IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 03, 2014

ANDREW J. BRADEN, III v. TENNESSEE BOARD OF PROBATION, ET

AL.

Appeal from the Chancery Court for Davidson County

No. 13430II Carol L. McCoy, Chancellor

No. M2013-02036-COA-R3-CV - Filed November 4, 2014

This is a pro se appeal from a denial of parole. Inmate/Appellant avers several problems

surrounding his parole hearing that he claims violate his due process and equal protection

rights, and violate the ex post facto constitutional prohibition. Because a prisoner has no

liberty interest in release on parole before the expiration of his sentence, due process

protections do not attach to parole determinations. Because, at the time of Appellant’s crime

and conviction, the law regarding parole gave total discretion to the Board and authorized

denial if the Board found that parole would depreciate the seriousness of the crime

committed, application of this ground for denial of parole does not violate ex post facto

prohibitions. Because Appellant has failed to prove that race was an issue in the Board’s

decision to deny him parole, no equal protection violation was shown. Consequently, we

affirm the trial court’s dismissal of the petition upon grant of summary judgment. Affirmed

and Remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is

Affirmed and Remanded

KENNY W. ARMSTRONG, J., delivered the opinion of the Court, in which ARNOLD B.

GOLDIN, J., joined. J. STEVEN STAFFORD, P.J., W.S., filed a dissenting opinion.

Andrew J. Braden, III, Only, Tennessee, Pro Se.

Robert E. Cooper,Jr., Attorney General and Reporter, Arthur Crownover, II, Senior Counsel,

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Civil Rights and Claims Division, Nashville, Tennessee, for appellees, Tennessee Board of

Probation and Parole, Charles Traughber, and Amanda Fisher.

OPINION

Andrew J. Braden, III (“Appellant”) is an inmate of the State of Tennessee Department of

Correction. He is African-American. In 1981, Mr. Braden was convicted of Murder 1 and

Robbery Armed with a Deadly Weapon. He received a life sentence for Murder 1. For the

robbery charge, Mr. Braden received a 35-year sentence, which expired on November 5,

2005. In addition, Appellant received a five-year sentence for Receiving Stolen Property;

this conviction resulted from Mr. Braden being in possession of guns during a traffic stop,

which occurred a few weeks before the eventsthat led to the murder and robbery convictions.

Mr. Braden’s Murder 1 and Robbery Armed with a Deadly Weapon convictions arose out

of incidents that occurred on April 4, 1981. On that date, Mr. Braden and his co-defendant

committed Armed Robbery of a fast-food restaurant. While fleeing the scene, they were

observed by a Columbia, Tennessee police officer driving recklessly. The officer initiated

a traffic stop, during which a scuffle ensued. Mr. Braden wrestled the officer’s service

revolver from him and fired multiple shots into the officer’s body, causing his death.

Appellant first became eligible for parole in 2002 and received an initial parole grant hearing

on October 8, 2002. At that time, the Tennessee Board of Probation and Parole (the

“Board”) declined Mr. Braden parole due to the seriousness of his offense. Mr. Braden

received his second parole review hearing on October 4, 2007. The Board again denied

parole based upon the seriousness of the offense. Mr. Braden’s next parole hearing was held

on October 4, 2012, and this hearing is the subject of the instant appeal. Charles Traughber,

the Chairman of the Board, conducted Mr. Braden’s October 2012 hearing. According to

Chairman Traughber’s affidavit, he “conducted the hearing and voted to decline parole, due

to the seriousness of the offense. . . . Board Members Patsy Bruce, Lisa Jones, and Yusuf

Hakeem adopted my vote and the decision became final on October 11, 2012.” By letter of

October 16, 2012, Mr. Braden was notified of the Board’s decision. Pursuant to its authority,

under Tennessee Code Annotated Section 40-35-503, the notification letter specifically

stated that the Board’s decision to deny parole was based upon its finding that “[t]he release

from custody at this time would depreciate the seriousness of the crime of which the offender

stands convicted or promote the disrespect of the law.”

On November 8, 2012, the Board received Mr. Braden’s request for an appeal hearing. As

grounds for his appeal request, Mr. Braden averred that, “[a]t the time of my conviction[,]

the seriousness of offense statute (rule/guideline) was not included in the Tennessee Parole

Board Statute. . . .” Mr. Braden’s request for appeal was denied by letter dated January 22,

2013.

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On March 26, 2013, Appellant filed a Petition for Judicial Review under Common

1

 We pause to address what, at first, appears to be a timeliness issue concerning Mr. Braden’s 1

petition for writ of certiorari. Tennessee Code Annotated Section 27-9-102 provides the time for filing a

petition for writ of certiorari:

Such party shall, within sixty (60) days from the entry of the order or

judgment, file a petition of certiorari in the chancery court of any county in

which any one (1) or more of the petitioners, or any one (1) or more of the

material defendants reside, or have their principal office, stating briefly the

issues involved in the cause, the substance of the order or judgment

complained of, the respects in which the petitioner claims the order or

judgment is erroneous, and praying for an accordant review.

This sixty-day statute of limitations “is mandatory and jurisdictional, and the failure to file a petition within

that period of time deprives the court of subject matter jurisdiction.” Gore v. Tennessee Department of

Correction, 132 S.W.3d 369, 379 (Tenn. Ct. App. 2003). Accordingly, although the issue of the timeliness

of the petition for writ of certiorari was not raised in the trial court, or in this appeal, it is incumbent upon

this Court to address, sua sponte, any question concerning jurisdiction. We note that the date that the TDOC

Commissioner denies the prisoner’s appeal is the latest possible date on which the statute of limitations

beginsto run. See, e.g., Wilson v. Tennessee Department of Correction, No. W2005–00910–COA–R3–CV,

2006 WL 325933, at *5 (Tenn.Ct.App. Feb. 13, 2006). Here, the Board denied Mr. Braden’s appeal by letter

of January 22, 2013. According to the foregoing authority, the 60-day statute of limitations for filing the

petition for writ of certiorari would run from that date.

Although Mr. Braden’s petition for writ of certiorari was not stamped “filed” in the trial court until March

26, 2013, the “Verification” and “Notary” sections of the petition indicate that it was submitted on March

22, 2013. It is undisputed that Mr. Braden was incarcerated at the time he filed his petition. Accordingly,

Rule 5.06 of the Tennessee Rules of Civil Procedure, commonly referred to as the “prisoner mailbox rule,”

is triggered. The rule states in relevant part:

If papers required or permitted to be filed pursuant to the rules of civil

procedure are prepared by or on behalf of a pro se litigant incarcerated in

a correctional facility and are not received by the clerk of the court until

after the time fixed for filing, filing shall be timely if the papers were

delivered to the appropriate individual at the correctional facility within the

time fixed for filing. This provision shall also apply to service of paper by

such litigants pursuant to the rules of civil procedure. “Correctional

facility” shall include a prison, jail, county workhouse or similar institution

in which the pro se litigant is incarcerated. Should timeliness of filing or

service become an issue, the burden is on the pro se litigant to establish

compliance with this provision.

Tenn. R. Civ. P. 5.06. Furthermore, Tennessee Rule of Civil Procedure 6.01provides, in relevant part, that:

(continued. . .)

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Law Writ of Certiorari in the Chancery Court for Davidson County. The petition was filed

2

against the Board, Chairman Traughber, and Amanda Fisher, the Parole Hearing Director

(continued. . .)

In computing any period of time prescribed or allowed by these rules, by

order of court, or by any applicable statute, the date of the act, event or

default after which the designated period of time begins to run is not to be included. The last day of the

period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday as defined in Tenn.

Code Ann. § 15-1-101, or, when the act to be done is the filing of a paper in court, a day on which the office

of the court clerk is closed or on which weather or other conditions have made the office of the court clerk

inaccessible, in which event the period runs until the end of the next day which is not one of the

aforementioned days. 

Based upon the foregoing rules, we would not count January 22, 2013 (as that was the date the statute of

limitations began to run). Accordingly, the 60 day statute of limitations would have expired on March 23,

2013. However, March 23, 2013 was a Saturday. Thisfact would extend the 60 days (under Tennessee Rule

of Appellate Procedure 21(a)) to the following Monday, March 25, 2013. Because Mr. Braden was

incarcerated, Tennessee Rule of Civil Procedure 5.06 operates to extend the tolling date further by replacing

the received/filed date with the date the petition was presented for mailing from the prison. As noted above,

the "Verification" on the petition indicates that it was “submitted” on March 22, 2013. This would be within

the 60 day period. However, even if the “verification” on the petition is not sufficient proof of presentation

for mailing, we know that the document was received (or at least file stamped) on March 26, 2013. Because

Mr. Braden was incarcerated on March 26, 2013, he could not have hand-delivered his petition. Accordingly,

if the statute of limitations expired on March 25, 2013, it is a logical inference that Mr. Braden mailed his

petition on or before March 25, 2013 if the petition was received and stamped by the clerk on March 26,

2013. Of course, we are cognizant of the Rule 5.06 language that places the burden on the prisoner to

establish timeliness of his or her filing, i.e., “[s]hould timeliness of filing or service become an issue, the

burden is on the pro se litigant to establish compliance with this provision.” Here, however, timeliness was

not a issue that was raised in the trial court or on appeal. Nonetheless, because we have a duty to address

any issues that affect jurisdiction, and because, on its face, the March 26, 2013 file date of the petition

appears to be late, we have attempted to parse the relevant procedure in reaching our determination that

jurisdiction lay with the trial court in this case.

Persons dissatisfied with the Board's decisions may obtain judicial review using a petition for

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common law writ of certiorari. As discussed, infra, this petition limits the scope of review to a determination

of whether the Board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. Turner v.

Tennessee Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App.1999); South v. Tennessee Bd. of Paroles,

946 S.W.2d 310, 311 (Tenn. Ct. App. 1996); Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873

(Tenn. Ct. App. 1994). The petition does not empower the courts to inquire into the intrinsic correctness of

the Board's decision. Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999); Turner, 993

S.W.2d at 80. Thus, the courts will not use the common law writ to grant relief when the Board's decision

was arrived at in a constitutional and lawful manner. Tenn. Code Ann. § 40–28–115(c); Arnold v. Tennessee

Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997); Powell, 879 S.W.2d at 873.

4
(“Ms. Fisher,” and together with the Board and Chairman Traughber, “Appellees”). In his

3

petition for writ of certiorari, Mr. Braden averred, inter alia, that the Appellees “violated the

[Board] Rules, Policies and Procedures” by “demonstrat[ing] bias in favor of the victim[’]s

family and friends who had appeared at the hearing to protest Mr. Braden’s possible parole.”

In addition, Mr. Braden’s petition alleged that the Board’s use of the “statutory catchall

‘Seriousness of the Offense’ as a reason to deny him parole was a violation of the statutes

that were in effect at the time Mr. Braden committed the crime. . . .” In his petition, Mr.

Braden also indicated that he had requested certain statistics, pursuant to the Public Records

Act, “to demonstrate that the [Board] arbitrarily and capriciously applies the ‘seriousness of

the offense’ criteri[on] to deny parole to black males who have committed crimes against

white victims while releasing white prisoners who have committed crimes against black or

white victims.”

In response to Mr. Braden’s petition, on June 12, 2013, the Appellees filed a joint motion for

summary judgment. As grounds for their motion, Appellees averred that Mr. Braden’s

“equal protection claim should be dismissed as conclusory and not supported by the

evidence.” Furthermore, Appellees asserted that Mr. Braden had failed “to state an equal

protection claim regarding comparisons to white inmates.” In addition, the Appellees noted

that, “[i]n 1981, seriousness of offense was a parole standard for Class X felons; thus no ex

post facto violation.” In support of their motion, Appellees filed Chairman Traughber’s

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affidavit, and a statement of undisputed material facts. Mr. Braden opposed the motion for

summary judgment by filing his own affidavit and version of undisputed facts. In his

affidavit, Mr. Braden averred, inter alia, that before the October 2012 parole hearing began,

“Charles Traughber engaged in ex parte communication with the victim’s family and the

individuals who appeared in opposition [to Mr. Braden’s parole].” Noting that Chairman

Traughber had denied any ex parte communication in his affidavit, see discussion infra, Mr

Braden cited the recording of the hearing, wherein Chairman Traughber allegedly stated that

“I’ve asked that we have five representative from each [side, opposition and support] to

speak and we hear from support first.” (Bracketed language in original). Based upon this

statement, Mr. Braden argued that, “[i]f Charles Traughber did not communicate with the

participants prior to the hearing beginning, then when did he ask for just five people from

each side to speak?”

 Chairman Traughber and Ms. Fisher are sued in their official capacities only. 3

 As explained in Bryan Garner, A Dictionary of Modern Legal Usage 342 (2nd ed.1995), the

4

term “ex post facto” translates to “after the fact.” The phrase is used “in the sense of ‘retroactive,’ as in ex

post facto laws. E.g., ‘Application of the newly enacted burden to this defendant runs afoul of the ex post

facto prohibition [i.e., the prohibition against enacting laws that punish retroactively].’” Id.

5
Mr. Braden’s affidavit also disputed Chairman Traughber’s statement that he did not engage

in discrimination when deciding Mr. Braden’s case. Specifically, Mr. Braden stated that:

Mr. Traughber alleges that parole decisions are made on a case

by case basis, and that I am not similarly situated to other

offenders since the facts and circumstances of each offender’s

case are unique. This is false. I am similarly situated to the

other offenders that I used as examples in the original filing

documents [Mr. Braden is referring to Exhibit 5 to his petition

for writ of certiorari. In this exhibit, Mr. Braden has allegedly

compiled information gleaned from his public records request.

The exhibit is a list of five prisoners, including himself. Three

of the prisoners are Caucasian, and two are African-American.

All five prisoners were allegedly convicted of shooting a police

officer. The “status” of the prisoners is listed. Each of the

Caucasian prisoners’ status is listed as “paroled”; each of the

African-American prisoners’ status is listed as “incarcerated.”].

Each of us killed a law enforcement officer during the course of

a robbery or burglary. The ONLY appreciable difference

between myself and these other prisoners is that I am black and

they are white.

(Emphasis in original).

Following a hearing on the Appellees’ motion for summary judgment, the trial court entered

an order on September 25, 2013. The trial court granted the motion for summary judgment

on the following grounds, as stated in the order:

While the Petitioner has established that he is a black male and

thus, a member of a protected group, he has failed to show that

he has been discriminated against based on race.

* * *

The Petitioner’s argument that proper procedure was not

followed at his parole hearing is not persuasive. The Court

notes that parole is a privilege and not a right. . . . Without such

a liberty interest, due process does not attach, and there are no

constitutionally required procedures for a parole hearing, as

opposed to a hearing on parole revocation.

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Even if the Petitioner could demonstrate that the

Chairman of the Parole Board engaged in an ex parte

communication with the victim’s relatives, it would not provide

a basis for reversing or vacating the Board’s legally supported

decision to deny parole under the alleged facts. . . . The

Tennessee Supreme Court has held that the Board may consider

“seriousness of the offense” when determining whether release

on parole is appropriate. . . . Thus, the Board had a valid

statutory basis underlying its decision. Further, in 2009, the

Petitioner received two Class A disciplinary actions for

conspiring to violate state law— Larceny of Commissary and

Coercing a Witness. Taking these factors into account, the

Court cannot second guess the decision of the Board to deny

parole.

The trial court also granted the motion for summary judgment upon its finding that there was

no ex post facto violation based upon the Board’s use of the “seriousness of the offense”

criterion as a basis for its denial of parole. As discussed, infra, the trial court cited the law

that was in effect in 1981, at the time Mr. Braden committed his crimes. Contrary to Mr.

Braden’s position, and as discussed below, the applicable law, i.e., the 1981 version of the

statute, did allow for consideration of the seriousness of the prisoner’s crime when

considering parole. Based upon these grounds, the trial court granted summary judgment as

a matter of law, thus upholding the Board’s decision to deny Mr. Braden parole.

Mr. Braden appeals. He raises three issues for review, as stated in his brief, and slightly

modified below:

1. The [Appellees] violated the Board’s Rules and Regulations

when [they] demonstrated bias in favor of the protestors who

had appeared at Mr. Braden’s parole hearing.

