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

Briefs J anuary

12, 2004 ALLEN W. HUGHES v. TENNESSEE BOA RD OF PAR OLES

Appeal from the Chancery Court for Davidson County No. 02-2476-I Irvin H. Kilcrease, Jr., Chancellor

No. M2003-00266-COA-R3-CV - Filed January 30, 2004

The appellant fileda petition for common law writ of certiorari seeking judicial review of

a decision of the Board of Paroles to deny him parole. The trial court dismissed the petition as untimely filed. We affir m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R ., P.J., M.S., and F RANK G. C LEMENT , J R ., J., joined. Allen W. Hughes, Nashville, Tennessee, Pro Se. Paul G. Summ

ers, Attorney Gene

ral and Reporter; Michael E. Moore, Solicitor General; Mark A. Hudson, Se

nior Couns el, for th

e appellee, Ten

nessee B oard of Pa

roles. OPINION The appellant, Mr. Hughes, sought judicial review of a decision of

the Tennessee Board of Paroles denying

him parole. He filed

a petition for common law writ of cer tiorari, and that petition was ultimately dismissed because it wa s not timely filed. Actions of

the Board of Paroles are revie wable by c ommon law writ of certiorari. Hickman v. Tennessee Board of Paroles , 78 S.W.3d 285, 2 89 n. 4 ( Tenn. Ct. A pp. 2001) ; Thandiwe v. T raughber , 909 S.W.2d 802, 803 (Tenn. Ct. App. 1994). Both common law and s tatutory wri t actions are governed by

the procedu res set out in Tenn. Code Ann. §§ 27-9-101 et seq. Fallin v. Knox County Bd. of Comm’rs , 656 S.W.2d 3 38, 341 (Tenn. 1983 ); Fairhaven Corp. v. Tennessee Health Facilities Comm ., 566 S.W.2d 885, 886 (Tenn. Ct. App. 1976). Tenn. Code Ann. § 27-9-102 provides that a party a

ggrieved by

an order or judgment of a board or c ommission may have the order or judgment reviewed by

the courts by filing a

petition for writ of

certiorari in the Chancery Court “within sixty (60) day s from the entry of the order or judgment.”-2-

The sixty ( 60) day

time limita

tion for f iling a p etition fo

r writ of certior ari is mandatory

and jurisdictional. Thandiwe , 909 S.W.2d at 804. In Thandiwe , this court stated:
A petition for certiorari must be filed within sixty (60) days from and after the entry of the order or judgment of the Boar d decision complained of, in order to seek review. Tenn. Code Ann. § 27-9-102.
* * * The fail ure to file within the statutory time limits results in the Board’s decision be coming fi nal, and once the d ecision h as becom

e final, the Chanc ery

Court is deprivedof jurisdiction. Whe eler v. Ci ty of Mem phis , 68 5 S.W.2d 4, 6 (Tenn. Ct. App. 1984 ); Fairhaven Corp ., 566 S.W.2d at 887. The time requirement for filing a petition of certiorar i is analogous to the require ments of the Tennessee Rule of Appellate Procedure 4. Our courts have held, relying in part on United States v. Robinson , 361 U.S. 220, 80 S. Ct. 282, 4 L. Ed.2d 259 (1960), that

the rule is mandatory and jurisdictional. See, e.g., State v. Williams , 603 S.W.2d 157, 1 58 (Tenn . Crim. App . 1980); John Barb, Inc. v. Underwriters at Lloyds of London , 653 S.W.2d 422, 424 (Tenn. Ct. App. 1983). . . . Id

