# FILED
March 27, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
MELVIN J. F LOWERS, ) ) Petitioner/Appe llant, ) Davidson Chancery No. 95-3632-I ) VS. ) A ppeal No. 01A 01-9609-CH- 00392 ) CHA RLES TRA UGHBER, et al, )

) Respondents/Appe llees. ) APPEAL FROM THE CH ANCERY COU RT OF D AVIDSO N COU NTY

AT NASHVILLE, TENN ESSEE THE HONORABLE IRVIN H. K ILCREASE, JR ., CHANCEL LOR

MELVIN J. F LOWERS, pro se Nashvil le, Tennessee
CHA RLES W. BUR SON At torney General & R eporter PATRICIA

C. KUSSMANN Assi stant A

ttorney General Nashvil le, Tennessee Attorneys for Appellees

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J.2

In this action , Melvin Flowers (“Flowers”) filed a petition for writ of certiorari or, alte rnat ively, a writ of habeas corpus in the chancery court seeki ng judici al review of the Parole Board’s (“Board”) decision topostpone his par ole eligi bility hearing unti l he received
an updated psych ological evaluation. The chancery court denied Flowers’ petition for writ of certiorar i and held that the Board did not ac t arbitrar ily, cap riciously or in ex cess of its jurisdict ion in making its decision to delay Flowers’ parole eligibility hearing. Flowershas appealed the judgment of the chan cerycourt, arguing that his constitutional rights were violated by the Boar

d’s decisi on to defer his par ole hearing . F or the reason s stated hereafter, we affirm the judgment of the chancery court.

FACTS

In 1971, F lowers was charg ed with the murder of his first wife in Al abama. An Alabama Grand Jury

returned a notrue bill and did not indic t Flower s for this offense. In 1988, Flowers was charged with the murder of his seco nd wife i n Tennessee. On September 25, 1989, F lowers was convicted of second degree murder for the murder of his second w ife and sentenced to t welve years in prison.

When Flowers fi rst be came eligibl e forparole in September 199 1, Assistant District Attorney Edward Wilson , wrote a letter to the Board protesting the early release of Flowers on parole. Mr. W ilson’s letter states in part as follows: Mr. Flower

s was conv icted for the off ense of second degre e murder out of the C riminal Court for Sullivan County on S eptem be r 25, 1989. The victim in this case was his wife. Mr. Flowers’ f irst w ife died from gunshot wounds under mysterious circumstances several years prior to the present i nc ident for which he is serving a sentence. At the t ime o f the murd er o f his sec ond wife, he and his w ife w ere talking to their C atholic Priest on thephone, and the p ries t heard what he described as being gunsh ot( s) over the ph one, and the phone was hung up. The investi gation also revea led that at the ti me of the murdering of his wife thecoupl e’s small child wa s present in the home. Due to the mysterious ci rcu mstances involved at th e death of Mr. Flo wer s’ fi rst wi fe1 Flowers assert s thatbecause an Al abama grand jury ret urned a no t rue bi ll regardi ng the cha rges brought again st hi m for the murder of his f ir st wi fe, all inf ormation i mplicat ing hi m for the deat h of hi s fi rst wife s hou ld be e xpu nge d fro m his re cor ds w ith the B oard

. 3 and takin g into cons ider atio n the eve nts and facts of the murder

of his second w ife, the State feels that a confinement per iod of approximately two years i s much too lenien t when you consider the val ue of human life. The refore, the District A ttorney is strong ly opposed t o the granti ng o f any early

release to M r. Flow ers.

Flowers was denied parole in September 1991 and in November 1993 due to the seriousness of his offense, his hi gh risk to society and his need to partici pate in a mental health program. F lowers was schedul ed to come before the Boar d again in N ovember 1995, yet the Boar

d notified Flowers on October 5, 1995 that his parole hearingwould be continued so that Flowers could first un dergo a psychological examination.