2. The [Appellees] violated Mr. Braden’s right to due process

by denying him parole on the ground of “seriousness of the

offense”.

3. The application of Tennessee Code Annotated Section 40-35-

503(b)(2), without any guidelines determining its application or

use, allows the Board to engage in demonstrable racism without

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appearing to do so.

5

We are cognizant of the fact that Appellant is an inmate in a correctional facility and is

self-represented in this case. However, it is well-settled that “pro se litigants are held to the

same procedural and substantive standards to which lawyers must adhere.” Brown v.

Christian Bros. Univ., No. W2012–01336–COA–R3–CV, 2013 WL 3982137, at *3 (Tenn.

Ct. App. Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). As explained by this Court:

There has been some confusion in the record as to whether Mr. Braden’s appeal was properly 5

filed. Mr. Braden filed his notice of appeal, titled “Notice of Intent to Appeal,” on August 27, 2013, which

was before the order appealed was entered on September 25, 2013. On September 24, 2013, this Court

entered an order compelling Mr. Braden to either (1) pay the full amount of litigation tax, (2) comply with

the statutory mandate by submitting the required documentation and partial payment; or (3) to show cause

why the appeal should not be dismissed. Mr. Braden did not comply with the September 24, 2013 order. 

Consequently, on October 17, 2013, this Court entered an order dismissing the appeal.

While the foregoing procedure was pending in this Court, Mr. Braden filed a motion to clarify his indigent

status in the trial court, and the trial court had not yet ruled on this motion when this Court dismissed the

appeal. By order of October 22, 2013, the trial court explained:

As a preface to [the September 25, 2013 final order], the court had issued

a March 28, 2013 order requiring [Mr. Braden] to make a partial payment

of $28.39 in orderto proceed in forma pauperis. [Mr. Braden] provided this

payment in a letter dated April 2, 2013. Accordingly, in the Order of

September 25, 2013, the court stated that “as the Petitioner has submitted

all necessary forms and has made a partial filing fee payment as required

by Tenn. Code Ann. §41-21-807, this case will be allowed to proceed.” 

The court here clarifies that [Mr. Braden] was allowed to proceed in forma

pauperis in the present case.

As stated above, this court did not issue a final order in this case

until September 25, 2013. It appears to the Court that [Mr. Braden] may

not have received a copy of the final order. It also appears that [Mr.

Braden’s] appeal may have been prematurely dismissed.

Following entry of the foregoing order in the trial court, on October 30, 2013, Mr. Braden petitioned this

Court with a motion to reconsider the dismissal of the appeal. Upon due consideration, we entered an order

on November 7, 2013, wherein we noted that: (1) the prematurely filed notice of appeal was sufficient to

perfect Mr. Braden’s appeal pursuant to Tennessee Rule of Appellate Procedure 4(d) (“A prematurely filed

notice of appeal shall be treated as filed after the entry of the judgment from which the appeal is taken and

on the day thereof.”); (2) Mr. Braden had provided documentation sufficient to satisfy the requirements of

Tennessee Code Annotated Section 41-21-807; (3) although Mr. Braden’s evidence of compliance with

Tennessee Code Annotated Section 41-21-807 was not timely, the “tardiness may have been due to an error

on the part of the courts related to the premature filing of his Notice of Appeal, which started the clock

running on the payment of filing fees even before a final order was filed in the court below.” Based upon

these findings, we granted Mr. Braden’s motion and reinstated his appeal.

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Parties who decide to represent themselves are entitled to fair

and equal treatment by the courts. The courts should take into

account that many pro se litigants have no legal training and

little familiarity with the judicial system. However, the courts

must also be mindful of the boundary between fairness to a pro

se litigant and unfairness to the pro se litigant's adversary. Thus,

the courts must not excuse pro se litigants from complying with

the same substantive and procedural rules that represented

parties are expected to observe.

Jackson v. Lanphere, No. M2010–01401–COA–R3–CV, 2011 WL 3566978, at *3 (Tenn.

Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.

App. 2003)).

We note at the outset that the standard of review under a common law writ of certiorari is

very narrow; it covers only an inquiry into whether the Board has exceeded its jurisdiction

or has acted illegally, fraudulently, or arbitrarily. Settle v. Tennessee Dept. of Correction,

276 S.W.3d 420, 425 (Tenn. Ct. App. 2008) (citing Powell v. Parole Eligibility Review Bd.,

879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). This Court, like the trial court, does not review

the correctness of the decision, but only considers the manner in which the decision was

reached. Id. If the Board reached its decision in a constitutional or lawful manner, then the

substantive decision is not disturbed. Id.

This case was adjudicated upon the granting of summary judgment in the trial court. A trial

court’s decision to grant a motion for summary judgment presents a question of law. Our

review is, therefore, de novo with no presumption of correctness afforded to the trial court’s

determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court must make a

fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied.

Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010).

When a motion for summary judgment is made, the moving party has the burden of showing

that “there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. According to the Tennessee

Legislature:

In motions for summary judgment in any civil action in

Tennessee, the moving party who does not bear the burden of

proof at trial shall prevail on its motion for summary judgment

if it:

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(1) Submits affirmative evidence that negates an essential

element of the nonmoving party's claim; or

(2) Demonstrates to the court that the nonmoving party's

evidence is insufficient to establish an essential element of the

nonmoving party's claim.

