# FILED
August 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JIMMY KEY, ) ) Plaintiff/Appellant, ) ) Davidson Chancery VS. ) No. 95-3896-I ) TENNESSEE BOARD OF ) Appeal No. PAROLES, ) 01A01-9610-CH-00480 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR., CHANCE LLOR

For Plaintiff/Appellant : For Defendant/Appell e e : Jimmy Key John Knox Walkup Pro Se Attorne y Gen eral and Reporte r Brenda Rhoton Little Parker, Allen & Cr

offord Nashville, Tenness ee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Tenn. Ct. App. R. 10( b) provides: The Court, with the concurrence of all judges participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decide d b y memorandum

opinion it

shall be designated “MEMO RANDUM OPINION, ” shall notbe published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

### -2-



## MEMORANDUM OPINION

This appeal involves a disput e between the Board of Paroles and a prisoner convicted of being an habitual criminal over the inmate’s right to custodial parole and the ca lculation of his sentence credits. The Chancery Cou rt for Davidson Cou

nty granted the Boa

rd’s motion to

dismiss, andthe prisoner has appealed. We affirm the d ismissal of the priso ner’s suit in acc

ordance with Tenn. Ct. App. R. 10(b). 1

In 1976 Jimmy Lee Key was convicted of burglary and of being an habitual criminal and

was sentenced to life imprisonment. Three years later, while confined at the Morgan County Regional Correctional Facility, Mr. Key murdered a fellow inmate. In a plea agreement, he agreed to plead guilty to second degree murder in return for a thirty-five year sentence

to be served cons

ecutively with his life sentence. In April 1991, the Board of Paroles grantedMr. Key custodial parole from his life sentence but rescinded the parole one year later in accordance with an Executive Order by Governor McWherter exc

luding certain vio

le nt of fenders from el

igibility for early

release consideration. The Board paroled Mr. Key on his life sentence in the usual way in December 1994.
As soon as he was paroled the second time, Mr. Key filed a declaratory j udgment action in the Chancery Cour

t for Davidson Coun

ty challenging the

Board’s 1992 decision to rescind his original parole and the calculation of his sentence reduction credits. The trial court dismissed Mr. Key’s petition on the ground that the Board’s ac tions co uld only be reviewed using a

common-law writ of

certiorari.
The power to pardonor parole rests in the Executive Branch. See Tenn. Const. art. III, § 6. Acc ordingly, t he Board is wieldin g executive powe

r when it makes pa

role decisions, a

nd these decisions, if made according to law, are not reviewable by the courts. See Tenn. