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

Briefs M arch 13, 2001
RICKEY STEPHA N COTTEN v. TENNESSEE BOARD OF PAROLES

Appeal from the Circuit Court for Davidson County No. 01C-680 Walter C. Kurtz, Judge

No. M2001-00875-COA-R3-CV - Filed July 12, 2002

Petitioner was arr ested in Fl orida fo

r grand t heft aut o while on parole under a sentence in Tennessee. After beginning his sentence on the Florida conviction in a Flori da priso n, the Petitioner filed a “reque st for leave to waive revocation hear ing, admission to violation of parole and request to have parole hearing in absentia and affidavit” with the Board of Paroles of Tennessee. The Board did not respond, so Petitione

r file d a writ of ma

ndamus wit

h the Circuit Court f

or David son County t

o compel the Board to render a decision regarding his par ole revo cati on. The trial court denied the writ and dismissed the petition because mandamus was not the appropriate remedy and the Petitioner was not in custody of

the State of Tennessee for the purposes of par ole revocation. We agree and affirm the decision of the trial court.

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

Affirmed and Remanded
P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILL IAM C. K OCH , J R ., J., joined. Rickey S. Cotten, Lowell, Florida, Pro Se.
Paul G. Summers , Attorney General and Reporter; Michael E. Moore, Solicitor Gene ral; Quisha A. Light, Ass istant Atto

rney Ge neral, f or the ap pellee, Tenness ee Boar

d of Proba

tion and Pa

roles.
OPINION
This appeal arose after

the Circu it Court for Davidson County dismissed a petition filed by Rickey S. Cotten for issuance of a writ of mandamus against the Tennessee Boa rd of Paroles (“Board”). The petition requested that the court order the Board to grant Mr. Cotten’s demand for waiver of a par ole viola ti on hearing , and that

the Board

sentenc e him in absenti

a for a pending parole violation. The trial court dismissed the petition sua sponte , becau se a writ of mandamus was notthe appropriate remedy when the Board did not have custody of Mr. Cotten and, therefore, was under no duty to provide him with a parole revocation hearing.1 One of the l ette rs was sent prior to t he “reque st for l eave t o waive r evocat ion heari ng, admis sion to vi olation of paro le and request t o have parole heari ng in absenti a and affi davit. ” The two remai ning l ett ers were se nt s ubsequent to this re que st. -2- I. Facts
Mr. Cotten is an inmate currently in the custody of the Florida Department of Correction. In 1987, Mr. Cotten wa s found guilty and sentenced on burglary charges in both Davidson and Sumner County, Tennessee, receiving a sentence in excess o f 23 year s. He wasreleas ed on par ole by the State

of Tenne ssee in October of 1997, re maining under the s upervisi on of the Northeas t Correctional Center.
On January 14, 1998, while on parole from his Tennessee sente nce, Mr. Cotten was arrested for grand theft auto in Orlando, Florida. The Ten nessee Board of Paroles issued a warrant on January 20, 1998, b ased on in formatio n Mr. Cotte

n had viola

ted his pa role and declar ing him a fugitive from justice. On March 23, 1998, a Florida court issu ed an ord

er to hold and deliver Mr. Cotten on the char

ge of par ole revo cation. Because

Mr. Cotten

was then in custody

in a Florid a jail pending d isposition o f the aut

o theft charge, h

e was not then deli vered to

Tenness ee autho

rities.
On May 28, 19 98, Mr. Cot te n entered a pl ea of nolo contendere to the gra nd theft a uto charge. In July of 1998, Mr. Cotten was sentenced on the grand theft auto cha rge to seven and a

half (7 1/2) years in the Florida Departm ent of Cor rection with 135 da

ys of jail c

redit. The order issued by the Floridacourt specified that thesentence was to run concurrently with any sentenc e Mr. Cotten received as a result of the pending parole revocation case in Tennessee.
In 1999, Mr. Cotten sought a transfer to a Tennessee prison, but was denied tha t transfer due to overcrowding in Tennessee jails and a statewid e free ze on the

transfe r of out- of-state

prisoner s. Thereafter, Mr. Cotten

filed a “ request for leave to waive revocation hear ing, admission to violation of parole and request to have parole hearing in absentia a nd affidavit” with the Board. His reque st to the Board contained the following: (1) a statement of the facts leading up to the issuance of the parole revocation warrant from Tennessee ; (2) allegations that he possessed a “bona fide right and genuine interest

in a timely

disposition of the pending parole violation charges according to Te nn. Code Ann. § 40-28-122”; (3) a request that the Board allow him to waive the right to be present at the revocation hearing and sentencing; and (4) a proposal that the Board allow any sentence he received as a result of his parole rev ocation to run concurrently with his Florida sentence. Mr. Cotten also attached an

affida vit which m

erely r eiterat ed the fa ctual all egations

encompa ssed in his request to the Board. He received no response to this request eve n after sending three letters 1 to the Director of the Board.
Mr