Due to the Board’s continuance of his par ole hearing , Flower

s filed apetition for writ of certi orar i or, a ltern ative ly, for a writ of habeas corpus in the chancery court on November 17, 1995. In his peti tion, Flowers argued that his due proces s and equal pr otection rights had been violat ed by the Boar d’ s decision t o postpone his par ole hearing and by the Board’s alleged reliance upon the aforementioned l etter from the district attorney’s office in determining Flower ’s parole el igibili ty. Flowers contendsthat the Board relied upon false assertionscontained in th e letter in mak in g their dec ision po stpone his parol e hearin g. 1 Flowers also argued that the dela y of his parole eligi bility hearing constitutes cruel and unusual punishment.

Flowers filed a motion fo r a preliminary injunction and for a perma nent or temporary restrainin g order seeki ng an order from the chancery court direc

ting the Bo a rd and the Departmentof Correction to eliminate al l informati on i n their files implicating Flower s for the murder of his fir

st wife and di recting t he Board to schedu l e a paro le hear ing for him. Flo wers then fil ed a “motion for order to be brought to court” wherein he sought a court order req uiring hi s presence dur ing the heari ng on his moti on for injuncti ve reli ef.2 Flow ers nam ed m em bers of the Boa rd of Par oles and the w arde n of th e N ash ville Com m unity

Servi ce Center a s Defendants. They ar e also descri bed in the pl eadings as Respondents. 4 Flowers thereafter filed a petition for w rit of supersede as and again petit ioned the court for a n orde r directi ng the Board t o expunge from t heir recor ds all informati on implicating Flower

s for the murder of his first w ife and foran order directing the Bo ard to schedule a parol e hearing for him.

The Respondents filed a m otion to dismiss Flowers’ petition for f ailure to st ate a claim upon which relief can be granted. 2 In response, Flowers filed a “motion to grant writ of certiorari and deny respondent motio n to dismiss” and a “motion to be b rought to cou rt” wherein he sought a court order requiring his presence duri ng the hearin g on the Respondents’ moti on to dismiss.

The chan cery co urt d enie d Flo we r s’ reques t for a temporary restraini ng order or preliminaryinjunction ho lding that F lowers failed to show that he would suffer irreparable harm prior to a decision on the merits of his case . The chancery court also denied Flowers’ petition for a writ of supersedeasholding that a writ of supersedeas was an inappropr iate remedy for the type of relief tha t Flowers requested. The chancery court thereafter gr anted the Respondents’ motion to dismiss and held that the Boa rd did not act arbit rarily , capriciouslyor i n excess of i ts jurisdi ction when it postponed Fl owers’ parole elig ibility hearing unti l he received an updated psy chological evaluation.

After the Board once again denied Flowers release on par ole on Februar

y 6, 1996, Flowers filed a “motion to reconside r dismissal of his wr it o f certiorar i due to a supplemental issue” and ar gued that the Boar

d’s decisi on to deny

him parole violated his equal protection and due process r ights under the constitution. The chancery court denied Flowers ’ motion for reconsideration.

Flower s thereafter filed a petition for “writ o f certiorar i on supplemental issues,” seeking review

of the Board’s deci sion to decli ne to rel ease him o n par ole. Flower s next filed a motion for summary judgment, seeking a court order directing the Board to release5

him on parole. F lowe rs the n filed a seco nd moti on for a preli mi na ry inju nction and temporary restraini ng order and again sought an order from th e chancery court directing the Board to rel ease him on parol e.

After filing the foregoing motions, Flowers filed a motion for appointment of counsel and requested that the court appoint an attor ney to represent him during t he hearings on these motions. Flowers subsequ ently filed a motion requesting the court to ord er dis cover y.

Because the chancery court had prev iously di smissed Flower s’ action and had previouslydenied Flowers’ motion to recons ider , the chancery court denied Flowers’ motion for a prelimin ary injunction and temporary r estrainingorder, motion to compel discovery

and mo tion for summary ju dgment and held that Flower s’ no longer

had an action pending before the court.

Flowers appealed the judgment of the chancery court and filed a not ice design ating his issues on app eal. The Responden ts then objected to two of the issues that Flowers designated on appeal: clas s certificati on a nd pri son overcrowding. The chancery court thereupon issued an orde r denying Flower s request t o supplement the record to incl ude these two addi tional issue s that were not properly raised in t he chancery court.