Tenn. Code Ann. § 20-16-101 (applying only to claims filed after July 1, 2011).

Furthermore, in the recent case of Smith v. UHS of Lakeside, Inc., et al., No.

W2011–02405–SC–R11–CV, ---- S.W.3d ----, 2014 WL 3429204 (Tenn. July 15, 2014), the

Tennessee Supreme Court unanimously held that trial judges must explain their reason for

granting or denying a motion for summary judgment. The Court noted that deciding a motion

for summary judgment is a “high judicial function,” and held that requiring the court to state

its grounds “promotes respect for the judicial system” and ensures the decision is “the

product of the trial court’s own independent analysis.” Id. at *8. Although the order

appealed in this case was entered before the ruling in Smith, we acknowledge that the trial

court did a thorough job of explaining its reasons for the grant of summary judgment in this

case. Such specific explanation as is found in this order facilitates our appellate review and

aids us in the speedy and just resolution of the appeal.

As discussed briefly above, Mr. Braden’s assertion that the Board erred in denying him

parole is based upon three grounds: (1) violation of his equal protection rights; (2) the

Board’s alleged failure to follow proper procedure (i.e., that Chairman Traughber engaged

in ex parte communication at the parole hearing); and (3) that the Board’s ground for denial

of parole, i.e., “seriousness of the offense,” was an ex post facto application of the law. We

will address each of these grounds against the record.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that a state may not

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend XIV. Although prisoners are not a suspect class, Wilson v. Yaklich, 148 F.3d 596,

604 (6 Cir. 1998), the Equal Protection Clause protects inmates from invidious

th

discrimination based upon race. See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Lee

v. Washington, 390 U.S. 333 (1968). To establish a violation of the Equal Protection Clause,

an inmate must show that the defendants purposefully discriminated against him or her.

McClesky v. Kemp, 481 U.S. 279, 292 (1987); General Bldg. Contractors Ass’n, Inc. v.

Pennsylvania, 429 U.S. 252, 265 (1977). Such discriminatory purpose must be a motivating

factor in the actions of the defendants. Copeland v. Machulis, 57 F.3d 476, 480 (6 Cir.

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1995).

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Based upon the foregoing authority, in order to establish an equal protection violation, Mr.

Braden has the burden to prove that he is a member of a protected class, and that he has been

intentionally discriminated against because of his membership in that class. McMahon v.

Tennessee Dept. of Correction, No. M2005-01625-COA-RC-CV, 2007 WL 2198209, at *3

(Tenn. Ct. App. July 26, 2007) (citing Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6

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Cir. 1990)). Although some factual bases for a 42 U.S.C. §1983 claim may be set forth in the

pleadings, see Chapman v. City of Detroit, 808 F.2d 459 (6 Cir. 1986), it is well settled that

th

a complaint alone is not sufficient to state a cause of action under 42 U.S.C. §1983. Smith

v. Rose, 760 F.2d 102 (6 Cir. 1985). In his petition, Mr. Braden claims that the Board

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“arbitrarily and capriciously applie[d] the ‘seriousness of the offense’ criteri[on] to deny

parole to black males who have committed crimes against white victims while releasing

white prisoners who have committed crimes against black or white victims in an egregious

demonstration of racial bias. . . .” This conclusory statement is not sufficient to state an equal

protection claim. Rather, Appellant has the burden to provide facts that demonstrate that it

is more likely than not that he has been discriminated against due to race. Ustrack v.

Fairman, 781 F.2d 573, 576 (6 Cir. 1986). In other words, Mr. Braden must set forth facts

th

that show, or from which it might be reasonably inferred, that he was the victim of

purposeful discrimination due to his race. McClesky, 481 U.S. at 292; Washington v. Davis,

426 U.S. 229, 240 (1976). In this regard, Mr. Braden’s burden is very high. As succinctly

explained by the Federal District Court for the Northern District of Ohio:

To succeed on a claim challenging a parole release decision and

the broad discretion afforded the Parole Authority for purposes

of establishing a violation of equal protection, a complaining

party must show “exceptionally clear proof” that the board

abused its discretion. McCleskey v. Kemp, 481 U.S. 279, 297,

107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Specifically, the

prisoner must show “purposeful discrimination” and then

establish that the discrimination had a discriminatory effect on

him. Id. at 292. Accordingly, an equal protection plaintiff

cannot prevail if the defendants have legitimate,

nondiscriminatory reasons for their actions. Hunter v.

Underwood, 471 U.S. 222, 227–28, 105 S.Ct. 1916, 85 L.Ed.2d

222 (1985) (citing Village of Arlington Heights, 429 U.S. at

265, stating that “[p]roof of racially discriminatory intent or

purpose is required to show a violating of the Equal Protection

Clause.”).

Nedea v. Voinovich, 994 F. Supp. 910, 916-17 (N.D. Ohio 1998).

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In its order, the trial court specifically held that “[a]lthough Mr. Braden has clearly

established that he is a black male and, thus, a member of a protected group, from our review

of the record, he has failed to show that he has been discriminated against based on race.”