. Cotten then filed a petition for writ of mandamus, asking the court to order the B oar d to grant his request for waiver of a parole violation h eari ng and se ntence h im in absenti

a . Specifically, his petition alleges that Tenn. Code Ann. § 40-28-122(b) and (c) and the D ue Proce ss Clause of the Fourteenth Amendment entitle him to a timely response and/or dispo sition of his2 The tri al c ourt c it ed Tenn. Code Ann. § 40-28- 112 in i ts Final Order whic h addres ses “compensat ion of the

board and em ployees,” how ever, this was obviously a typograph ical error. In readi ng the f ull text of t he Order of

the tri al court , we have no doubt that t he court int ended t o cit e Tenn. Code Ann. § 40-28- 122 addres sing “hea ring s on p arole viola tions” as the sta tute o n w hich it based its findin g. -3- request “by virtue of the lawful execution of the parole violation warrant on March 19, 1998”; that he has waited more than a reasonable amount of t im e for the Board to act on his request; and that he has diligently sought resolution of the matter with the Board.
The trial cou

rt dismiss ed the case citing Tenn. Code Ann. § 40-28-112 2 and Moody v. Daggett , 429 U.S. 7 8, 97 S. Ct. 27 4 (1976), stating tha t: Moody held that

there is no constitu

tional duty

to provide an adversary parole hear ing until the individual is taken into custody as a parole violator. The defendant here has no legal duty to provide the petitioner with a par

ole revo cation he aring at

this time. It is notunder that

duty until p etitioner

is return ed to Ten nessee. This case

is clear ly notappropriate for mandamus. See, e.g., Speakman v. State of Oh io , 520 N.E.2d 600 (Ohio App. 1987). The Court is aware that the petitioner cont ends that he was ‘served’ with a parole violation warrant in Florida. While the Court doubts the accuracyof that allegation, the Court is aware that the a llegation s in the pe

tition must be assumed as true. There is no doubt, however, that the petitioner is not within the custodial control of

the S tate of Tennessee. He is not, therefore “in custody” for purposes of the parole violation warrant. Mr. Cotten filed a timely notice of appeal with this court, and has presented his issues in a well-organized

and well-written brief. Resolution of the issues he raises depends upon the duty of the Board to a parolee in Mr. Cotten’s situation.
II. Writ of Mandamus
The writ of mandamus is an extraordinary remedy. Peerless Constr. Co. v. Bass , 158 Tenn. 518, 522, 14 S.W.2d 732,733 (1929); S tate v. Thompson , 118 Tenn. 571, 102 S.W. 349 (1907); State ex rel. Witcher v. Bilbrey , 878 S.W.2d 567, 570 (Tenn. Ct. App. 1994 ). Its pur pose is to enforcea clearly established legal right, State v. Irick , 906 S.W.2 d 440, 442 (Tenn. 199 5), or to compel a public official to perform his or her legal duties. Stat e ex rel. Ledbetter v. Duncan , 702 S.W.2d 163, 165 (Tenn. 1985). Therefore, to obtain the writ of mandamus, the petitioner must show a specific and

complete right whic

h is to be enforced. Winters v . Burfurd , 46 Tenn. (6 Cold.) 328, 330-31(1869); Hayes v. Civil Serv. Comm’n of Metro. Gov’t , 907 S.W.2d 826, 829 (Tenn. Ct. App. 1995).
Mandamus cannot be used to control a public official’s judgment or discretion. State ex rel. Harned v. Meador , 153 Tenn. 634, 640, 284 S.W. 890, 892 (1926); Hacket t v. Smith C

ounty , 807 S.W.2d 695, 698 (Tenn. Ct. App. 1990). It serves only to control ministerial acts. Waters v . State ,3 Ind ictm ent, a findin g of pro bab le cau se, or c onv iction in an y c ou rt of co mpe t en t j ur i s di ct

i on f or an y c ri me comm itted after parole constit utes probable cause, and “no further proof shall be necessary at the preliminary hear ing.” Ten n. Co de A nn. § 40- 28- 121 (c). -4- 583 S.W.2d 756 , 763 (Te nn. 1991) . Thus, the