. at 804-05. See also Johnson v. Metropolitan Gov ’t. for Nashville and Dav idson Count y , 54 S.W.3d 772, 774- 75 (Tenn . Ct. App. 2 001) ( hold ing th at onc e the t ime fo r fili ng apetition for the writ had expired, the adm

inistr ati ve decision was no longer reviewa ble, and the expiration of the time limit deprived the court of subject matter jurisdiction).
In Hickman v. Tenn. Bd. of Paroles , 78 S.W.3d 285, 289 (Tenn. Ct. App. 2002), this court held that failure to file within the sixty- day limit caus ed the pa

rty filing th e petition to forfe it his or her right to judicial review and required the court to decline to exercise its jurisdiction, rather than depriving the court of subject matter jurisdiction. Regardless of which ground is jurispr udentially correct, the effect is the same: the pe tition is time-barred and must be dismissed.
Mr. Hughes does not argue that a la te-filed petition must not be dismissed. Instead, he argues that his pe ti ti on wa s t im el y fi le d b ec au se he fi le d i t w it hi n s ix ty d ays of the date he was notified of the board’s decision. The dispute centers on what event trig gers the running of the sixty day s. The statute it se lf st at es th at th e p et it io n m us t b e f il ed wi th in si xt y d ay s “from the entry of the order or judgment.” The re cord before us reflects that the B oard’s decision to deny Mr. Hughes parole w a s entered June 13, 2002. Mr. Hughes alleges he was notified of that decision on June 17, 2002. He attached to his petit

ion a docu

ment entit

led Notic e of Boa

rd Action that r e flects the entry

date of1 Mr. Hug hes asse rts he deli vered his peti ti on to t he pri son mai l no l ater

tha n Augus t 16. The Board does not dispu te tha t al lega ti on, merely tak ing the posi ti on th at t he petit ion coul d not h ave bee n del iver ed bef ore i t was si gned. Ten n. R. Civ. P. 5.0 6 pro vides:

If pap ers req uired or pe rmitted to be filed pu rsuant to the Ru les of C ivil P ro cedure are pr epared by or on behalf of a pro se lit igant incar cerated in a correctional facili ty and are n ot received by the clerk of the court unti l aft er the ti me fixed for fi ling, fil ing shallbe timely i f the papers were d elivere d to the appr opri ate in div idu al at th e cor rec ti onalfa cil ity wi th in th e t ime fi xed f or f il ing . Thi s prov isi on shall also ap ply to se rvice o f p aper by such lit igant s pursua nt t o the rul es of ci vil procedure. “Correct ional fac il it y” s hall inc lude a pri son, jai l, county workhous e or similar institutio n in which the pro se liti gant is incarc erated . Shou ld timelin ess of filing o r servic e bec ome an issue , the bur den is on the pro se liti gant to establi sh compliance with thi s provision. -3- June 13. If the date the orde r was entered trigge

red the running of the sixty da y s, the l ast day for filing the petition was August 12, 2002. Mr. Hughes signed his petition August 15, 2002. 1
Mr. Hughes relies upon Jennings v. Traughber , No. 01A0 1-95 09-CH -003 90, 19 96 WL 93763, AT * 2 (Te

nn. Ct. App . March 6 , 1996) (no Tenn. R. App. P. 11 a ppli cation filed), which includes langua

ge stat ing that because the petiti oner filed within sixty day s of being

notified t hat his appeal to the Board had been denied, the petition was timely . The cou rt in Jen nings made no mention of the da

te of ent ry of the or

der. The issu e in J

ennings was whether the petitioner’s administrative appeal extended the time for filing thepetition. Consequently, we cannot interpr et Jennings as holding that the date of notice of a board’s action should be used as the critical date for calculating the sixty days rather than the date of entry of the order.
We are compelled by

the language of

the statut e to hold that the sixty day

limit in Tenn. Code Ann. § 27-9-10 2 begin s to run on the date the order is entered. The “time for filing a common law writ of cert iorari ismeasured from the date of t he entry of the or der for which jud

icial review is sought.” Brannon v. County of Shelby , 900 S.W.2d 30, 33-34 (Tenn. Ct. App. 1994). This is not a situation where the Board failed to timely notify the petitioner of its action o r the date of that action. Mr. Hughes makes no argument that he w as prevented from filing his petition due to Board action or inaction.
We affirm t

he trial c ourt’s dis missal of t he petition for com

mon law wr

it of cer tiorari a s time barred . Costs of th

is appea l are taxed to the ap

pellant, Allen W. Hu ghes.

___________________________________ PATRICIA J. COTTREL L, JUDGE