# FILED January 15 1997 Cecil W. Crowson Ap pellate Cou rt Clerk CARL E. JORDAN, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9607- CH-00347 VS. ) ) Davidson Chancery ) No. 95-3201-II I TENNESSEE BOARDOF PAROLES, ) et al., ) ) Respondents/Appe llees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE ROBERT S. BRA NDT, CHANC ELLOR

CARL E. JOR DAN #91050 Riverbend Maximum Sec urity Institution 7475 Cockril l Bend Industri al Road Nashvil le, Tennessee 37209 Pro Se/Petiti oner/Appellant CHARLES W. BURSON Attorney Gen eral and Repor ter PATRICIA C. KUSSMANN Assistant Att orney Gener al 404 James Roberts on Parkway Nashvil le, Tennessee 37243 Attorney for Respondents/Appel lees

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

An inmate in the cu stody of the Department of Correction filed a Petiti on forWrit of Certiorari to c hallenge the P arole Board’s refusal to grant hi m parole. The ChanceryCourt dismi ssed t he Petition for fail ure to comply with the time limitati ons forfiling. We affirm the dismissal on the alternateground of failu re to state a claim upon which r

elief can be gr

anted.

I
.
On January 23, 1981, Carl E. J ord an pled guil ty to agg ravated ra pe, armed robbery and second degree murder, and was sentenced to three concu r rent forty year sentences. On May 2, 1986, the Co urt of Criminal Appea ls vacated the g uilty plea, because i t found that the tri al court had fail ed to fully comply w ith the proceduresrequired by Tenn.R.Cr im P. 11(c) to determine w hether a guilty plea is a voluntary

and knowingone.
On Septemb er 23, 1986, M r. Jor dan ag ain pl ed gui lty to the s ame crime s, and was sen tenced to three concurrent sent ences of thirty-five year s. Mr
. Jordan became eligi ble for parole consideration, and a h earing was conduct ed on April 11, 1995. On May 2, 1995, parole was declined. The Board cited hig h risk and the seriousnes s of his offense as its reasons for decl ine.

Mr. Jordan followed the procedures est ablished by the Paro le Board to applyfor appellate review of its dec is ions. His request for a n administrati ve appeal was denied on August 24, 1995 , and he learned of th e decis ion on Se ptember 1, 1995. On October 17, 1995, Mr. Jor dan filed his Peti tion for Writ of Certiorari in the ChanceryCourt ofDavidson County. The state filed a Motion to Dismiss the Petition- 3 -

on the grounds that it wa s not filed w ithin the jur isdictional time limit s et out in Tenn. Code Ann. § 27-9-102, and t hat the nature of the r eview sought was outside th e scope of the common law writ of certiorari. The court dismis sed the peti tion on the jurisdict ional groun d. This appeal foll owed.

II.

Tenn. Code Ann. § 27-9- 102 requires that a Petition for W rit of Certiorari be filed wit hin sixt

ydays of the entry of the order or judgment com plained of. Failure to file with in this stat utory time limit depri ves the tr ial court ofjurisdic tion. Fairhaven Corp. v. Tennessee H

ealth Facil

ities Commission, 566 S.W.2d 885, 887 (Tenn. App. 1976). There h as been some uncertainty as to how the time limit is to be applied in cas es involving the Tennessee Parole Board. The question that usually arises is whether the sixty day limit begi ns at the time of the P arole Board’s initial decision, or if it is tol led until administrative a ppellate rev iew is exhausted. See for example, Fite
v. State of Tennessee , Appeal No. 01-A-0 1-9508-CH-00362 (Filed Nashville, February 28, 1996), Sams v. Traughber , Appeal No. 01- A-01-9603-CH -00133 (Fil ed Nashvil le, August 14, 1996).

On March 6, 1996, the Western Section of this court issued an opini on in a paro le rev

ocati on acti on that

held t hat thetime limit cannot begin to run until the decision of the Parole Board becomes final. Jennings v. T raughber

, Appeal No. 01A01-9509-CH- 00390. If a prisoner appe als a refusal t o grant him pa role, the Board’s decision does

not become final unti l the Boa rd renders a deci sion on that appeal. Tenn. Code Ann. § 40- 28-105(d). T hus, if c onsidered under the rule announced in Jennings , the appellant’s petition would be considered timely because it was filed less than sixty days after the Board rejected his appea l.- 4 - The State argues

however , that th e cou rt’s rul ing in Jennings v. Traughber

is inapplicable to this case, because it was issued after the Chancery Court dismissed Mr. Jordan’s petition. This is certainly a valid argument, and mi ght wel l be conc lusive if the Jennings court had reversed a well-established rule. Ho weve r because o f the uncertainty of the l aw prior to the Jenning s opinion, we decline to uphold the Chancery

Court’s di smissal on j urisdicti onal grounds, and instead review the sufficiency of Mr. Jordan’ s petition under the requir

ements of the wr it.

