to

approve parole f or cert ain offe nses, including rape, is an ex post facto application of the law and not permissible. Specifically , he argues that this change imposes a harsher and retroactive application of laws to his parole release. I n Harris v. Traughber , No. M2000-01146-COA-R3-CV, 2001 Tenn. App. LEXI S 490 (Ten

n. Ct. App. July 13, 2001) (no Tenn. R. A pp . P. 11 application filed), this court considered the same issue and, relying on Miller , Morales , and Cummings , held that the 1998 amendment did nothing to change the standard for parole.
A proceduralpolicy

on the numb er of vot

es requi red to ap prove pa roledoes not increase the punishmentfor a crime and, therefore, does not implicate ex post facto

considerations. In addition, Mr. Phifer’s parole was denied unanimously . He did not receive one vote, much less three, in favor of a g ra nt of

pa ro le . T hu s, he ha s n ot al le ge d t ha t h is de ni al of pa ro le wa s a ff

ec te d b y the cha nge from three (3) votes to four (4).
We affirm the trial court’sholding t hat Mr. Phi fer fa

iled to sta te a claim for relief based on the ex post fa cto prohibition.
III.
The heart of Mr. Phifer’s complain t stems from his detention out of state and its effect on the procedures used by the Boar d. In particular, he objects to being subject to “non-appearance ” hearings.
We begin with the statutory provisions governing how the Board ma y conduct its review for a gran t of paro le. Tennessee Co de Annota ted § 40-2 8-105(d) (2)state s: The chair of the board may designate individual members of the board of probation andparole a

nd appoin t hearin g offic ers who s hall be a uthorized to conduct hearin gs, take testimony and make proposed f indings of f

act and recommendations to the board regar ding a grant, denia l, rev ocati on or r escis sion of paro le. S uch fi ndin gs an d7 Mr. Phifer also cla ims t he meet ing res ult

ing in t he deni al of

his parole was held i n secret and no minutes were kep t, contra ry to T enn. C ode Ann. § 40-28-105(b ) and administrati ve policy 501.30, stating that parole hearings are open to the p ublic. T he T enne ssee S upre me C ourt ad dress ed this issu e in Arnold v. Tennessee Bd. of Paroles , 956 S. W.2d 478 (Te nn. 19 97) . The priso ner in Arn old alleged that his parole hearing was hel d in secret and no minutes were kept in violation of the Op en M eeting Acts, Tenn. Code Ann. § 8-44- 101 et s eq. ; Tenn. Code A nn. § 40-28-105 and the Open Par ole Hearings Act, Tenn. Code Ann. § 40-28- 501 et seq. The court expl aine d “t he Board’ s enabli ng st atut e does n ot require a meeting in order to deli berate or make paro le dec isions.” Arn old , 956 S.W .2d at 480. Furthermore, the hearing summary sheet in w hich ea ch bo ard m emb er signe d off to agre e, mo dify or d isagree with parol e equated to apubli c bal lot
or roll call vo te. Id . at 481 -82. T he on ly reco rd req uired to be ke pt of the boa rd’s de cision m aking p roce ss is the hearing summary form whi ch Mr. Phifer receiv ed stat

ing t he names, decisi on and reason of each member’s decisi on. The fact that board members revi ewed the contents of the f ile at dif ferent times did not vi olate a ny st atut e or procedure. 9 recommendations shall be reduced to writing and reviewed by board members who shall ado pt, modify

or reje ct the recommenda tions. 7 Thus, the statutes make clear that the “hearing ” may, in fact, consist of an interview with one Board member or a heari ng officer. Other informati on consider ed by the Bo ard includes records regarding the priso ner’s of

fense, institutiona

l record, and any other info rmation the Board determines is relevant. The statutes indicate a legislative priority on accurate and comprehensive r ecords for the Board. See, e.g ., Tenn. Code Ann. § 40-28-106(d)(1) (directing the Board and the divisio n of inmate records to “identify the

types of information necessary

to enable the board to properly assess inmates being considered for action by the board”).
Board Policy # 501.30 a

ddresse s parole

releas e hearings, perhapsmore app ropriate ly called interviews. The policy pr ovides for a personal interview for instate prisoners to allow the he aring officer or board member

to address the prisoner’s “history, curr ent situation, parole prospects and any other pe rtinent ma

