### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE On-Briefs May

24, 2001 FRED HODGES v. VIRGINIA LEWIS, WA RDEN A Direct Appeal from the Chancery Court for Davidson County No. 00-1007-I The Honorable Irvin H. Kilcrease, Jr., Chancellor

No. M2000-02309-COA-R3-CV - Filed July 17, 2001

Inmates of Tennessee Department of Correction filed in the chancery

court a petition fo

r writ of habeas corpus pursuant to 28 U.S.C. 2254. The chancery court dismissed the inmates’ petition for lack of subje

ct matter jurisdic

tion. Inmates h

ave appealed. We

affirm.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Fred Hodges, P

ro Se
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stepha

nie R. Reevers, Senior Counsel, for Appellee
OPINION
On March 30, 2000, pe

tit ioners, Fred Lee H

odges, Jesse Jacks

on, and Douglas T

idwell, prisoners incarcerated at the DeBerry Spe cial Needs Facility in Nashville, acting pro se, filed a “Petition For A Writ Of

Habeas Corpus 28. USCA 2254 I n The State Court, Cla

ss Action” agai

nst Virginia Lewis, Warden of the DeBerry Special Needs Facility.
On July 6, 2000, Petitioners moved for summary judgment and, on t he same day, the Respondent

moved todismiss the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Th

e petition was dismis sed by an or der entered Aug

ust 25, 2000, for lack of subject matter jurisdiction. Mr. Hodges has appealed, stating in his brief that JesseJackson and Do ugl as Tidwell withdre w from the action,

leaving Mr. Hodg

es as sole Petitioner/Appell

ant. Although Petitione

r’s brief fails to

define his issues,

it appears from his brief that he challenges the trial court’s dismissal of his petition and contends that he is ent i tled to immediate release on parole.-2-

In Dishmon v. Shelby State Community College, 15 S.W.3d 477, 480 (Tenn.Ct.App. 1999), this Court explained subject matter jurisdiction:

The concept of

subject matter jurisdiction involves a court's power to adjudicate a particular type of controversy

. See Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn.1996); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn.1988). Courts derive their subject matter jurisdiction from the Constitution of Te

nnessee or from l

egislative act

, see Kane v. Kane, 547 S.W.2d 559, 560 (Tenn.1977); Brown v. Brown, 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501 (1955), a nd cannot exercise jurisdictional powers that have not been co nferred directly on them expressly or by necessary implication. See H icks v. Hi

cks, No. 01A01-9309-CH-00417, 1994 WL 108896, at * 2 (Tenn. Ct .App.Mar.30, 1994) (No Tenn.R.App.P. 11 application filed).
Id. at 480.
Petitioner brings his petition for a writ of habeas corpus pursuant to 28 U.S.C.A. 2254, which grants federa

l courts power to is sue writs of habe as corpus, read

ing in pertinent p

art: (a) The Supreme

Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of h abea s corpus in behalf of a person in custody pursuant to the judg ment of a State court only on the ground t

hat he is in

custody in violation of the Constitutional or law

s or treaties of th

e United States.
28 U.S.C.A. § 2254 (a). The Chancery Court of Davidson County has no subject matter jurisdiction to issue a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254.
If we consider

Mr. Hodges’s petition as a petition under Tennessee law, we look to T.C.A. § 29-21 -10 1 (2 000 ), w hic h al low s a p ers on i mpr iso ned or r est rai ned to t est the lega lit y of hi s imprisonmentor restraint through the prosecution of a writ of habeas corpus. State v. Warren, 740 S.W.2 d 427 (Tenn . Crim. App. 1986). U nder Tennessee

law , habeas cor

pus relief is limite

d in scope, available only if it is apparent from the face of a j udgment, or the record o f the proceed ings upon which the judgment was rendered, that the court was without ju risdiction or autho

rity to sentence the defendant, or that thedefendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Under Article I, Section 15 of the Tennessee Constitution, a petitioner may contes t a void or il legal imprisonment by bringing a petition for a writ of habea s corpus. Id. However, unless the allegations of the petition establish the void character of the judgment, an evidentiary

hearing is not warranted. Russell v. Wi llis, 222 Tenn. 491, 437 S.W.2d 529 (1969); State ex rel Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (1964).-3-

