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

ovember 9, 1998
WILLIE PERRY v. TENNESSEE BOARD OF PAROLES, ET AL


### .

Appeal from the Chancery Court for Davidson County No. 97-2865-III Ellen Hobbs Lyle, Chancellor

No. M1998-01018-COA-R3-CV - Filed January 22, 2001

This appeal involves a prisoner’s efforts to be released on parole. After the Tenne ssee Board of Paroles declined to rele

ase him on parole,

the prisoner file

d peti tions fo r both common-law and statutory certiorari in the Chancery Court for Davidson County asserting that the Board had acted illegally, arbitrarily, and

fraudulently. Th

e trial court dismissed the prisoner’ s petition. We aff irm.
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 opi nion of the court, i

n which B EN H. C ANTRELL , P.J., M.S., and P ATRICIA J. C OTTRELL , J., joined.
Willie Perry, Jr., Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore , Solicitor Genera l; and Patricia C. Kussmann, Assistant Attorney General, for the appellees, Tennessee Board of Paroles; Charles Traughber, Chairperson; Tom Bi ggs, Vice Chairpe

rson; Don Dills; Rose

Hill; John Harwell; Ancel McDuffee; and L

arry Hassell, Boa

rd Members.

OPINION

WilliePerry is currently incarcerated at the Wes t Tennesse e High Security Fac ility in Henning. He was originally convicted of sec

ond degree murde

r in1981 in

Shelby County andwas sentenced to teny ears. He was eventually paroled but was later returned to prison after being convicted of aggravated a

ssault, receivin

g and concealin

g stolen property, and seven counts of armed robbery. When Mr. Perry was again considered for parole in 1997, the Tennessee Board of Paroles declined to grant him parole

on the ground that ( 1) grantin g him parole

would adversely affect internal prison discipline and (2) that he was in need of substance abuse counseling. Mr. Perry requested an ap

peal of the Board ’s decision, but the Board denied his r

equest.1 The re cor d sh ows th at fr om 19 91 t

hro ugh 199 6, th e Bo ard

di d de cl in e t o pa

rol e Mr . Perr y because of t he seriousness of hi s crimes. However, Mr. Perry cannot obtai n direct or collateral rev iew of the se decision s at this late date because he failed t o seek judicial

review of eac

h of them withi

n sixty days

as requir

ed by Tenn. Code Ann. § 27-9- 102 (2000). Thandiwe v. Traughber , 909 S.W .2d 802 , 804 (T enn Ct. A pp. 199 4). Thus, Mr. Perr y’s present

petiti on is untime ly, at least to the e xtent that h e is attemp ting to cha llenge the B oard’s de cisions betw een 199 1 and 1 996.

-2- InJuly 1997, Mr. Perry filed a petition in the Chancery Court for Davidson County seeking writs of both common-law and statutory certiorari. He asserted that the Board in denying him parole acted illegally, arbitrarily, or, in the alternative, fraudulently. The Board responded by moving for dismissal of Mr. Perry’s petition because it failed to allege either legal or factual grounds justifying issuance of a writ. In Dec ember 1997, the tr

ial court g

ranted the Boar d’s motion, finding that nothing legally

prevented the Board from resting its denial of parole on the grounds it articulated. As to the Board’s alleged arbitrariness, the court found that the record submitted with

Mr. Perry’s petition indicated that the Board had a rational basis for its decision. Mr. Perry has appealed.

I.

As we have said bef

ore, except for

mandatory parole

situations, parole

is a privilege and

not

a right. Totty v. Tennessee Dep’t of Corr. , No. 01A01-9504-CV-00139, 1995 WL 700205, a t * 3 (Tenn. Ct. App. Nov. 29, 1995) (No Tenn. R. App. P. 11 application filed ). Whether parole should be granted

is a decision entrusted not to the courts but to the Board of Paroles. Rucker v. State , 556 S.W.2d 774, 776 (Tenn. Crim. App. 1977). Our only task is to review whether Mr. Perry has pled facts which, if taken

as true, would indicate that the Board acted illegally, arbitr

arily, or fraudu

lently by declining to par

ole him.