tters. The inmate

shall be given ample opportunity to express his/her views andpresent relevant materials.” Additionally , the inmate’s friends , family , attorne y, o r those of the victim are allowed to “speak and/or present wr itten information for considerat ion within t he time limits set by the Board Members or Hearing Officer.”
The Interstate Corrections Compact provides, “The fact of confinement in a rece iving sta te shallnot deprive any inmate so confined of any leg al right s which the inmate would have h ad if confinedin an appr

opriate institution

of the se nding sta te.” Ten n. Code An

n. § 41-23 -102, Ar

ticle 4(e). However, the Compact also specifica lly addresses “

hearings.” Any hearing or

hearings to which

an inmate confined pursuant to this compact may be entitled by the l aws of th e sending state may

be had be

fore the appropr iate authorities of the sending state, or of the receiving state if authorized by the sending state. Tenn. Code Ann. § 41-23-102, Article 4(f).
The Board’s policy

addresses “hearings in absentia”and i ncludes a specific provision for prisoners housed out of state:8 In Tester , our Supreme Court

conf irme d the exi ste nce of

a middle standard of “height ened” scrutiny, but the case b efore us do es no t fall within thos e situation s justifying suc h scrutiny. Tester , 879 S. W.2d at 828. 10 No offende

r shall be denied pa

role or g iven a de fermen t unless a persona l hearin g is held before theparole a

uthority . Howeve

r, in cas es in which an inmat e is ser ving a Tenness ee sente

nce in another Sta

te or in a Feder al instituti on, the pa

role aut hority s hall request that the detaining jurisdiction provide a status report on the i nmate’ s institutional history, conduct and pro gre ss. The B oard may request a courte sy hearing from the a

uthority in the det aining j urisdicti on. All

informat ion rece ived will be considered

by the Boa

rd in a non-appearance re

view. The Board Operations staff shallenter the results of that review onto the computerized data base and shall send to the inmate a written copy of the results so that it is received by the inmate within twenty-one ( 21) days of the r eview. Board of Paroles Policies and Procedures # 501.30(I V)(C). Thus, the Board’s policy

provides different procedures for prisoners housed out of state from those housed instate in

one reg ard. The

nature o f the inte

rview or hearing is different. As the Board describes it in its brief, the rules “provide for an administrative review, not an in-pe rson p a role hearing in Tennessee” for those prisoners housed out of state. Mr. Phifer argues that

this difference constitutes a violation of the right to equal protection of the law.
The Tennessee Constitution’s equal protection provi si ons confe r “esse ntially the same protection” as the equal protection clause of the United States Constitution. Tennessee Small Sch. Sys. v. M cWherter, 851 S.W.2d 139, 152 (Tenn. 1993). Equal protection requires that persons similarly situated be treated the same under the l aw, o r that the state treat persons under like circumstances and conditions the same. Genesco, Inc. v. W oods , 578 S.W.2d 639, 641 (Tenn. 1979), superseded

on other grounds by Combustion Eng’g, Inc. v. Jackson , 705 S.W.2d 655 (Tenn. 1986); Jaami v. Conley , 958 S.W.2d 123, 126 (Tenn. Ct. App. 1997). Neverth eless, “ [t]he Four teenth Amendment

guarantees equal laws, not equal r esults.” Personnel Adm’r of Mass. v. Feeney , 442 U.S. 256, 273, 99 S. Ct. 2282, 2293 (1979), aff’d , Feeney v. Perso nnel Adm’ r of Mass ., 445 U.S. 901, 100 S. Ct. 1075 (1980). Equal protection challenges are based upon governmental classifications. The classic analy sis for

suc h challenges involves the application of differing standards depending upon the e ffect. That ana

lys is requir

es strict scrutiny only when the

classifi cation in

terfer es with a fundamental right or operates to the peculiar disadvanta ge of a suspect class. State v. Tester , 879 S.W.2 d 823, 828 (Ten

n. 1994). The standard of r educed scrutiny applies in

other situ ations, 8 requiring only that a ra

tional ba sis exist for the classification, or that the classification have a reasonable relationship to a legitimate state interest. Id