LAW

The issues before this Court are as follows: 1 ) W hether the chancery court erred in holding that th e Board’s decision t o postpone Flowers’ parole eligibil ity he aring unti l he received an updated psy chological examination did not deny Flowers his constitutional right to due proce ss; 2) Whether the chancery cour t erred in hol ding that the Bo ard’s decisi on to postpone Flower

s’ parole el igibil ity heari ng until he received an updated psyc hological examination di d not deny Fl owers hi s constituti onal right to equal pr

otection; 3) Whether th e chan cery cour t erred in hol ding that the Board’s appli cation of6

amended Board polic y rules, which became effe ctive over two years after Flowers’ convicti on, did not v iolate the proh ibitions under the Ex Post Facto Clause; 4) Whether the chancery cour t erred in den yi ng Flowers’ motion to expunge from his record with the Bo ard all informat ion implicati ng him for the deat h of his first w ife? 5) Whether the chancery cour t erred in denyingFlower s’ motion for appoi ntment of counsel; 6) Whether the chancery co urt erred i n denying Flowers the opportunity

to be present in cour

t; 7) W hether the chancery court erred in denying Flowers’ request to supplement the record to in clude two additional is sues not proper ly rais ed in the chancer y court; and 8) Whether the chancery cour t erred in d ismissin g F lowers’ petition for w rit of
certiorari holding that

the Board did not

act arbitr

arily, capriciousl y or in e xcess of its jurisdict ion in ma king its de cision to delay Flowers ’ parole e ligibility he aring.

The scope of revi ew under a common law writ of cer tiorari i s very

narrow. Powell
v. Parole Eli gibilit

y Revi ew Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). It covers only
an inquiry

into whethe r the Boar d has excee ded its ju risdi ctio n or is actin g illeg ally, fraudulently or arbitr

arily. Foster v . First N ational Bank , 430 S.W.2d 450, 451 ( Tenn. 1968); Hoover Motor Exp. Co., Inc. v. Railroad. & Pub. Util. Comm’n , 261 S.W.2d 233, 238 (Tenn. 1953); Fite v. S tate , 9 2 5 S

. W. 2d 543, 54 4 (Tenn. Ct. App. 1996); Powell , 879 S.W.2d at 873; Yokley v. State , 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981). It is not the correctness of the decision that is subjec t to judicia l revie w; rather , it is themanner in which the decision is

reached. State ex rel McMorro ugh v. H unt , 192 S. W . 931 (Tenn. 1917); Powell , 879 S.W.2d at 873; Yokley , 632 S.W.2d at 126. If the Board reac hed its decis ion in a constitutional or lawful manner, then the d ecis ion wil l not be su bjec t to ju dicia l revie w. Id

.

Flowers argues that he was denied due proces s by theBoard’s deci sion to postpone his parole elig ibility

hearing unti l he received an updated psy chological examination . I n determining whether a due process v iolation has o ccur red , the exis tence of a protected7

right must be the thres hold determinati on. Howard v. Grin age , 82 F.3d 1343, 1349-50 (6t h Cir. 1996). In the abs ence of a protected r ight, a pl aint ifffails to stat e a due p roces s clai m. Id

. T. C A. § 40-35-503(b)(1996 Su pp.) provides as follows: (b) Release on parole is a priv ile ge an d not a right , and no inmate convicted shall be gr

anted parole if the board finds that: (1) There is a substan tial risk that the defendant w ill not conform to the condit ions o f the re lease progr am; (2) The release from custody at the time would depreciate the seriou sness of the crime of w hich the defendant stand s convicted or promote disrespect for the l aw; (3) The release from custody at the time would have a substa ntiallyadverse effect on institutio nal discipl ine; or (4) The defendant's continued c o rrectional treatment, medical care or voca tional or other training in the institution will substantially enhance th e defendant 's capacity to lead a law -abiding l ife when given r elease status at a later time. The legislative grant of probation is therefore a privilege and canno t be demanded as a right. State v. Correll , 626 S.W.2d 699, 701 (Tenn. 1982); Hooper v. State , 297 S.W.2d 78, 81 (Tenn. 1956); Kaylor v . Bradley , 912 S.W.2d 728, 733 (Tenn. Ct. App. 1995 ) .

