# FILED
October 1, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk JOHN WAYNE SLATE, SR., ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1921-I ) VS. ) ) STATE OF TEN

NESSEE BOARD O F ) PAROLES, ET AL., ) ) Appeal No. Defendant/Appellee. ) 01-A-01-9704-CH-00155

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM TH

E CHANCER

Y COURT OF

DAVIDSON

COUNTY AT NASHVILL E, TENNESSEE
HONORABLE IR

VIN H. KI

LCREASE, CH

ANCELLOR

JOHN KNOX WALKUP Attorney Gene

ral and Reporter
TERESA S. THOMAS #12788 Counsel fo

r the State 404 James Robertson Parkway Suite 2000 Nashville, TN 37243 ATTORNEYS FOR DEFENDANTS/APPELL EES John Wayne Slate #123012 N.E.C.C. P.O. Box 5000 Mountain City, TN 37683-5000 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
AFFIRMED AND REMAND ED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCURS: BEN H. CANTRELL , JUDGE WALTER W. BUSSART, JUDGE-2-

JOHN WAYNE SLATE, SR., ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1921-I ) VS. ) ) STATE OF TEN

NESSEE BOARD O F ) PAROLES, ET AL., ) ) Appeal No. Defendant/Appellee. ) 01-A-01-9704-CH-00155



## O P I N I O N
The captioned plaintiff, a prisoner in custody of the Department of Correction awaiting execution has appealed from a decision of the Board of Paroles deny ing his request for parole. His death sentence has been stay ed by a fede

ra l court which ordered a retrial of the issue of punishment. This retrial has not yet take n place.
The present judicial proceeding wa s begun by a document entitled: Petition for Writ of

Certiorari to Review the Decision of the State of TennesseeParole Board’s Decision - Under 27- 9-101--27-9-102 --27-9-114----

---- and Production of Records Under Public Records Act T.C.A. 10-7-503---T.C.A. 10-7-505
The nine- page document is a melange of disordered and disconnected statements which render orderly analy sis diffic

ult.

On behalf of the mu

ltiple re spondents , the State Attorney Ge neral and Reporter filed a motion to dismiss the petition for failure to state a claim for which relief can be g ranted.
The Trial Judge ordered:

The petitioner, an inmate in the lawful custody of the Department

of Corre ction, ha s filed a p etiti on for w rit of certiorari seeking

revie w of the decision by the B oard of Paroles to deny him parole. The petitioner as s erts that the Board violated his constit

utional ri ghts and

acted a rbitrar ily capriciously, a

nd deliberately in de

nying him parole
.-3- The responde

nts have f

iled a moti on to dismi ss t he complaint pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure onthe grounds that the petition was not filed within the jurisd

ictional t i me li mit set forth in Tenn. Code Ann. § 27-9-102 and that the petition fails to state a claim upon which relief can be gra nted. Tenn. Code Ann. § 27-9-102 providesthat a

petition for a writ of certiorari must befiled within 60 days from the entry of the order

or jud gment from which appeal is taken. Failure to fil e within this time limit results in the Board’s decision becoming

final, wh

ic h deprives this Court of jurisdiction. Whe eler v. Ci ty of Me mphis , 685 S.W.2d 4,6 (Tenn. App. 1984). On April 2, 19 9 6, the petitioner appeared before a hearing of

ficer for parole release consideration. The petitioner was deni e d pa role on that date based upon the seriousness of

the petiti oner’s o ffense

and his lik

elihood toreoffend
. T he time within which the petition for writ of certiorari could have been filed expired on June 2, 1996. This petition was not fi led until June 24, 1996. Thus, this Court is withoutjurisdiction to review the petition. For the foregoing reasons , the resp ondent’smotion to dis miss is gra nted. The Courtfinds it unn

ecessa ry to addre ss other is su e s in this matter. Petitioner is assessed state litigation taxes. All other costs are waived. IT I S SO ORDERED.
T.C.A. § 27-9-102 requires that petitions for judicial review of administrative orders be filed within 60 days after the rendition of a

final administrative decision. In the present case, the application for review was filed in the Trial Court on June 24, 1996.

The petition for judicial review does not state with any degree of certainty

the date of the final action of

the Parole Board which is to be reviewed. The following are ty

pical excerpts from the petition for judicial review:

On April2, 1996 the Board of Paroles Hearing Officer conducted a parole release he aring on y ou petitioner,

- - - - 3) That

th e P arole Board’s Hearing Officer accepted the facts of the offe nce (sic) as “truth”.

- - - - On the 6th

day of May

1996. Petitioner recieved (sic) disposition of his appeal wherin (sic) the a ppeal was summarily

denied
. Reasons of denial was as followes (sic); seriousness of the offence (sic) “hig h risk” H

- R -on actions following initial offence (sic) “attempted esc ape” expired”-4- T hat the appellate panel of the Board of Par ol e s summarily

denied app eal and did not review said appeal basedon the fac ts se t out by petitioner in his request for appeal. And thusely ( sic) tre ating pe titio ner’s appeal ar bi tr ar il y an d c ap ri ci ou sl y. Attache d to this pe

tition are the following exhibits; A. “Request for

appeal hearing filed by

petitioner dated May 3, 1996 and May

6th 1996. B. “Appeal disposition dated ---- May 2, 1996. C. “Letter

written to T.P.O. and TN. Parol e Board dated 4/1/96. D. Newspaper press releases da ted -- 8/28/95. E. Second request for appeal “addition” filed 5/7/96. F. Summons and motion - 90-day a ppeal granted

on May 23, 1996 “then denied again on June 12th 1996.
It is s een that

the petiti on mention s at least one action of the administrative agency which occurred on May