. [U]nless a clas sification trammels fundamental personal rights or is drawn upon inheren tly suspect distinctions such as race, religio n, or alienage, our decisions11

p resume the const itutionality o f the stat

utory discrimin ations and requir e only th a t the clas sificati on challe

nged be rationa lly r elated to a legit imate sta te intere st.
Wilson v. Yaklich , 148 F.3d 596, 604 (6th Cir. 1998) (quot ing City of New Orleans v. Dukes , 427 U.S. 297, 303, 96 S. Ct. 2513 (1976)).
Becau se there is no right to parole a nd beca use prisoners hous ed out of s tateare not a suspect class, the diffe

rentiati on in the ty

pes of int erviewsavailab le is permissible as long as even a rational basis can be shown for the difference. Id .; see also Mayner v. Callahan, 873 F.2d 1 300, 1309 ( 9th Cir. 1989) (stating that prisoners are not a suspect c lass and p arole

consideration is not a fundamental right requiring strict scrutiny). The Te nth Circuit has considered the same issue as that raised by Mr. Phifer herein in Fox v. St

otts , No. 99-3231, 2000 U.S. App. LEXI S 1017 (10th Cir. Jan. 27, 2000) , wher eina Kansa s prisone r servin g his sen

tence in a Florid a correctional f

acility pursuant to th e Inte rstate Correct ions Compact alleg ed that the Kansa s parole board vio la ted h is right to equal protection by preventing

his persona l appeara nce at his parole hearing. The c ourt found that the costs and difficulties of transporting prisoners provided a ra tional basis fo r the cla ssi fication. Id

. 2000 U.S. App. LEXI S 1017, at *7. Herein, the Board argues that out of state pr isoners are treated substantially the same and a rational basis exists for the differential treatment, a fiscal one. We ag ree. Whether in or out of state, the initial hearing is for the purpose of providing the prisoner an interview by a hea

ring officer t o gathe

r informa tion about

the priso ner’s hi story , progr ess, par ole prospects and any other

pertinent information. That interview was conducted by Florida c orrections officia ls and its re sults forw arded to the Boa rd. Additi onally , there i s no gua rantee for oth e r interestedparties, i.e., fa mi ly, friend s o r c ou ns el , t o b e h ea rd at th e h ea ri ng . T he re is on ly a provision that they are

allowed to submit information regarding the g rant of parole. Mr. Phifer was providedno ti ce of

th e r ev ie w a nd wa s a ll ow ed to pr es en t a ny i nfor mation or s tatement s he felt relevant to the parole d

ecision f ive day s prior to

the hearing. Thus, he had the opportunity to present statemen ts from himse

lf or any other pe rson in sup

port of the gran

t of paro le. The f

act that t hese statemen ts must be in writing do es n ot substantially disadvantage his request for early

release on parole. Furthermore, the Board has provided a rational basis for the difference in the nature of the hearin gs or interviews for out of state prisoners: the cost and di fficulties involved in transporting prisoners for an in-person interview. Therefor e, we agree with the trial

court that no equal protection violation e

xists as to the

differe nces in the way pa

role considerations are conducted for in and out of state prisoners.9 The trial court treated t he denial of access cl aim as part of Mr. Phifer’s r equest for a writ of ma nda mus a nd he ld that mandamus was not appro priate because there exis ted no statut e requiring respondents to provide him wit h the mate rials req uested and m and amu s lay only to enforc e a min isterial du ty.

10 He fir st at

tempted t o obtai n legal m ate rials di rectly f rom the Board on several occasions. The Board responded sepa rately to the se req uests b y stating that the y were “u nab le to pr ovid e cop ies of this information” and “th is office d oes n ot hav e the re sourc es to provi de spec if ic v olumes or tit les of the Tennessee Co de Annotated to offenders upon request.” At that t ime, Mr. Phifer attempted to get t he legal materi als through an i nterli brary loan. This requ est was evi dentl y un succ essf ul be caus e shortly t hereafter, a letter from Mr. Phifer to the Director of Board Op erations appears in the t echnical record. In t his let ter, Mr. Phifer

indic ated th at he ne ver recei ved the requested it ems through interl ibrary loan and inquired about purchasing the materi als from the Bo ard. M r. Phife r also c ontac ted the Bo ard’s Hearing Dire ctor, the App ellate R eview Sectio n, and severa l emp loyees of the T enne ssee D epa rtmen t of Co rrectio n in his attem pts to se cure T enne ssee leg al mate rials.