The Supreme Court i n Greenholtz v. Inmates of N ebraska Penal an d Correcti onal Complex , 442 U.S. 1, 7(1979), stated th at there is no inhere nt right of a convicte d individual to be conditionall y release d before the expi ration of a valid s entence. “[G]i ven a valid convicti on, the criminal defendant has been consti tutionally deprived of his liberty .” Id ., quoting Meachum v. F ano , 427 U.S. 215, 224 (1976). Fur

ther mor e, there is no constitutional guarantee that the admi nistrative decisions of a parole board will result in error-free de terminations. Greenholtz , 442 U.S. at 7.

Simi larly, our Court has recently stated that

the “mere possibility of parole is not a constitutionally protected liberty interest.“ Kaylor , 912 S.W .2d at 7 32, citin g Greenholtz , 442 U.S. at 7; See also , W right v. Trammell , 810 F.2d 5 89, 591 (6th Cir. 1987) (holdi ng that under the rul es of the Tennessee Board of Parole, inm ates do not have a constitutionally protected li berty int erest in the ex pectancy of rel ease upon parole an d due process is not req uired in connec tion wit h the Parole Boar d’s determinati on of whether to8

grantparole to an i nmate). Ther efor e, because Flowers does not have a statutory or constitutionally protected ri ghtto release on parole befo re the expiration of his twelve year sentence, Flowers’ due process rights were not v iolated by the Board’s dec ision to delay Flowers ’ parole hear ing until he received an updated psy chological examination.

Flowers also cla ims that his equal protection rights were violated by the Board’s decision to delay his parole elig ibility hearing unti l he received an updated psyc hological evaluation. The concept of equal protection es poused by the feder al and state constitutio ns guaranteesthat all per sons similar ly situated shall be tr eated alike. State v. Tester , 879 S.W.2d 82 3 , 828 (Tenn. 1994); Tennessee Small Scho ol Systems v. McWherter , 851 S.W.2d 139, 153 (Tenn. 19 93). Equal protection analysis requires s tric t sc rut iny of a legis lati ve classification when the classif icatio n in ter fere s w ith the e xercis e of a “fundamental right” (e.g., ri ght to marry , right t o vote or r ight of priv acy) or when the classificati on oper

atesto t he pe cul iar

dis advanta ge o f a “suspect class” (e.g. , aliena ge or race). S tate v. Tester , 879 S.W.2d at 828; Harrison v . Schrader , 569 S.W.2d 822, 825 (Tenn. 1978); San Antonio Independent School Dist . v. Rodr iguez , 411 U.S. 1, 16(1973); Baker v. Carr , 369 U.S. 186 ( 1962) (rig ht to vote); Griswold v. Connect icut , 381 U.S. 479 (1965) (rig ht to pri vacy) ; Shapiro v. Thompson , 394 U.S. 618 ( 1969) (rig ht to interst ate travel). The right t o parole, ho wever , is no t a fundamental rig ht. Although the right t o personal liberty

is fundamental, that right is not implicated after

a per son i s co nvi cted of a crime and the only issue is the manner of serv ice of the sentence imposed. Tester , 879 S.W.2d at 828; See also , State ex rel . Stewart v. McWherter , 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992) . Furthermore, the Tennessee Supreme Cou rt has prev iously hel d that the right to probation is a pri vilege and no t a right. Tester , 879 S.W.2d at 828; Stat e v. Correll , 626 S.W.2d 699, 701 (Tenn. 1982); See also , Hooper v. State , 297 S.W.2d 78, 81 (Tenn. 1956).

W here the right infringed upon i s not a fundamental rig ht, a reduced l evel ofscrutiny applies. Tester , 879 S.W.2d at 828-30. Accordingly, we wil l apply the rational basis test in analyz ing Flowers’ equal protection c hallenge. Under this standar

d, an equal pr

otection9

challenge must fail if some reasonable b asis can be found for the classification, or if any state of facts may reas onably be conceived to j ustify the cl assification. Tester , 879 S.W.2d at 828; Tenness ee Smal l Scho ol Systemsv. McWherter , 851 S.W.2d at 153; Harri son v. Schrader , 569 S.W.2d at 825.
Our legis lature has g iven the Boar d the discret ion in determinin g when and under whatconditions pr isoners ser ving fel ony sentences of more than two years may be released on parole. See T.C.A. § 40-28- 118(a)(1990); T.C.A. § 40-35- 504(a)(1990). See also , T.C.A. § 40-22- 109(1990). Becau se it is reasonable for our l egislature to clothe the Board with the authority to determine which pris oners se rving valid s entences wi ll be released on parole, we conclude that Flower s’ equal pr

otection challenge i s without merit.