III.

As this court has stated many times, the sco pe of a W rit of Certiorari is quite limi ted: “Itcovers only an inquir y int o whether t he Board has exceeded its jurisdi ction or is acting ille ga ll y, fraudulentl y or arbi trari ly. Conclusory terms such as ‘arb itr ary and capricious’ will not entitle a petitioner to th e wr it. At the risk of overs i mplification, one may say t hat it is not the correctness of the decision that is subje ct to judic ial re view, but the manner in which the decision is reache d.” Powell v. Parole Eligibility Review Board , 878 S.W .2d 871, 873 (Tenn . App. 1994).

Mr. Jordan’s Peti tion states i n several places that the Board’s actions in his case were unconstituti onal and in v iolation of law , but as th e quoted passage abo ve indicates, s uch a statement does not entitle hi m to th e writ u nless it can be supported by a claim of some substance.

Mr. Jordan fi r st argues t hat he has a const itutionally protected li berty interest in parol e. The U nited S tates S upremeCourt hasstated that a pr isoner has no constit utio nal rig ht to be relea sed p rio r th e ex piratio n of a valid s entence, butthat a state’s p aro le statutes l aw may c reate a protect ed liberty interest. Greenholtz v. Inmates of the Nebrask

a Penal and

Correcti onal Compl

ex , 442 U.S. 1, 99 S. Ct. 2100 60 L.Ed 688 (1979).- 5 - Mr. Jordan relies upon the case ofMayes v. Trammel, 751 F.2d 175 (6th Cir. 1984) wherein the Federal appeals court found that t he Tenn essee parole schemeas it then ex isted, create d a liberty entitlement protected by due process, by virtueof the followin g languag e, found in Rule 1100- 1-1-.06 of the Rules of Tennessee Board of Paroles:

“The Board operates under the presumpti on that each resi dent who is eligibl e for parole is a worthy

candi date and thus the Board presumes that he wi ll be releas ed on parole when he is first eligibl e. Before granting or denyingpar ole , the Board shal l apply th e following factors toeach eligi ble resident to assist i t in determini ng whether such residen t will live and remain at li berty w ithoutviol ating the law or

the conditions

of his parole.” The Parole Board subsequently amended its rules to eliminate the first sentence of the above paragraph, and the appeals court recog nized that t he amended rule eliminated the constituti onally-pr otected liberty

interest. Wright v. Tram mel , 810 F.2d 589, 591 (6th Cir. 1987). See also Wells v. Board of Paroles , 909 S.W.2d 826 (Tenn. App. 1995).

The appellant argues that since he co mmi tted his cri mes prior to the decision in Wright

v. Trammel

, it is a violation of the protections against ex post facto laws to deprive him of the benefits of the prior r ule. We note at the outset that Wright
v. Tramm el

did not say

that the amended rul e could only be applied to c rimes committed after it was put intoeffect, but th at it applied to parole hearings h eld after its effective date of April 10, 19 85.

In rega rd to t he ex post fac to arg ument, t he appel lant me ntions tw o cases where the courts have said that changes in rules relating to early release were violatio ns of ex post facto pr ohibitions, bu t neither cas e is on point w ith the one before us. In Akins v. Sno w, 922 F. 2d 1558 (Eleventh Circuit 1991), the f ederal appeals court ruled that the Georgia Board of Paroles coul d not reduce the frequency of paro le hearings from annually to once every eight years for prisoners who w ere sentenced when the earlier

rule was in effect. In Weaver

v. Gra ham, 450 U.S. 24, 101 S .Ct. 960,- 6 -

67 L.Ed.2d 17 (1981) the Supreme Cour t prohibited t he Florida D epartment of Correction s from reducing the amount of good time and honor time that i nmates could accumulate each mo nth bel ow the levels that were in place at the time of sen tencin g.

Howeve r in a later ca se involv ing frequenc y of parole hear ings, the SupremeCourt held that not every change in parole ru les t o the possible detriment of previously convicted offenders can be con sidered an ex post facto violatio n. T he court stated that thequestion was the degree of risk that the change would increase the measure of punishm ent retroactively. If it can be considered highly sp eculati ve that the petitioner would be released earlier becau se of the applicatio n of the prior rule (as it does in th e present case) , then the use of the l ater rule would not vi olate the ex post facto prohibi tion. See Californi a Dept. Of

Correcti ons v. Morales , 514 U.S. __, 115 S.Ct, 1597, 131 L.Ed 2d 58 8 (1995). See also Kaylor v. Br adley , 912 S.W.2d 728 (Tenn. App. 1995).

IV
.

