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

arch 14, 2001 LARRY W. HOPKINS v. TENNESSEE BOARD OF PAROLES AND PROBATION Appeal from the Chancery Court for Davidson County No. 00-281-II Ellen Hobbs Lyle, Chancellor

No. M2000-01956-COA-R3-CV

This appeal involves a prisoner’s efforts to be paroled from his sentence for aggravated ra pe. After the Tennessee Boar

d of Paroles decli

ned for the sixth tim

e to parole him, the prisoner filed a petition for common-law writ of

certiorari in the Chancery Court challenging the Board’s latest decision and the procedure used

to reach it. The tr

ial court dismissed

the petition for fa

ilure to state a claim upon which relief

could be granted, and the prisoner has appealed. We affirm the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W ILLIAM C. K OCH , J R
. , J., delivered the opinion of the court, in which WILLIAM B. C AIN and P ATRICIA J. C OTTRELL , JJ. , joined. Larry W. Hopkins, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Ar thur Crownover, I

I, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Board of Paroles and Probation. OPINION Larry W. Hopkins was convicted of aggravated rape in Shelby County and is currently incarcerated

at the Hardeman County Correctional Facility in Whiteville. His sentence will expire in 2015. During his almost twenty years of incarceration, Mr. Hopkins has been considered for parole on numerous occa

sions, but the Tennessee Board of Paroles (“Boa

rd”) has decline

d to parole him each time. After the Board declined to parole him in March 1998, Mr. Hopki ns filed a petition for common-law writ of certiora ri inthe Chancery Court for Davidson County challenging the Board’s1 The Board denied Mr. Hopki ns’ request

for an appeal

on December 9, 1999. -2- decision on the ground that it was based on a misi

n terpre tation of an August 1997 psychological examination. In March1999, the Board agreed to provide Mr. Hopkins with another hearing, and on April 19, 1999, the trial court granted the Depa

rtment’s motion to

dismiss Mr. Hopkins’s petition because it was mo

ot. Mr. Hopkins participated in another parole hearing on May 27, 1999. The hearing was conducted

by two members of the Board, one of whom had conducted the March 1998 hearing. The Board formally notifiedMr. Hopkins on June 9, 1999, that it had a

gain declined to pa

rolehim. In its formal notice, the Board stated that its decision was ba

sed on the seriousn

ess of Mr. Hopkins’s offense and on its conclusion that paroling Mr. Hopkins “would have a substantially adverse effect on institutional discipline.” The Board also informed Mr. Hopkins that he would not be considered for parole again until 2005.
A fter exhausting his appellate remedies before the full Board, 1 Mr. Hopkins filed a noth e r petition for common-law w rit of certiorar

i in the Chancery Court of Davidson County. Mr. Hopkins took issue in this petition with the Board’s procedures, as well as the substance of its decision, and allegedth at the B oard was discriminating against him because it had paroled prisoners who had committed more serious offenses and who had worse institutional records . The Boa rd responded witha Tenn. R. Civ. P. 12.02(6) motion to dismiss the petition on the ground that the petition failed to state a claim upon which relief cou ld be granted. O n June 30, 2000, the trial court entered an order dismissing Mr

. Hopkins’s petition . Thereafter, Mr. Hopkins filed a

timely notice of ap

peal. I. Prisoners do not have an abso lute right to be rel

e ased 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. Ct. App. 1999) ; Tarpley v. Traughber , 94 4 S.W.2d 394, 39 5 (Tenn. Ct. App. 1996). Thus, parole is a privilege and not a right. Tenn. Code Ann. §§ 40-28-117(a) , 40-35-503(b) ( 1997); Arnold v. Tennessee Bd. of Paroles , 956 S.W.2d 478, 482 (Tenn. 1997). Whether a prisoner should be granted parole is a decision entrusted to the Board, notthe courts. State ex. rel. Iv ey v. Meadows , 216 Tenn. 678, 685, 393 S.W.2d 744, 7 47 (1 965); Rucker v. State , 556 S.W.2d 774, 776 (Tenn. Crim. App. 1977). Persons dissatisfie

d with the Board’s decisions may obtain judicial review using a petition for common-law writ of certiorari. This petition limits the scope of revi ew to a determi nation of whether the Board excee

ded its j urisdictio n or acted illegally, fraudulently, or arbitrarily. Turner v. Tennessee Bd. of Paroles , 993 S.W.2d 78, 80 (Tenn . Ct. App. 1999); South v. Tennessee Bd. of Paroles , 946 S.W.2d 310, 311 ( Tenn. Ct. App. 1996) ; Powell v. Parole Eligibility