In reaching this conclusion, the trial court relied upon documentation submitted by Chairman

Traughber in support of the Appellees’ motion for summary judgment. This statistical data

concerns the rate of parole granted to offenders convicted of Murder 1 and First Degree

Murder. Chairman Traughber noted that from 2002 to 2012, the Board conducted 1,138

parole grant hearings for offenders convicted of Murder 1 and First Degree Murder. The

following chart, which was provided in connection with Chairman Traughber’s affidavit, is

a statistical breakdown of the decisions by the offenders’ race:

Race Declined Granted Continued Total Hearings % of Hearings

Resulting in

Grants

Black 242 131 107 480 27.29%

White 427 146 78 651 22.43%

Other 4 2 1 7 28.57%

Although, by Exhibit 5 to his petition (discussed supra), Mr. Braden attempts to provide

statistical data to indicate that the parole Board grants parole more often to Caucasian

inmates, Mr. Braden’s statistics are compiled with data from only five prisoners including

himself. Furthermore, although Appellant states that Exhibit 5 was compiled from data he

obtained from his public records request, there is nothing in the record to indicate exactly

what public records he used to compile his statistics. The information charted above was

compiled by Chairman Traughber and is based upon all parole hearings conducted for

prisoners convicted of crimes similar to those for which Mr. Braden is incarcerated. In

addition, while Mr. Braden’s statistics are purportedly based upon five actual cases,

Chairman Traughber’s statistics are based upon all of the 1,138 parole hearings (for this type

of offender) that were held between 2002 and 2012. Clearly, Chairman Traughber’sstatistics

give a more realistic view of the percentage of paroles according to an inmate’s race than do

those provided by Mr. Braden in support of his position. As set out above, Chairman

Traughber’s statistics indicate that in fact, the Board granted 4.86% more paroles to AfricanAmerican offenders than it did to Caucasian inmates who had committed similar offenses.

Accordingly, from a statistical standpoint, Mr. Braden has not provided sufficient evidence

to support his position that his parole was denied merely on the basis of race.

Although we have discussed the statistical data that was proffered in the instant case, it is not

our intent to give the impression that statistics alone are sufficient to show any bias in parole

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cases. It is well settled that parole decisions are fact-intensive and focus on the individual

prisoner seeking parole. Hopkins v. Tennessee Bd. of Paroles and Probation, 60 S.W. 79,

83 (Tenn Ct. App. 2001). More importantly, equal protection of the law under “the

Fourteenth Amendment guarantees equal laws, not equal results.” Personnel Adm’r of

Mass. v. Fenney, 442 U.S. 256, 273 (1979), aff’d Fenney v. Personnel Adm’r of Mass., 445

U.S. 901 (1980); see also NAACP v. Hunt, 891 F.2d 1555, 1562 (11 Cir. 1990). Absent

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an allegation of interference with a fundamental right or discriminatory treatment based on

suspect classification, a plaintiff cannot maintain an equal protection claim because he or she

was treated differently from others alleged to be similarly situated. Booher v. U.S. Postal

Serv., 843 F.2d 943, 944 (6 Cir. 1988).

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In his affidavit, Chairman Traughber states, in relevant part, that:

16. I have never considered the race of the offender and/or the

victim as a factor when determining whether to grant or deny

parole to any individual.

* * *

18. Parole decisions are made on an individual case-by-case

assessment. Mr. Braden is not similarly situated to other

offenders since the facts and circumstances of each offender’s

case are unique.

As set out in full context above, in his affidavit, Appellant disputes Chairman Traughber’s

statements:

Mr. Traughber alleges that parole decisions are made on a case

by case basis, and that I am not similarly situated to other

offenders since the facts and circumstances of each offender’s

case are unique. This is false. I am similarly situated to the

other offenders that I used as examples in the original filing

documents [Exhibit 5 to the original petition].

The Sixth Circuit Court of Appeals case, Henderson v. Bredesen, No. 3:04-0043, 2005 WL

2230033 (M.D. Tenn. Aug. 9, 2005), is analogous to the instant appeal. In Henderson, the

plaintiff, an African-American inmate, was convicted of murder. On appeal, the inmate

alleged an equal protection violation and claimed that he was improperly denied parole on

the basis of race. The Sixth Circuit ruled that Mr. Henderson’s allegations of purposeful

discrimination were conclusory. In reaching its decision that Mr. Henderson did not establish

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that he was similarly-situated to the inmates mentioned in his complaint who had been

granted parole, the Sixth Circuit noted that “[i]n order for the Plaintiff to be considered

similarly situated to the prisoners treated differently for purposes of an equal protection

analysis, he must show similarity in all relevant aspects of the parole decision.” Id. at *3

(citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998)

(holding that employees must be similar in all relevant respects to be similarly situated)).

Specifically, the court noted that although Mr. Henderson had established that the named

inmates had similar sentences to his, he did not establish similarity in other relevant aspects,

including the nature of their original offenses. Id. As in the instant case, in Henderson, the

Sixth Circuit pointed out that the defendants had provided statistical evidence establishing

that Caucasian and Africa-American inmates who had received murder convictions had been

granted and denied parole at a similar rate. Id. Finding that there was a legal basis for the

denial of Mr. Henderson’s parole, i.e., use of a deadly weapon in his original offense (he shot

his victim five times in the head), the Sixth Circuit affirmed the trial court’s grant of

defendants’ motion for summary judgment.

Likewise, in this case, the evidence establishes that race played no part in the Board’s

decision to deny Mr. Braden parole. Not only does Chairman Traughber specifically deny

any racial motive, but the statistical data concerning the Board’s parole decisions also shows

that race has not been a factor in parole release decisions. Mr. Braden’s countervailing

statistics neither establish him as similarly situated to those four prisoners to whom he

compares himself, nor is Appellant’s data sufficient as it is only a sampling of five cases,

including his own. For these reasons, and those enumerated above, Mr. Braden has failed to

meet his burden to establish an equal protection violation.