Flowers next asser

ts tha t th e Board breached the prohibiti ons under the Ex Post Facto Claus e by a pply ing B oard po licy rules , whi ch beca me eff ecti ve over two years after Flowers’ conviction, to determine the sched uling of Flowers’ parole el igibility hearings. Flowers cont endsthat

beca use t he Bo ard coul d dec reas e thefreq uenc y of h is par ole eligibil ity hearings u nder the more re cent Board policyrules, his rights u nder the Ex Post Facto Clause have been violated.

Both the state and fed eral constitu tions contain prohibitions against ex post facto laws. U.S. Const. Art. I, § 10, cl. 1 ; Tenn. C onst. A rt. I, § 11. Th e Unit ed Stat es Supr eme Court and the TennesseeSupreme Court h ave adopted compl ementary constructions of these provisi ons. Kaylor , 912 S.W.2d at 731. The United States Sup reme Court has recentlystated that the Ex Post Facto Clause is “aimed at law s that ‘retr

oactively alter the definition of cri mes or increase the punishmen t for criminal acts.’” Id ., quotin g California Dep’t of Correction s v. Mor ales , 115 S.Ct. 1597, 1601 (19 95). The Tenne ssee S upreme has likewi se stated that thecritical question i n an ex post facto analysis is “w hether the law changes the punishment to t he defendant’s disadv antage, or i nflicts a gr

eater punishment than the law al lowed when the offense occ urred.” State v. Pear son , 858 S.W.2d 879, 883 (Tenn. 1993).10

Both the federal and state precedents establish that two element s must be present in order for a criminal or penal law

to run afoul of

the Ex Post Facto

Clause. Fi rst, the law must apply ret rospectively to events occurri ng before its e nactment. Kaylor , 912 S.W.2d at 732; Weaver v. Graham , 450 U.S. 24, 28 (1980); Lindsey v . Washington , 301 U.S. 397, 401 ( 1937). Se cond, the law must disadvantage the offender affected by it. Id . The courts, however , have resi sted devis ing a bright l ine test for analyzing ex post facto claims. Morales , 115 S.Ct. at

1603. Determinations of these claims are based on a case-by-case basis. Kaylor , 912 S.W.2d at 732. The outcome dep ends on the sig nificance of the ri ght involved and the sig nificance of the impai rment. Id

.

In D obbert v. F lorida , 432 U.S. 282, 293 (1977), the Supr

eme Court held t hat th e prohibition of ex

post facto

laws does

not extend to every change of law that “may w

ork to the dis advanta ge o f a defendant.” Instead, it i s intended to sec ure “substanti ve personal rights” from retroacti ve depriv ation and does not “ limit th e legisl ative contr ol of remedies and modes of p rocedure which do not aff ect matters of substa nce.” Id

.

The Court in Portley v . Grossman , 444 U.S. 1311 (1980), was faced w ith an issue similar to the one in the present case. In Portley , the appellant contende d that the parole commission violated the constituti onal prohibit ion against ex post facto laws by utiliz ing adm inist rative guidelines , which ha d changed from those in effect at thetime the appella nt was sentenc ed, in determini ng the appella nt’s elig ibility for parole. 444 U.S. at 1312. In holding that the parole commission did not violat e the proh ib ition against ex post facto laws, the Court stated as follows:

[t]he guidelines operate only to provide a framework fo r the Commission’s exercis e of its statutory discretion . The terms of the sent ence origin ally im pose d have in no way been altered.

. . . The guidel ines, therefore, neither depri ve applica nt of any pre-existing right nor

enhance the punishmentimposed. The change in guidel ines assist ing the Commis sion in the exercise of its discr

etion is in the nat ure of a procedural change found permissible in Dobbert, supra

. Portley v . Grossman , 444 U.S. at 1312- 1313.