In the i nstant action, Peti tioner has not asse

rted that his sente

nce has expired or

that his conviction is void. In addi tion, it does not appear on the face of the record that the convicting court was without jurisdiction

to enter the judg

ement, nor does it a

ppear that Pe

ti tioner’s sentence of imprisonme

nt h as expired. Therefore, even if we apply T.C.A. § 29-21-101, the petition was properly dismissed.
Petitioner’s claim challeng es application of

the current law b

y the board

of parole in

making a determination of h

is parole and claiming a violation of theEx Post Facto Clause. He claims that the new policies as amended in 1985 and applied retroactively violate previous rig hts and relief gi ven andtherefore viola

te his civil

rights. Petitioner asserts that he was illegally denied a parole hearing because at the date of his crime, September 21, 1977, the applicable law d

etermined that he

would be granted parole after 13 1⁄2 years of inc arceration, thereby creating a liber ty interest which

has been violated. Petitioner further asserts that by enacting the1985 amendment to parole regulations, the parole board illegally assigned themselves the power to take away mandatory parole, thereby violating the Ex Post Facto Clause and the principle of separation of powers.
The brief of Respondent correctly asserts that the mechanism for seeking judicial review of an action of state administrati ve agencies, i

ncluding the ca

lculation of a pris

oners sentence

, is providedfor in T.C.A. § 4-5-101, e t. seq. Pursuant to T.C.A. § 4-5-225, an inmate may seek a declaratory

judgment on the “[t]he legal validity or applicability of a statue, rule or order of an agency to specified circ

umstances...,” h

owever, T.C.A. § 4

-5-225(b) requ

ires that the inmate must first seek a declaratory order from the Tenne ssee Department of Correction on the same.
The reco rd d oes not sup por t Pe tit ion er’s cla im t o ha ve ex hau ste d hi s ad min ist rat ive rem edy. Nevertheless,

even if we treat the petition as simply an action alleging illeg al refu sal to cons ider Petitioner for parole in viol

ation of Ex Post Fact

o and Due Process

Clauses, we believe that thetrial court correctly dismissed the case for failure to state a cla im for which relief can be granted.
In California Dept. Of C

orrections v. Morale

s, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the United States Supreme Court rejected the argument that a change in the freque ncy of parole hearings to the possible detri me nt of a prisoner sentenced before the change must be considered

a violation of the ex post facto clause. Requiring a prisoner to serve a valid sentence, and notgranting parole is not

a violation of his constitutional rights. MacKenna v. Avery, 404 F.2d 71 (1968). Although a

prisoner has served the minium term of his conviction and has a good conduct reco rd, he has no absolute right to be released upon parole. Graham v. State, 30 4 S.W.2d 622 ( 1957). Grants of parole are withi n the discret ionary power of the board of parole. State ex rel. Neilson v. Harwood, 194 S.W.2d 448 (1946); and State ex rel Ivey v. Meadows, 393 S. W. 2d 744 (1965). Tennesseelaw does not crea te the right to ea

rn sentence cre

dits. T.C.A. § 41-21-236(a)(2); Drummer v. Luttrell, 234 F.3d 1268 (6 th Cir. 2000). P risoners eligib le for parole do not have a constitutional right to release prior to expi ration of their sentence, and the government retains the power to change the criteria of parole eligibility. T.C.A. § 41 -1-504 (b); Robinson v. Traughber, 13 S.W .3d 361 (Ten n. C t. A pp. 199 9). How ever , an alt erat ion in p arol e el igi bil ity m ay imp licate ex post facto laws if the effect of a repeal impos

es a more severe punishment than was prescribed-4-

by law at the time of

the offence. Jaami v. Conley, 958 S.W.2d 123 (Tenn. Ct. App. 199 7). But, where a prisoner

can only show a speculative possibility of an ear lier release absent an amendment in the law, there is no violation of ex post facto law. Wilson v. State , 980 S.W.2d 196 (1998).
Acco rdi ngly, we affirm the de cision of the trial

court dismissing th

e petit ion for habeas corpus. The case is remanded to the chancery court for any further necess

ary proce edings. Cost on appeal are assessed against petitioner/appellant, Fred Hodges, and his sure ty.

____________________________________________ W. FRANK CRAWFORD, PRE SIDING JUD

GE, W.S.