writ c annot be used to compel a public of ficial to perform a discretionary act or to perform a discretionary act in a pa rticular way. State ex rel. Byram
v. City of Brentwood , 833 S.W.2d 500, 505 (Tenn. Ct. App. 1991). A writ of mandamus is proper only when nothing is left to the public official’s judgment. Tusant v. Ci ty of Memphis , 56 S.W.3d 10, 18 (Tenn. Ct. App. 2001).
Mr. Cotten ar

gues that he has a c onstitution ally prote cted right to a revocation

hearing within a reaso nable

time of the service of a parole revoc ation warrant and that Tenn. Code Ann. § 40-28- 122 requires the Board to hold such a hearing within a reasona ble time.
III. When Must He aring Be Held
The Board is “charged with de termining whether violation o f parole

condition s exists in spec ific cases and of deciding the action to be taken in ref erence to such violation.” Tenn. Code Ann. § 40-28-118(c). Revo catio n is initiated by the issuance of a warrant for “the re taking” of a parolee if the dire ctor of th

e Board d etermine s that par

ole may ha

ve been violated in an important respec t. Tenn. Code Ann. § 40-28-120. The warrant is executed “by ta king the prisoner and returning the prisoner to a prison, workhouse or jail to be held to awa it the action of the board.” Tenn. Code Ann. § 40-28-121(a).
After those ste ps, parol e revocationin Tenne ssee is ge nerally a two-sta ge proce ss. The fi

rst stage is a preliminary hearing to determine whether there is probable cause to believe that the parolee has violated

the condi tions of hisparole

in an impor

tant resp ect. 3 The requirement of a preliminary hearing is trigger

ed by the a

rrest of a parolee pursua nt to exec ution of a parole violation w arrant

. Tenn. Code Ann. § 40-28-121(c).
The second st

age is a final hearing to determine whether revoca tion is warranted. The procedurefor hea

rings on pa

roleviolations is set forth in Tenn. Code Ann. § 40-28-122, which, in pertine nt part, s tates: (b) After being notified that a [parole revoca tion] warrant has been exe cuted and a probable cause hearing has been held or wa ived, the board shall, as soon as practicable, h old a par ole revo cation he aring and conside r the ca se of such parole violator, who sh all be giv en an opportunity to appear personally before a board member or hearing officer and

explain t he char ges made . A proba

ble cause hearing shallnot be necessary if a parole revoc ation hearing is held within fourteen (14) days of the service of the warrant.

. . . .4 Und er the provisions of Tenn. Co de An n. § 40-28-1 23(a):

If any p risoner w hile on p arole from a state prison, jail or wo rkho use com mits a c ri me un der th e l aws of ano ther sta te go vern me nt or c oun try w hich , if committe d withi n thi s st ate, would be a f elony, and is convic ted of

such crime, t

he dir ector

of probat ion and parole shal l arr ange for the r eturn of s uch
a priso ner th rou gh th e term s of the interstate comp act. The board shal l re quire that the pr isone r se rve the porti on remaining of the maximum term of sentence or such part as the board may deter mine. -5- (d) The b oard sha

ll, within a

reasona ble time, a

ct upon suc

h charge s, and may, if it sees fit, require such prisoner to serve out in prison the balance of the maximum term fo r which th e prisoner was originally sentenced, calculate d from the date of delinquency or such part thereof, as it may determine, or impose such punishmentas it deems proper, subject to the provisions of § 40-28-123. 4
The trial court cited Moody v. Daggett , 429 U.S. 78, 89, 97 S. Ct. 274, 280 (1976), for the proposition that there is no “constitutional duty to provide an adve rsary par ole hearing until the individual is taken into custody as a parole violator.” In Moody , the issue before the Supreme Court was “whether a federal par olee imprisoned for a crime committed while on parole i s constitut

ionally entitled to a prompt parole revocation hearing when a parole violator warrant

is issued and lodged withthe institution of his confinement but not served on him.” Id . 429 U.S. at 79, 97 S. Ct. at 275. Moody was convicted

in 1962 for rape on an Indian reservation and se ntenced to a

ten (10) year prison sentence. He was paroled in1966 and a few years later pled guilty to killing two (2) people on an Indi a n reservation, including one count of manslaughter and one count of seconddegree murder. Moody received concurrent ten (10) year sentences on the new cr imes. The United St ates Board of Paroles issued, but did not execute a parole violator war rant. It was lodge d as a detainer. Moody then petitioned the Board for immediate action so that he could serve the time he would receive on