In addition, the Supreme Cour t has recently

addressed this

same issue in California11

Dep’t of Correction s v. Mor ales , 115 S.Ct. 1597(199 5). In 1981, the State of California
ame nded its parole procedures to allow the Board of Prison Ter ms to decrease t he frequency of parole suita bility hearings unde r certain c ircumstances. In Morales , the Court
was faced with th e question of w hether the appli cation of this amendment to pr isoners w ho committed their cri mes before it was enacted vio lated the Ex Post Facto Clause. 115 S.Ct at 1599. I n holdi ng that the am endme nt’s applic ation to prisoners who committed the ir crimes before it wa s enacted did not v iolate the Ex Post Facto Clause, the Court stated as follows: [t]he ame ndment did not incr ease the “punis hment” attached to respondent’s c ri me. It left untouched his indetermi nate sentence and the substantive form ula for secu r ing any reductionst o the sentencing range. By introducingthe possibilit ythat the board would not have to hold an other parole hearing in the year

or two after

the initial hearing, the amendment simply al ters the method to be followe d in fixing a parole release date unde r identical substantive standards.

. . . . Under res pond ent’ s ex pans iv e vi ew, the C laus e wo uld fo r bid any legislative chang e that has any conceivabl e risk of affecting a pris oner’s punish ment.

. . . . Respondent’s approach would require that we invali date a ny of a number of minor ( and p er haps inevi table) mechanical changes that mi ghtproduc e some remote risk of impact on a prisoner’s expected ter m of confinement. Under respondent’s approach , the judiciar y woul d be charged w ith the micro ma nagem ent of a n end less array o f leg islat ive adjust m ents to parole and s entencing pr ocedures, inc luding such innocuous adjustments as chang es to the membership of th e Board of Prison Terms, restriction s on the hours tha t prisoners may

use the prison law

library , reductions in the duration of the parole hear ing, rest rictionson the time all otted f o r a convict ed defendant’s rig ht of allocution b efore a sentencing j udg e, and page limitations on a def endant’s objectionsto presentence reports or on documents seeki ng a pardon from the gove rnor. The se and countless other cha nges might createsome speculati ve, attenuated r isk of affecting a prisoner’s actual term of confin ement by making it more difficult for him to make a persuasive case for e arly release, but that fact alone cannot end the matter for ex post facto purposes. Morales , 115 S.Ct. at 15 98-1599, 1602-1603.

Because application of the amended Board poli cy rules to determine the scheduling
o f Flower

s’ parole el igibili ty hearing s creates onl y the most sp eculative and atten uate d possibilit yof producing t he prohibited effect of i ncreasing the measure of Flowers’12

punishment, we conclude tha t the Board’s use of the amended policy rules to deter mine the scheduling of Flowers’ par ole hea rings does not vi olate the prohi bitions under the Ex Post Facto

Clause.

Flowers further contendsthat the chancer y court er red in not orderi ng the Board t o expunge from thei r records a ll information implicating Flowers for the mu rder of his first wife. Because Flowers was formally charged w ith the crime of ki lling hi s first w ife but was not indicted for this offense, Flowers argues that suc h information shoul d be eliminated from the Board’s fil es. In support of his argument, Flow ers relies upon T.C .A. § 40-32- 101(1996 Supp.). Although T.C.A. § 40-32-101 provides for the destruction of all “public records” of a person wh o was charged wit h a crime but w hose charges were lat er dismiss ed, it sp ecific ally exclude s from the def inition of pub lic record s the fo llowing:

arrest histories, investi gative r eports, intel ligence i nformation o f law enforcement

agencies, o r files of distr ict at torney s general that are maintai ned as confidential recor d s for law enfor cement purposes and ar e not open for inspec tion b y members of the public. T.C.A. § 40-32-1 01(b)(1996 Supp. ).

The statute, therefore, express ly permit s law enforcement a gencies to maintain information in their files regarding individuals who have been charged with specific crimes. Thus, the chancery

court did not err in deny ing Flowers’ req uest to order the Board to expunge from their records all i nformation impl icating Flo wers for the murder of his first wife.