We deal first with Mr.

Perry’s contenti

on that the Board a

cted outside the la

w by resting its denial of parole on considerations of the s eriousness of his underlying criminal offenses. That argument goes nowhere for two reasons. First, the Board’s June 1997 decision to decline to parole Mr. Perry does not app

ear to stem from the seri

ousness of his offe

nses. 1 Second, even if the Board had based its decision on the seriousness of Mr. Perry’s offenses, it is now beyond question that the Board may consider the seriousness of a prisoner’s offense. Arnold v. Board of Paroles , 956 S.W.2d 478, 482 (Tenn. 199

7); Robinson v. Traughber , 13 S.W.3d 361, 363 (Tenn. Ct. App. 1999).

We also reject Mr. Perry’s contention that the Board acted illegally by

declining to grant

him parolewithout stating “sufficient reasons” for doing so. Mr. Perry relies on cases constru ing ol d federal statu

t es such as 18 U.S.C. § 4206(b) (repealed 1987), that required federal parole boards denying parole to state the reasons for their decisions “

with particularit

y.” As a state

prisoner, Mr. Perryhas no corresponding entitlement. Jordan v. Board of Paroles , No. 01A01-9607-CH-00347, 1997 WL 13756 at *4 (Tenn. Ct. App. Jan. 16, 1997) (No Tenn. R. App. P. 11 application filed). Furthermore, Mr. Perry’s argument, considered as a whole, demonstrates that he understood what the Boar d was referrin

g to when it said that to grant him parole would adversely affect prison discipline. He did not need any additional particularity to understand the Board’s stated bases for denying him parole.-3-

That leads us to our final point. Mr. Perry argues in his repl

y brief that he should not have been denied parole based on his di sciplinary i nfractions alone. He characterizes his disciplinary “write ups” as illegal and false. Mr. Perry may not use this petition for

certiorari against the Board of Paroles to collaterally challenge disciplinary determinations made by prison officials, not by the Board of Paroles. The pr

oper vehicle for

challenging a pri

son dis ciplinary action is a petition for

commo n l aw certiorari directed against the responsible officials and filed within sixty days of the challenged

action. Rhoden v. Departm ent of Corr. , 98 4 S.W.2 d 955, 956 (Tenn. Ct. App. 1998). We note that M

r. Perry brought such a cha llenge while this a

ppeal has been pe

nding, and that his challenge was unsuccessfu l. Perry v. Campbell

, No. M1998-00943-COA-R3-CV, 2000 WL _____ (Tenn. Ct. App. Jan. 22, 2001) (No Tenn. R. App. P. 11 applicat ion filed); Perry v. Cold Cree k Corr. Facility Disciplinary Bd. , No. M1999-01898-COA-R3- CV, 2000 WL 1137710, a t *2 (Tenn. Ct. App. Aug. 9, 2000) (No Tenn. R. App. P. 11 application filed).

The Board followed the

law when it

declined to parole Mr. Perry. The General Ass embly has determined that no prisoner shall be granted parole if the Board finds release from custody at the time parole is so

ught w ould have a substantially adverse effect on institutional discipline. Tenn. Code Ann. § 40-35-503(b)(3) (1997). Mr. Perry’s disciplinary infractions had occurred a mere five months prior to his parole hearing. Perry v. Cold Creek Corr. Facility Disciplinary Bd. , 2000 WL 1137710, at *1. We cannot say that the Board acted arb itrarily by deciding that to parole a known refractory prisoner would adversely affect institutional discipline.

II.

We affirm the dismissal of Mr. Perry’s pet ition s and remand the case to the trial court for whatever other proceedings may be requ ir ed. We tax the costs of this appeal to Willie Perry for which execution, if necessary, may issue.

___________________________________ WILLIAM C. KOCH, JR., JUDGE