Ex Parte Communication by Chairman Traughber

We first note than an inmate has no liberty interest in parole in Tennessee. Accordingly, a

prisoner has no due process rights in a parol hearing or appeal. Tennessee Code Annotated

Section 40-35-503(b) provides, in pertinent part, that:

(b) Release on parole is a privilege and not a right, and no

inmate convicted shall be granted parole if the board finds that:

(1) There is a substantial risk that the defendant will not

conform to the conditions of the release program;

(2) The release from custody at the time would depreciate the

seriousness of the crime of which the defendant stands

convicted or promote disrespect for the law;

Furthermore, Tennessee Code Annotated Section 40-28-117 provides, in relevant part that:

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Parole being a privilege and not a right, no prisoner shall be

released on parole merely as a reward for good conduct or

efficient performance of duties assigned in prison, but only if

the board is of the opinion that there is reasonable probability

that the prisoner, if released, will live and remain at liberty

without violating the law, and that the prisoner's release is not

incompatible with the welfare of society.

The purpose of due process is to protect an interest to which an individual has a legitimate

claim of entitlement. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Based upon the

foregoing statutes, in Tennessee, an inmate has no constitutional or inherent right to

conditional release prior to the expiration of a valid sentence; accordingly, there is no

constitutionally protected liberty interest in parole in our State. Wright v. Trammell, 810

F.2d 589 (6 Cir. 1987); Kaylor v. Bradley, 912 S.W.728, 733 (Tenn. Ct. App. 1995).

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Rather, the parole of Tennessee inmates is a matter solely within the discretion of state

officials. Wright, 810 F.2d at 590-91. No due process rights exist if there is no liberty

interest at issue. Sandin v. Conner, 515 U.S. 472 (1995).

In his petition, Mr. Braden avers that his parole hearing was flawed due to the Board

Chairman’s bias in favor of the victim’s family and friends. Specifically, Appellant contends

that Chairman Traughber showed bias by

seating them first, having discussions with them outside of the

presence of Mr. Braden and his supporters, and by allowing

them to continue to speak well beyond the time limits that were

imposed prior to the beginning of the hearing, and which time

limits were followed regarding Mr. Braden’s supporters.

In his affidavit in support of the motion for summary judgment, Chairman Traughber denied

this allegation, stating:

When conducting Mr. Braden’s hearing, I followed all

applicable statutes, rules and policies. I did not engage in ex

parte communication with the victim’s family or the individuals

who appeared in opposition. The normal security procedures

were followed by the Department of Correction staff while

seating the visitors and Mr. Braden. Visitors are normally

admitted in a staggered fashion to the hearing room and seated

in separate groups for security reasons. I allowed ample

opportunity for opposition and support to make statements and

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present any information they wished to place before the Board.

I additionally read into the record letters of support for Mr.

Braden. I placed no time limits on individual statements.

As discussed above, a prisoner has no constitutionally protected liberty interest in parole.

Tenn. Code Ann. §40-35-503(b). Without such liberty interest, due process does not attach,

and there are no constitutionally required procedures for a parole hearing, as opposed to a

hearing on parole revocation. Morrissey v. Brewer, 408 U.S. 471 (1972); State v. Wade, 863

S.W.2d 406, 408 (Tenn.1993) (citing Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn.1965)).

Accordingly, even if we allow arguendo that Chairman Traughber engaged in some form

of ex parte communication during the hearing, this fact would not provide a sufficient basis

for reversing or vacating the Board’s decision so long as the decision is legally supported.

In this case, the Board denied Mr. Braden parole on the “seriousness of the offense” ground.

We now turn to address whether this ground provided a sufficient legal basisfor the decision.

If so, we must affirm the Board.

“Seriousness of the Offense” / Ex Post Facto Application

Rule 110-01-01-.06 of the Administrative Rules of the Tennessee Board of Parole contains

a list of factors that the Board may consider in determining whether a prisoner should be

granted parole. The Rule states, in relevant part, that:

(1) Before granting or denying parole, the Board may apply the

following factors to each eligible inmate to assist it in

determining whether such inmate will live and remain at liberty

without violating the law or the conditions of his/her parole:

(a) The nature of the crime and its severity;

(b) The inmate's previous criminal record

(c) The inmate's institutional record;

* * *

(g) The views of the community, victims of the crime or their

family, institutional staff, parole officers, or other interested

parties.

As noted above, the Board denied Mr. Braden parole,stating that “[t]he release from custody

at this time would depreciate the seriousness of the crime of which the offender stands

convicted or promote the disrespect of the law.” Tenn. Code Ann. §40-35-503(b)(2). In

addition to the Administrative Rule above, as noted by the trial court in its order, the

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Tennessee Supreme Court has held that the Board may consider “seriousness of the offense”

when determining whether release on parole is appropriate:

In our view, consideration of the seriousness of the offense, the

number of victims, and the risk to re-offend is appropriate to the

parole decision. Consideration of these factors does not

demonstrate that the Board acted illegally, fraudulently,

arbitrarily, or in excess of its jurisdiction. Moreover,

consideration of such factors does not implicate any

constitutional right under the circumstances.

Arnold, 956 S.W.2d at 482-83. In addition, the United States Supreme Court has held that

a parole board may properly consider the nature of an inmate’s crime in determining whether

to release him or her on parole:

[T]he choice [to grant or deny parole] involves a synthesis of

record facts and personal observation filtered through the

experience of the decision maker and leading to a predictive

judgment as to what is best both for the individual inmate and

for the community. This latter conclusion requires the Board to

assess whether, in light of the nature of the crime, the inmate's

release will minimize the gravity of the offense, weaken the

deterrent impact on others, and undermine respect for the

administration of justice.