Next, Flowers argues that the chancery court erred in not appointing an attorney t o represent

him. T he Uni tes States Supreme Court in Douglas v . People of State of California , 372 U.S. 353(1963), held that the Fourteenth Amendment g uarantees the ri ght to counsel to an i ndigent defendant thr ough the first appeal as ofright. Once the process goes beyond the tr ial and the d irect appeal as of right stage, the stat e has no duty to providean attorney for the indigen t defendant. Ross v. Moffitt , 417 U.S. 600, 616 (1974); Pennsylvania v. Finl ey , 481 U.S. 551, 555(1987); Dankert v . Wharton , 7 33 F.2d 1537 ,13

1538 (11t h Cir. 1984 ). Acc ordi ngly, the federal consti tution does not requir e that the states providean attorney

to an indig ent post-conv iction petit ioner, even in capital cases. Murray
v. Giarratano , 492 U.S. 1 (1989); Pennsy lvania v . Finley , 481 U.S. at 554- 555; Ross v. Moffitt , 417 U.S. at 616; See also Cole man v. Thompson , 501 U.S. 722, 752 (1991 ). Furthermore, it is a well-s ettled in Tennessee that the scope of the right to counsel is limited and appl ies only through the fir st appeal as of ri ght. House v. St ate , 911 S.W.2d 705 (Tenn. 1995). It does not apply to post-conviction proceedings. Id ; Davis v . State , 912 S.W.2d 689, 696 (Tenn. 1995) ; Sta te v. Oates , 698 S.W.2d 79, 80-81 (Tenn. Cr. App

. 1985); State v. Wilson , 667 S.W.2d 113, 114 (Tenn. Cr. App. 1983).

Because there is no r ight to couns el under either the federal or t h e stat e constitution b eyond a criminal defendant ’s first appeal as of right, the chan cery court did not err in failing to appoint an attorney fo r Flowers in his post-conviction action in chancery court.

Flowers further contends that the chancery court erre d in denyinghis motion to be presentin court during the hearing of his ca se. We not e, however, that an individual’s Sixth Amendment right to be present at

all stage s of the trial does no t e xtend to postco nviction proceedings

. Turner v. St ate , 580 S.W.2d 797, 799 (Tenn. Crim App. 1979)

. A post-conv iction proc eeding is not a trial nor an extension of it; rather, a post-convi ction action is a whol ly coll ateral lawsuit. Id . Flowers pres ence , the ref ore, would have made no dif f erence to the outcome of this action. Thus, t he chancery court did not err in deny ing Flowers ’ motion to be present in court during the hearing of his case.

Flowers also a rgues that t he chancery court erre d in denyingFlower s’ reques t to supplement the record to includ e two additi onal issues w hich were not properly raised in the chancery court. It has long been therule that an i ssue not rais ed or litigat ed in the tri al court is wai ved. Lawrence v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983); T.R.A. P. 36(a). A party may not raise an issue for the first time on appeal. Id ; State v. Turner , 919 S.W.2d 346, 356-57 (Tenn. Cr . App. 1995); Jones v. St ate , 915 S.W.2d 1, 2-3 (Tenn. Crim. App.14

1995). Thus, the chancery court did not err in denying Flowers’ requestto supplement the record to include additional issues on appeal.

Fina lly, Flower

s contends that the chancery court erre d in dismiss ing his pet ition for writof cert iorari ho lding t hat the Board did not ac t arbitrar ily, cap riciously or in ex cess of its jurisdic

tion in making its decisi on to delay Flower s’ parole el igibili ty hearing

. Because the Tennessee legi slature has g iven the Boar d the discret ion in determi ning whe n and under what conditions prisoners servingfelony sentence s of more that two years may be released on parole and because the Board did not act illeg ally, fraudul ently, ar bitraril y or in excess of i ts jurisdi ction when it decided to po stpone Flowers’ parol e hearing unt il he received an updated psyc hological evaluation, the chancerycourt did not err in dis missing Flowers’ petition for writ of certiorari.

The decision of the chancery court is hereby affirmed. Costs on appeal are taxed to Flo wers f or whic h exec utio n ma y issue if ne cess ary.

HIGHERS, J.

CONCUR:

FARMER, J.15

LILLARD, J.