his parole violation concurrently with the murder and mansl aughter

convicti ons. The Board replied, stating that it would execute the parole violation w arrant upon Moody ’s relea se from the second conviction. Moody then filed a habeas corpus action seeking dismissal of the paro le violation warrant because he wasdenied a prompt hearing. The District Court dismissed the petition
sua sponte . The Supreme Court held that Moody was not deprived of any constitutionally protected rights by the mere issuance of a parole violator wa rrant and that the Board ha d no consti

tutional du

ty to provide Moody with a parole hearing until he was taken into custody as a parole violator by execution of the warrant. Id . The Court stated:
In Morrissey , we held that the condition al free dom of a pa rolee ge nerate d by statut

e is a liberty

interest protect ed by the Due Proce ss Clause o f the Four teenth Amendment

which may not be terminated absent appropriate due proc e ss safeguards

. The revocation hearing mandated by Morrissey is bottomed on the par

allel inte rests of society and the pa

rolee in establishing whether a parole violation has occurred a nd, if so, whether

under all the circ

umstance s the qual

ity of that violation c alls for p arole revocation. The issue before us here, however , is not wh et her a Morrissey- type-6-

hearing will ever be constitutionally required in t he present case, but whether a hearing must be held at the pr esent time , before

the paro lee is taken into custody as a parole violator. We hold that there is no requirement for an immediate hearing.
Petitioner’s present

confine ment and c onseque

nt liberty loss derive not in any sense from the outsta

nding par ole viola tor warr ant, but f rom his two 1971 homicide convicti ons. Issuance of the warrant and notice of that fact to the institut ion of c onfinement

did no more

than expr

ess the Boa

rd’s inte nt to defe r conside ratio n o f parole revocation to a later time. Though th e gravity of petitioner’s subsequent crimes places him under a cloud, issuance of the wa rrant wa s not a

determination that petitioner’s parole under his 1962 rape co nviction will be revoked; the time at which the Commission must make that decision has not yet arrived. With only a prospect of future incarceration which is far f rom certain, we cannot say t hat the parol e violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought toprotect. Indeed, in holding that ‘[the] r evocati on hearing must be tendered within a reasonable ti me after the parolee is taken into custody,’ Morrissey , 408 U.S. at 488, we establishe d execution of the warrant and custody under that warrant as the operative event trigger ing any loss of

liberty attendant

upon parole revocation. This is a functional designation, for the loss of liberty a s a parol e violator does not occur until the parolee is taken into custody under the warr ant.

. . . His [Moody’s] real complaint is that he desires to serve his sentence f or the 1962 rape conviction concurrently with his sentences for two 1972 homicides. But, as we have noted, even after completion of the homicide sentencesthe Commission retains full discreti on to dismiss the warrant or decide, after hearing , that pet

itioner’ s parole neednot be revoked. If revocation is chosen, the Comm ission haspower to grant, retroactively, the equivalent of concurrent sentences a nd to p r ovide for unconditional or conditional release upon completion of the s ubse quent sentence. See 18 U.S.C. §§ 4211, 4214(d) (1976); 28 CFR §§ 2.21, 2.52(c) (2) (1976). Thus, deferral of the revocationdecision

does not de

prive pe titioner o f any such opportun ity; nothing

in the statute or

regulat ions gives him any ‘right’ to force the decision of the Commission at this time.

. . . . Finally, there is a

practic al aspect to consider, for in cases such as this, in which the parolee admits or has beenc onvicted of an off

ense pla inly const

ituting a pa

role violation, the only remaining inquiry is whether continued rel ease is justified notwit hstan ding the viola

tion. . . . G

iven the p

redictiv e nature

of the he aring, it i s approp riate

that such hearing be held at the time at which prediction is both mos t relevant and most accurate - at the

expiration of the parolee’s intervening sentence

. Moody , 429 U.S. at 85-9, 97 S. Ct. 278-80 (footnotes omitted).-7-

While due process requires that a person ac cused of violating parole receive a re vocation hearing within a reasonable time after being taken into custody, Morrissey v. Brewer , 908 U.S. 471, 488, 92 S. Ct. 2593, 2604 (197 2), that “ reasona ble time”does not begin to run until custody begins on the alleged parole violation. Thus, due process is triggered only when the parolee is taken in

to custody for the parole violation, rather thanwhen the warrant or detainer is lodged. The issuanc e of a warrant and the lodging of a detainer while the person is incarce rated elsewhere for a