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 8 (1979)

(footnote omitted). Despite these rulings by both the United States Supreme Court and the

Tennessee Supreme Court, Mr. Braden contends that the use of the Tennessee Code

Annotated Section 40-35-503(b) “seriousness of the offense” criterion presents an ex post

facto issue.

As discussed above, Appellant committed his crimes in 1981 and was convicted on August

25, 1981. At that time, Tennessee Code Annotated Section 39-5402 classified Murder in the

First Degree as a Class X Felony. In 1979, the Class X Felonies Act was promulgated and

codified at Tennessee Code Annotated Section 39-5401, et seq. This Act was still in effect

at the time Mr. Braden was convicted and sentenced as a Class X Felony offender in 1981.

At that time, Tennessee Code Annotated Section 40-3641 provided:

(b) Release classification is a privilege and not a right, and no

person convicted of a Class X felony shall be granted release

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classification status if the authority finds that. . .

(2) The release from custody at the time would depreciate the

seriousness of the crime of which the person stands convicted or

promote disrespect for the law.

Based upon the foregoing statute, it is clear that in 1981 seriousness of the offense was a

parole standard for Class X Felons. Because the same standard existed in 1981 and 2012,

Mr. Braden fails to state an ex post facto claim. As explained by this Court in Phifer v.

Tennessee Bd. of Parole, No. M2000–01509–COA–R3–CV, 2002 WL 31443204

(Tenn. Ct. App. Nov. 1, 2002):

[The petitioner] has failed to state a claim based upon the

constitutional prohibition against ex post facto application of

penal statutes found in both the United States Constitution,

Article I, Section 10, and the Constitution of Tennessee, Article

I, Section 11. The ex post facto prohibition is “aimed at laws

that ‘retroactively alter the definition of crimes or increase the

punishment for criminal acts.’” California Dep't of Corr. v.

Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601 (1995). An

ex post facto law “changes the punishment, and inflicts a greater

punishment than the law annexed to the crime when

committed.” Weaver v. Graham, 450 U.S. 24, 32–33, 101 S.Ct.

960, 966 (1981). The critical question in an ex post facto claim

is “whether the law changes the punishment to the defendant's

disadvantage, or inflicts a greater punishment than the law

allowed when the offense occurred.” State v. Pearson, 858

S.W.2d 879, 883 (Tenn.1993).

Under both state and federal constitutions and cases

interpreting them, two factors must be present to establish a

violation of the ex post facto prohibition: (1) the law must apply

retrospectively to events occurring before its enactment; and (2)

it must disadvantage the offender affected by it. State v. Ricci,

914 S.W.2d 475, 480 (Tenn.1996); Pearson, 858 S.W.2d at 882

(quoting Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446,

2451 (1987)). . . .

Actions which extend parole eligibility by altering the

criteria for such eligibility can implicate the ex post facto clause

because eligibility for parole consideration is part of the law

annexed to the crime when committed. Kaylor, 912 S.W.2d at

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732 (citing Weaver, 450 U.S. at 32–33, 101 S.Ct. at 966 (other

citations omitted)). As the United States Supreme Court has

stated:

... retroactive alteration of parole or early release

provisions, like the retroactive application of

provisions that govern initial sentencing,

implicates the Ex Post Facto Clause because such

credits are “one determinant of petitioner's prison

term ... and ... [the petitioner's] effective sentence

is altered once this determinant is changed.”

Lynce v. Mathis, 519 U.S. 433, 445, 117 S.Ct. 891, 898 (1997)

(citations omitted).

In the instant case, the analysis of any ex post facto

implication of Mr. Phifer's claims must begin with Tenn.Code

Ann. §§ 40–28–301 and –302, which were part of “the law

annexed to the crime” which Mr. Phifer committed in 1979. By

their plain words, those statutes put offenders on notice that if

convicted of a Class X felony, their release classification status

was to be determined by the Board in its discretion and that

release on parole was not available if the Board found that such

release would depreciate the seriousness of the crime committed

or promote disrespect for the law.

Phifer, 2002 WL 31443204, *4–*5 (footnote omitted). The same is true in Mr. Braden’s

case. As noted by the trial court in its order:

“Because at the time of [the petitioner’s] crime and conviction,

the law regarding parole. . . authorized denial if the Board found

that parole would depreciate the seriousness of the crime

committed,” there is no ex post facto violation. . . . Since the

same seriousness of the offense standard existed in 1981 as in

2012, the law did not “change the punishment to the petitioner’s

disadvantage nor inflict a greater punishment than the law

allowed when the offense occurred;” thus, there was no ex post

facto violation.

In the absence of any equal protection, due process, or ex post facto violation, the

“seriousness of the offense” criterion provides a legitimate legal basis for the Board’s

decision to deny Mr. Braden parole. Accordingly, the trial court did not err in granting

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summary judgment, as a matter of law, to the Appellees.

For the foregoing reasons, we affirm the order of the trial court. The case is remanded to the

trial court for such further proceedings as may be necessary and are consistent with this

opinion. Costs of the appeal are assessed against the Appellant, Andrew J. Braden, III.

Because Mr. Braden is proceeding in forma pauperis in this appeal, execution may issue for

costs if necessary.

_________________________________

KENNY W. ARMSTRONG, JUDGE

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