11 But see Lewis v. Casey , 518 U.S. 343, 364- 85, 116 S. Ct. 2174, 2186-2196 (1995) (Thomas, J. concurring) (questioning t

he constitut

ional underpinnings of a right t o assistance i n litigation). 12 IV. A ccess to Leg al Mater

ials Next, Mr. Phifer cl aims that he was denied meaningful acce ss to the courts in that he was deniedrequested legal materials including Te nn. Code Ann. Titles 39 and 40 as well as the Board’s 1979 Rules and Regulations that he sought in preparation for parole proceedings. Although it is not entirely clear, we interpret Mr. Phifer’s pleading s and brief as raising the denialof access claim as part of his equal protection claim. That is, because he is housed in a Florida facility he does not ha

ve as ready access to Tennessee lega l materials as those prisoners housed in prisons in Tennessee. 9
Mr. Phifer

began request ing mate rials in Ma

y of 1998 for t

he purpo se of assisting him wit h his administr

ative ap peal of t he denia l of paro le. His filings and attachments show various efforts to obtain ma

terials f rom both the Board and the Department of Correction. 10 On appeal Mr. Phifer states in his brief that he received “some of the legal m aterial s ” but only after a “deadline.” Alth ough the record

is not totally clear on the issue, it appea rs that Mr. Phifer did obtain the Board’s rules and procedures and those portions of Title 40 of Tennessee Code Annotated relating to par ole. The majority of his continuing complaints have to do with materials reflecting the law in existence at the time

of his cr ime which

he asser ts are re lated to h is ex post facto claim.
A. Constitu

tional Rig ht of Acc ess to Cour

ts
The Supreme Court of the United States recognizes the existence of a constitutional right of accessto the courts and has identified thesources of the right of access in the prisoner context as the Due Process Clause, the Equal Protection Clause, and the First Ame ndment. 11 John L. v. Adams , 969 F.2d228, 231 (6th Cir. 1992). See also Murray v. Giarratano , 492 U.S. 1, 109 S. Ct. 2765 (1989); Bounds v. Smith , 430 U.S. 8 17, 97 S. Ct. 1 491 (1977 ); Wolff v. McDo nnell , 418 U.S. 5 39, 94 S. Ct. 2963 (1974); Johnson v. Avery , 393 U.S. 483, 89 S. Ct. 747 (1969 ); Ex parte H ull , 312 U.S. 546, 61 S. Ct. 640 (1941).13

The landmark case in the area of a pr isoner’s right of

accessto the cou

rts is Bounds v. Smith , 430 U.S. 817, 97 S. Ct. 1491 (1977). Prior to Bounds , it was settled that a state could not impede a prisoner’s access to courts. I n Bounds , a prisoner challenged the adequacy of the only state prison law library

in North Ca

rolina tha t serviced seventy

-seven p risons. No

rthCarolina

argue d that unle ss it obstruct ed the inmates from pursuing their claims, it was fulfilling the requirement that the inmates be given meaningful acc ess to the courts.
The United Sta

tes Supre me Court e xplained that “the fundamental constitutional right of accessto the cou

rts requires pris on author ities to as sist i nmates in t he preparation and filing of meaningful legal papers . . . .” Id . 430 U .S. at 828, 97 S. Ct. at 1498 (footnote omitted). The decision in Bounds imposed a n affirmative dut

y on states to assist

inmates in

gaining accessto the courts by s tating th at statesmust “shoulde r affir mative ob ligation s to assure all prisoners meaningful accessto the courts.” Id . 430 U.S. at 824, 97 S. Ct. at 1496. The Court fur ther expla ined that access must not only be meaning ful, but adequate and effective, providing a “reason ably

adequa te opportuni ty to present claimed violations of fundamentalconstitutional rights to the courts,” Id . 430 U.S. at 822, 97 S. Ct. at 1495, and noted some of the options of individual states in accomplishing this duty as provid ing acc ess to a law library , hiring lawy ers on a full- or part-time basis, and using law stude nts, para legals , or volunt

eers fr om the leg al commun

ity t o assist and advise p

risoner s. B. The Scope of the Right
The right to

meaning ful acc ess to the courts e nsures th at prison

officia ls m ay not erect unreaso nable

barriers to prevent prisoners from pursuing a ll types of leg al matters . Schrier v. Halford, 60 F.3d 13 09, 1313 ( 8th Cir. 199 5); John L. , 969 F.2d at 235. The scope of the affirmative duty enunciated

in Bounds , however, has been the subject of further litigati on which h as served to limit and define the types of litiga tion to which the duty applies. The beg inning point for

the anal ysi s has been the language

of Bounds itself.
In Bounds, t

he Supre me Court no

ted that p risoner s must be afforded meaningful accessin their criminal tri als, on the ir appeals as of right, and in their habea s and civilrights actions. In holding tha t the right to affirmativeassistanc e applie s in these contexts, the Supre

me Court e

xplained ‘ we are

concer ned in large part with original actions seeking new trials, release fr om confinement, or

vindication of fundamental civilrights. . . . Habeas corpus an d civil ri ghts actions are of ‘fundamental importance