separa te crime, do not constitute being t aken intocust ody. Moody , 429 U.S. a t 86-87; United States v. Tippens , 39 F.3d 88, 90 (5th Cir. 1994) ; United States v. Chaklader , 987 F.2d 75, 77 (1st Cir. 1993). Similarly, under

state statute, the Board’s obligation to hold a revocation hearing “as soon as practicable” is triggered by “exec ution” of a parole violation warrant. Tenn. Code Ann. § 40-28- 122(b), and “e xecuti on” occurs when a parolee is take

n into cust

ody on the

basis of th

e warra nt, Tenn. Code Ann. § 40-28-1 21(a). I t is the depriva tion of liberty consequent to execution of the warrant which triggers the timing of the hearing under both due pr ocess and the statute.
Mr. Cotten is not in custod y becau se of the

parole r evocati o n w arrant . Instea d, he is in custody of Florida

correc tional off icials be cause

he is serving a sentence for a felony committed

in Florid a. His liberty, therefore, is not currently curtailed beca use of any action or inaction by th e Board. Consequently, Mr. Cotten cannot show a clearly established, specific, or c omplete legal right. Neither

can he show that the

Board ha s failed t

o perfor m a nondiscretionary duty. Therefore, his action for mandamus was appropriately dismissed. IV. Right to Concurrent Sentences
Mr. Cotten allegesthat he is b eing depr ived of du e proce ss rights because, depending on the punishmentissued by the Board, he will not have the opportunity to serve any time received on the parole violation warrant concurrently with his Florida sentence until the Board ho lds a parole revocationhearing. Mr. Cotten’s g oal is that the Board

revoke h is parole and impose

the sentence as soon as possible so that he can serve both his Florida sentence and his Tennessee sent enc e concurrently. “The Due Process C lause ap plies whe n gover nment ac tion depr

ives a pe rson of lib erty or property; ac cordingly , when there is a claimed de nia l of due process we have inquired into the nature of the ind

ividual’sc laimed interest.” Greenho ltz v. Inm ates of the

Neb. Pena l and Corr. Complex , 442 U.S. 1, 7, 99 S. Ct. 2100, 2103 (1979). In determining if one’s due process rights have been violated , we must decide if he has a “ legitima te claim o f entitle

ment to it.” Id . (quo ting Board of Regen ts v. Roth , 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)).
We first note that the judgment of the sentencing Florida court does not determine how the Tennessee sentence will be imposed or served. Beaucamp v. Tennessee Bd. of Paroles , No. M1998- 00960-COA-R3-CV, 2001 Tenn. App. LEXIS 884, at *11 (Tenn. Ct. App. Dec. 5, 2001) (no Tenn. R. App. P. 11 application filed). The Boar d is vest ed with the duty and authority to decide what action should be taken if parole is violated, Tenn. Code Ann. § 40-28-118(c), and “if it sees fit, [to] require such prisoner to serveout in prison the balance of the maximum term for which the prisoner-8-

was originally sentenced . . . .” Tenn. Code Ann. § 40-28-122(d). The Board’s discretion is further guided by Tenn. Code Ann. § 40-28-123, quoted in footnote 4.
Mr. Cotten has no legitimate claim of entitlement to concurren t sentence s or to an e arly revocationdetermination. The same argument was raised in Moody v. Daggett , and th e U.S. Supreme Court found nothing in the rele vant st atutes ga

ve th e parolee the “right” to force a revocation decision while he was serving a sentence for another crime. See also Tippens , 39 F.3d at 90; United

States v. Fisher , 895 F.2d 208, 211 (5th Cir. 1990). Similarly, we find no authority, statutory or other wise, tha t gives Mr. Cotten the

same righ

t.
V. Conclusion
Mr. Cotten has failed to show that h e has bee n deprived of a spe cific, c omplete r ight as a result of the Board’s failure to hold a parole revoca tion hearing during his incarceration in a Florida prison for a crime he committed while on parole. He has a lso faile d to show th at the Boa rd has a nondiscretionary duty to hold the hearing or revoke his parole before he has completed his Florida sentence. The Board ha s the auth ority and discretion to set the parole hearing at the expiration of Mr. Cotten’s Florida sen te nce. Mr. Cotten is not incarc erated at this time

because of the pa role revocationwarrant. Accordingly, we affirm the decision of the trial court and re mand the case for any further proceedings consistent with this op inio n which ma y be nec essary. The costsof this appeal are taxed to Rickey Stephan Cotten, for which exe cution may issue if necessary.

___________________________________ PATRICIA J. COTTRELL, JUDGE