Review Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). The petition does not empower the courts to

inquire into the intrinsic

correctness of the Board’s decision. Robinson v. Traughber , 13 S.W.3d at 364; Turner2 This provision is currently codified as amended at Tenn. Cod e Ann. § 40-28-10 5(d) (11) (Supp. 2000). -3- v. Tennessee Bd. of Paroles , 993 S.W.2d at 80. Thus, the courts will not use the common-law writ to grant relief whe

n the Board’s dec

ision was arrived

at ina constitutional and lawful manner. Tenn. Code Ann. § 40-28-115(c) (1997); Arnold v. Tennessee Bd. of Paroles , 956 S.W.2d at 480; Powell v. Parole Eligibility Review Bd. , 879 S.W.2d at 873. II.
M r. Ho pkins has five complaints regarding the Board’s hearing procedure and decision. They are the typical complaints made by disappointed prisoners after they are not paroled, and, like the trial court,

we have enco untered them before. First, Mr. Hopkins asserts that the Board’s procedure was flawed because the Board member who preside d at the March 1998 hearing participated in the May 27, 1999 hearing. He claims that the Board member’s participation in the May 1999 hearing violated Ten n. Code A nn. § 40-28-105(d)(6) (1999) 2 relating to the ap pellate review of decisions to den y, revoke, or re

scind parole. Thi

s statute is i

napplicable

in this case, however, because the May 1999 hearing was notan appellate review hearing by the Board, but rather an initial hearing that took the place of the March 1998 hearing.
Mr. H o pkins also asserts that one of the Board members who conducted the May 1999 hearing was intimidating, hostile, and rude to one of Mr. Hopk ins’s guests. Specifically, Mr. Hopkins asserts that the Board member’s qu estion, “Now do you think you had a fair hearing?” reflects that the questione

r “had it in for [him] fr om the beginning of the hearing to the end.” Demeanor

is a subjective thing that

cannot be meaningfully reviewed in the absence of a transcript of the proceedings. While hostility could theoret ically r ise to the level of unconstitutional bias, a decision to deny parole will not be undermined because a Board member was u nsympathetic, hostile, or even rude, as long as the Board’s decision has factual and legal support. The Board’s decision has just such supp ort in t his case, and ac cordingly we will in

quire no further

into its intrinsic correctness. Mr. Hopkins maintains that the Boar d acted ar bitrarily and fra

udulently by declin

ing to parole him becau se he has an outstanding institutional record and because the Board has paroled other prisoners with more serious criminal and institutional records. Prisoners are n ot entitled to parole simply because they have a good institutional record. Graham v. State , 202 Tenn. at 426, 304 S.W.2d at 623; Robinso n v. Traughber , 13 S.W.3d at 364. The record before us belies Mr. Hopkins’s assertion that his i nstitutional recor

d is outstanding. He

admits to four minor disciplinary infractions during the last ten y ears, and he had a positive drug scr

een in January 19

99. Parole decisions are fact-inten

sive and focus on t

he individual p

risoner seek ing parole. The Board determinedthat paro l ing Mr. Hopkins woul d substantially aff

ect institutional dis

cipline. We will inquire no further into the intrinsic correctness of this decision.-4-

Mr. Hopkins argues that the Board acted impe rmissibly by denying

him parole becau

se of the seriousness of his

offense and bec

ause of the effe

ct that granting him

p ar ole might have on institutional discipline. These reasons for denying parole are based on Tenn. Code Ann. § 40-35- 503(b)(2), (3) (1997). The c ourts have held re

peatedly that the Board may cons

ider the seriousn

ess of a prisoner’s offense when making parole decisions. Arnold v. Tennessee Bd. of Paro les , 956 S.W.2d at 482; Robinson v. Tr aughber , 13 S.W.3d at 363; Boyd v. Tennessee Bd. of Paroles , No. M1998-00914-COA-R3-CV, 2001 WL 360702, at *2 (Tenn. Ct. App. Apr. 12, 2001) (No Tenn. R. App. P. 11 application fi

led). In addition,

we have upheld de

cisions denying pa

role based on the Board’s concern regarding the adverse effect parole would have on institutional discipline. Perry v. Tennessee Bd. of Paroles , No. M1998-01018-COA-R3-CV, 2001 WL 46990, at * 1 (Tenn. Ct

. App. Jan. 22, 20 01 ) (No Tenn. R. App. P. 11 application filed). Accordingly, the basis for the Board’s decision to deny Mr . Hopkins parole do

es not refle

ct ar bitrary or illega

l action on behalf of the Board. Finally, Mr. Hopkins argues that the Board erred by failing to provide him with an adequate statement of the evidence that the Board relied on in making its decision. This argument fails, like the others, beca

use the Board gave two adequate, legally-supported justifications for denying Mr. Hopkins parole, namely the severity of his offense and the risk of ad verse effects on institutional discipline. No more definite statement was required. III.
We affirm the dismissal of Mr. Hopkins’s petition and remand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal to Larry W. Hopkins for which execution, if necessary, may issue.



### _________________________ WILLIA M C. KOCH, JR., JUDGE