. . . in our

constituti onal sche

me’ bec ause the

y di rectly protect our most valued rights.’
Schrier , 60 F.3d at 1311 (citations omitted).
In John L ., the Sixth Circuit held that it would be “an unwarranted extension of the right of access ” to require states to affirmatively assist prisoners on civil matters arising under state l aw. ” 969 F.2d at 235-36. Similarly, in Knop v. Johnson , 977 F.2d 996, 1009 (6th Cir. 1 992), the Sixth Circuit held that the right of access to the courts requires affirma

tive assis tance f

or inmate s “only

in12 In Knop , the court concluded that if ci tizens who wer e notinc arcer ated had no r igh t of acce ss to the p ublic purse for l egal as sis tance t o pursue or def end all types of leg al claims, inc arcer ation w ould not cre ate suc h a right. 977 F.2d at 1009.

13 The cour t stated tha t Bounds no more established such a right to legal ass istance or materi al than Estell e v. Ga mb le , 429 U .S. 97, 97 S. Ct. 285 (1976 ) establis hed a right to a pr ison ho spital. Lew is , 518 U.S . at 350 , 116 S. Ct. at 2179. 14 the preparation of legal paper s in cases involving constitutional rights and other civil rights actions related to their incarceration.” 12 See also R einholtz v. Campbell , 64 F. Supp. 2d 721, 730 (W.D. Tenn. 1999) (quot ing Knop v. Johnson , 977 F.2d at 1009).
The Un ited States Supreme Court adopted a similar interpretation of Bounds, limiting the types of actions in which any affirmative duty of

assistance exists, in Lewis v. Casey , 518 U.S. 343, 355, 1 16 S. Ct. 2 174, 2 182 (1 996), when s tati ng: The tools it [ Bounds ] requires to be provided are those that the inmates need in or der to attack their sentences, direc tly or co llaterally, and in orde r to challenge the conditions of

th ei r c on fi ne me nt . Im pa ir me nt of an y ot he r l it ig at in g c ap ac it y is simp ly one of the incident

al (and p erfec tly c onstitution al) consequences of conviction and incarceration.
The Court in

Lewis also found that Bounds did not cr eate an y independe

nt right of acce ss to legal materials. The Court specific ally

found tha

t Bounds did not establish a right to a law library or to legal assistance, 13 but that “ [t]he righ t that Bounds acknowledged was the ( alread

y w ellestablished) right to

accessto the cou

rts.” 518 U.S. at 350 , 116 S. Ct. at 2179 . Meaningful acc ess to the cour

ts is the tou chstone. It is th e capab ility

of bringing contemplated challeng es to sentences or condition s of conf

inement b efore t

he court s that is protected, not “thecapability of turning pages in a law library .” 518 U.S. at 356-57, 116 S. Ct. 2182.
Most signific antly , howeve

r, the Cou rt in Lewis emphasized that a claim based ondenial of ac ce ss to th e c ou rt s c ar ri es a r eq ui re me nt of ac tu al in ju ry. The requirement that an inmate a lleg ing a violation of Bounds must show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevent s a court of law from undertaking tasks ass ign ed t o t he p ol it ica l b ran che s. It is the role of the courts to provide relief to claimant s, in individ

ual or cl ass actions, who have suffered, or will imminently suffer, actual h arm; it is not the role of c ourts, butthat of the political branches, to shape the institutions of governm ent in such fashion as to comply wi th the laws and the Constitution. . . . But the distinction betweenthe two ro les would b e obliter ated if, to invoke interven tion of the

courts, no actual or imminent harm were needed, but mere ly the status of being subject to a governmental institution that was not organized or manag ed prope

rly . If – to take another example from prison life – a healthy inmate who had suffered no deprivation14 The Supreme Court gave as examples of actualinjur