Mr. Jordan also contends that i t wasunlawful to d eny him parol e on the ground of the serio usness of his offense, and that i t was li kewise unl awful not to supplyhim with a more detailed statement of the Board’s reasons for its actions , and of the facts it relied upon in reaching its decision. We have recently dealt with both of these issues i n some detail, s o we w ill only briefly respond to them here.

One of the factors the Board is statu torilyobligated t o take into account in parole decis ion s is the s eriousness of the crime(s) for which t he prisoner w as sentenced. Tenn. Cod e Ann. § 40-35-503 states that:

(b) Release on parol e is a privilege and not aright, and no inmate convicted shall be granted par ole if the board finds that: (1) . . .- 7 - (2) The release from cu stodyat the time would depreciate the s er iousness of the cr ime of which t he defendant stands conv icted or pro mote disres pect for t he la w.

Althou gh some federal courts have criticized the use of the seriousness of the crime as a factor in parole consideration, the Ten nessee legislature is persuaded otherwis e, a nd we have recently upheld the rig ht of the legis lature to require the Parole Board to consi der that factor. S ee South v. Board of Paroles , Appeal No. 01A- 01-9609-CH- 00393 (Filed N ashvill e, December 11, 19 96).

Further, although some j urisdicti ons require their Pa rol e Boards to furnish prison ers wit h a detailed statement o f the reasons fo r declining parole, such is not the case in Tennes see. See Mosley v. Board of Paroles , Appeal No. 01- A-01- 9604-CH-00162 (Filed Nas hville, November 1, 1995).

V.

Mr. Jordan’s final argument is that the Parole Board erred in applying the wrong standard for reviewing his eligibility for release as a sexual offe nder. Al though sex offenders were treated the same as all other off enders with regard to parole eligibil ity prior to 1957, our legislature has since passed a number of statutes for the purpose of preventingthe re lease of sex offenders wi thout s ome sort of mental heal th evaluation to determine whether they are at risk for offending again. Se e Tenn. Code Ann. §§ 40-28-116(a)(2), 40-35 -503(4)(c) and (d).

Accordin g to Attorney Gen eral Opinion 90-10 (January 29, 1990) the variati ons in these statutes and the d ifferences in the d ates they were enacted require the application of slightly different standards of evaluation before a sex offender can be released, depend ing on the date of his crimes.- 8 - Mr. Jordan discusses in detail the vari ous statutes, and the categori es they have creat ed among sexu al offenders, an d argues that the wrong standard was applied to him, because of a comment writt en by the hear ing officers w ho conducted his parole hear ing. The comment, whic h i s found in a document entitled Noti ce of Board Action, states

“Psychol ogical does

not track l anguage,” a nd was app ar ently meant to provi de another reason for decl ining parol e. Putting aside for a moment the question of what that l anguage real ly means, and how it relates to the categories discusse d by Mr. Jordan, w e note that the Boar d modified the recommendat ions of the hearing officers befo re signing off on them, and eliminated the quoted lang uage. According to t he fi nal noti ce of the B oard ’s a cti on, t he reaso ns fo r declinin g parole to Mr. Jor

dan were hi gh risk and the serious ness of his offense.

Since only one of the t hree crimes of which Mr . Jordan was convic ted can be considered a sexual offense, and the other cri mes were mur der and armed robbery, we must conclude from this recor d thateven if the hearing office rs erred in applying the wrong sortof evaluation standard for his r ape convict ion (and it is not at all clear that they did ) it must be considered harmless er ror, in li ght of subsequen t Board action and the seriousn ess of Mr. Jordan’s other crimes.

VI.

We affirm the dismissa l of Mr. Jordan’s peti tion, on the g round of failure to state a c lai m upo n wh ich rel ief can be gran ted. Remand this cause to the Chance ry

Court of Dav idson County for further proce edings consi stent wit h t hi s opinion. Tax t he costs on appeal to the appellant.- 9 - _____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE
CARL E. JORDAN, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9607- CH-00347 VS. ) ) Davidson Chancery ) No. 95-3201-II I TENNESSEE BOARDOF PAROLES, ) et al., ) Affirmed ) and Respondents/Appe llees. ) Remanded



### J U D G M E N T
This cause came on to be heard upon the record on appeal from the ChanceryCourt o f David son County, and briefs of the part ies; upon consi deration whe reof , this Court

is of the opinion that in the decr ee of the Chancello r there is no reversible error.

In accordance w ith the opinion of the Cou rt filed herein, it is, therefore, ordered and decreed by this Cour

t that the de cree is affirmed. Th e cause is remanded to t he C hanc ery Cou rt of Davidson C ounty for the enforcement of the decr ee an d fo r the colle ctio n of the c osts accru ed be low.

Costs of t his appea l are taxed against Carl E. Jordan, for which execu tion may is sue i f ne cess ary.

ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_________________________________ BEN H. CAN TRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., J UDGE