23, 1996, within 60 days prior to the filing of the petition for

judicial review on June 24, 1996. We find the petition was timely filed; however , the conflicting and confusing allegations of

the complaint do not state grounds for finding that the Boa rd acted arbitra rily or capriciously. I

t thus does not state a claim for which the relief of certiorari should be granted.
The complaint also attempts to state a claim for relief in respect to discover y in a separate action in the following verbiag e:

Relief requested

s tatement for which relief can be g ranted
. Wherefore, premises considered, petitioner pray s; court issue an order for all st

ate ag ency s (sic) in

this case bring f orth record s’ (for review). 1. That

a writ of certiorari for this first application, be issu ed from Davison (sic) County Chanc ery Court to the Tennessee B oard o f Paroles, directing said Board and it’s officia ls to certif

y to this cour

t the entir

e recor ds of the procee dings of t hi s case, including but not limited to, the hearing summary

reportsof the notice of board action parole rel ea se hearing conducted on April 2, 1996. An (sic) statement by the I .P.O. the audio cassette tapes made of the-5- hearing stated above, the reports of the first level appea l submitted to the Board

of Paroles by petitioner, a nd any and all other pe

rtinent in formatio n including state

ments by f

amily members stating facts by trial transcripts and others that comprises the of

ficial r ecord of this matter. Facts of the offence(s ic) re port from Sevier County Prosecutor Al Smutzer Jr.) (sic). (Records from the D.O.C.).

- - - - 5. That

the Court return this matter to the initial panel of the Board of Paroles for a full “and fa ir” hea

ring wit h petitioner supplyed (sic) a n (sic) copy

of the fa cts of offence (sic) and th at petit

ioner be afforded a chanc e to present trial transcr ipts as stated by fa

mily members to be true “w hich are in “ fact ” false

by r ecord a nd/or in the alter native grant petitioner immediate parole.

- - - - Petitioner states here for the r

ecord th at he wa s denied p arole on April 2, 19 96. --Pet

iti oner is st

ill awaiting notic e of his appeal it is May

29th 199 6-and plantiff (sic) still has not recieved (sic) hisrequested tape of the hearing, nor an answer to his appe al.
Attached to the pet

ition for j udicial r

eview a re unaut hentica ted copie s of documen ts inclu ding t he fol lowi ng:

“Petition for a Declaratory Order to the Department of Corrections” “L egal Department” conta inin g the fo llow ing:

Petiti o ner submitts (sic) that this department for the Depa rt ment of Corrections should serve petitioner and the Chancery Co ur t a t D av is on (s ic ) C ou nt y T enne ssee with copies of the record s, files, all including but not limited to all files from the Sev ier County prosecu tor, and Se

vier Coun ty courts. (Parole B oard) D ept. Corr ections. 2. That

petitioner wishes to give each and ever y department

of the State of Tennessee, who is in violation of petitioner’s constitutional rights a chance to “:pass”“ (sic) on these issu es in t he fol lowi ng; A. The Department of Correction for the S tate of Tennessee. (All Dept.) B. The Tenn

essee B oard of Pa

roles (A ll files) C. The files of the Sevier County prosecutor. 3. Petitioner

submitts (sic) that the undisclosed “facts of the offence” (sic) are “is completely “fa lse” and untrue by the “records of proof

in this c a se.” Now that petitioner has alleged this that a

ls o makes all records of the department of corrections false.-6- Wher efore; the petiti oner re spectfully r equests t he D.O.C. supply all copies to petitioner and court without applying no statute. On August 19, 1996, petitioner filed in the Trial Court a “Motion to Compel” seeking to compel a

nswers to petiti oner’s request for discovery of evidence to be presented by the prosecution at the re-sentencing hea ring which has not occurred.

On August 29, 1996, petitioner filed with the Trial Court unauthenticated copies of docum ents i nclud ing th e foll owing:

An uns igned “ E-Mai l” add ressed to pet itio ner and stati ng: Wanda Th e above inmate was declined for parole in Apri l. H e subseque ntly filed an appeal on May

23, 19 9 6. He received (sic) a let ter stating he had an additional 90 day s to provide any further evi dence he wished on June 12, 1996. He received a letter stating he did not meet criteria for a p peal. Can you plea se check into this and advise w hich of these letters is correct. I have

personally see

n both and I believe they are both legit. Please advise as soon as possible. Thanks Kim
The failure to state a claim for which relief ca n be grant ed i s determined from an examination of the complaint alone. Wolcotts Financial Service s, Inc. v. McReynolds , Tenn. App. 1990, 807 S.W.2d 708.

The alleged right of the

petitioner to discover in this proceeding evidence whic h may be relevant to an entirely diffe

rent proce eding ( th e re-se ntencing trial), i s not rec ognized b y th is Court. The Tria

l Court cor

rectly dismissed that part

of the co mplaint wh

ich asse rted such a righ

t.-7- The judgmen

t of the Tr ial Court isaffirmed. Costs of this appeal are assessed against the plaintiff . The ca use is re manded to

the Tria l Court for

necessa ry further procee dings.



### AFFIRMED A ND REMAND ED

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCURS:

_______________________________ BEN H. CANTRELL , JUDGE

_______________________________ WALTER W. BUSSART, JUDGE