y in fact as a showing that

a complaint prepared by the inmate was dismissed for f ailure t o satisf

y some technical re qu ire ment whic h he cou ld not have known bec ause of defici encies in t

he assi stance provided by the pri son or tha t “ he was so st

ymi ed by the inadequacies of t he law library that he w as una ble to even file a com plaint.” 5 18 U .S. at 35 1, 11 6 S. C t. at 218 0. 15 of needed medical treatment were able to c laim viola

tion of hisconstitutional right to medical care simply

on the ground tha

t th e prison medical facilities were inadeq uate , the essential distinction between judge and executive would have disappeared: it would ha ve beco me the fu

nction of th e courts to assure a

dequate medical c are in pr

isons.
Id . 518 U.S. at 349-50, 116 S. Ct. at 2179 (citations omitted).
The injury must relate to the rig ht of access to the courts. That is, the fa ct that a prison law library is without some materials does not establish an actual in jury . The inma

te must dem

onstrate that the alleged shortcomings hindered his ef forts to pursue a legal claim. 518 U.S. at 351, 116 S. Ct. at 2180. Essentially, the inmate must show th at a nonf rivolous legal cla

im relating to his sentence or the conditions of his confinement has been frustrated or is being impeded in or der to demonstr atean injury in fact resulting from denialof the right of access to courts. 518 U.S. at 353- 55, 116 S. Ct. at 2181-82. 14
C. No Deni al of Acc ess to Cour ts Applying these pr inciples t o Mr. Phife

r’s claim, we beg

in with his a sserti on th at he was denied, at least f

or a while , materia

ls neces sary

to prese nt his position to the Board for consideration in its deter

mination w

hether t o gran t him pa ro le . B ec au se th e B oa rd is an ad mi ni st ra ti ve ag en cy, not a court, the right

of acce ss to cour

ts is not im

plicated . Mr. Phife

r was g iven the o

pportunit y to present in writing any information he w anted the Board to consider. The Boa rd’s decision was based upon the nature of the offe nse for w hich he w as convicted and se ntenced and its disc

retion to determine that his release at that time would diminish the seriousness of that offense. Therefore, he cannot show that h

is lack of accessto materi als resulted in de nial of hisparole o

r in his ab ility

to present information to the Board. We also note that he acknowledges that he received the Board’s policies and instructions on how to present information. TheSixth Circuit has held that a prisoner’s inabilit yto presen t “lega

l” paper s to a par

ole boar d did not int

erfer e with his a

ccess to the cour ts, finding that parole release was discretionary with the board and t hat parole hearings werenonadversarialand did not require “legal” filings. Favors v. Koehler , 786 F.2d 1164 (6th Cir. 1986);
see also Reinh oltz , 64 F. Supp. at 730 (holding that according to Bounds and its progeny the right of accessto courtsfor prisoners is lim ited to filing cas es in cour t, not in filing grievances). As the Supreme Court made clear in Lewis , it is denial of the capabil ity t o bring c halleng es to the c ourts which is the touchstone of the right claimed by Mr. Phifer.
Alth ough Mr. Phifer’s pl eadin gs and briefs refer to his efforts to obtain reque sted legal materia ls durin g th e administ

rative a ppeals of the denia

l of his pa

role, a l iberal r eading of those15 No netheless, we cau ti on the State defend ants regarding their du ty to provide ac cess to th e court to Tennessee

prisoners or tho se co nvicted in Tennessee but housed in another state. In Ph illips v. M ills , 1999 U.S. App. LEXIS 20628 (6th Cir. Aug. 25, 1999) , the Si xth Circ uit gran ted r eli ef t o a prisoner who had missed a criti cal deadline to chall enge hi s Tenn ess ee co nvi cti on bec aus e he was hous ed i n Al abamaand had no acce ss to Tennessee legal materi als. He had been extradi ted f

rom Alabamafortr

ia l a nd re tu rn ed i mme di at el y t he re af te r t o f in is h s er vi ng an Al aba ma s en te nc e. He
was told b y Alab ama officials, “T he Sta te of A labam a is not obli gate d to sup ply you with lega l assistanc e in ord er to atta ck your conv ictions in the State of Tennessee. You will have to be returned to Tennessee before attacking your
con victions .” T hat retur n cam e afte r the exp iration o f his time to file a petition for po st conv iction re lief. The Sixth Circu it found that t

he cir cumstanc es est abli shed c ause forhis procedu ral defa ult in f ail ing to f

il e a t imel y petit ion. 1999 U.S. App. LEX IS 20628, at *11. The court

foun d it unnec essary t o dete rmin e whi ch st ate had t he duty t o provi de the prisoner with the re quired l egal mat erial s, and ci ted authority for each posi ti on. 1999 U. S. App. LEXIS 20628, at *12 n.4. We a re not ca lled up on to make that de cision e ither, bu t note tha t M r. Phife r is in Flor ida un der the Interstate (con tinued ...) 16 papers indicate

he also w anted the

materia ls necessa ry to challenge an anticipated Boa rd denial of parole in a separate civil action in court. Lewis teache s that, in o rder to s ave his acc ess to cou rts claim from dismissal, Mr. Phifer must have alleged that he suffered

actual injury with re gard to that litigation; that

his claim wa s nonfrivolous and was within the scope of the right to affirmative assistance; and that he was hindered in presenting his claim to the courts.
Mr. Phifer

cannot show that he was denied access to courts or any injury resulting f

rom such denial. His petitio n in the tri al court was not los t

or dismissed for failure to comply with a technical require ment; he does not claim that he missed a st atute of limitationsor was un able to pr epare o r file a complaint. Both the trial court and this court have given full consider ation to the issues raisedby Mr. Phifer. He has not been denied access to the c ourts. “No actual injury occurs without a showing that such a cl aim [chall enging the convi ction or c onditions o f confinement] ‘ha s b een lost or rejected, or that the presentation of any such cla im is currently be

ing prevented.’” Reinholtz , 64 F. Supp. at 730 (quot ing Lewis , 518 U.S. at 356, 116 S. Ct. at 2182). Mr Phifer has not alleged sufficient facts to s how that th

e alleg ed unava

ilability of the ma

terials h e reque sted hinde

red his effortsto pursue a legal claim. Sanders v. Campbell , No. 02A01-9810-CV-00299, 1999 Tenn. App. LEXIS 749, at *10 (Te

nn. Ct. App . Oct. 30, 1999) (no Tenn. R. A

pp. P. 11 ap

plication fil ed ) (quot ing Lewis , 518 U.S. at 351, 116 S. Ct. at 2180 (1996)). Further, as evidenced by

Mr. Phifer’s brief, heeventua lly r eceive d portionsof the ma terials requested, and his filings in the tria l court a nd in this c ourt demo nstrate a n ability to clear ly s tate his complaint an d a basic kno wledge of the law of due proce ss, equal protection, and ex post fa cto application of laws. T

herefo re, eve n if acc ess to leg al mater

ials wer e a protected rig

ht, we canfind no indication that his case was hindered by the alleged unavail ability of some materials. See State of Tenness ee v. Go odwin , 909 S.W.2d 35, 43 (Tenn. Crim. App. 1995).
Fi na ll y, we not e that a court chall enge to a Board decision to deny parole is not an attack on the sentenc e or a ch alleng e to the c onditions o f confinement. B ecause a prisone r has no r ight to e arly releas e on parole prior to the expiration of his senten ce, parol board decisions do not implicate a fundamental right. Thus, Mr. Phifer’s challeng e to the Board’s decision to deny him parole

is not within the scope of the affirmat i ve duty to provide meaningful access to the courts under Lewis. 1515 (.. .cont inu ed) Corrections Compact a s a Tenne ssee pris oner a nd, unlike t he inmate in Phill ips , is confine d there solely b ecau se of his Te nnesse e con viction. 17 V. Conclusion
The decision to grant parole is a discretionary matter that rests with the Board. Doyle v. Hampton , 207 Tenn. 399, 401, 340 S.W. 2d 891, 892 (1960). Wh

ether to grant p arole is a

decision for the Board, not the courts. Absent a failure of the Board to act in a lawful an d constitu tional manner, courts can grant no re lief from denial of parole.
For the foregoing reasons, we affirm the dismissal of Mr. Phifer’ s petition f or failur e to state a claim upon whic h relie f may be g ranted. Costs of this cause are taxed to Mr. Phifer, for which ex ec ut io n m ay i ss ue if

ne ce ss ar y.

____________________________________ PATRICIA J. COTTREL L, JUDGE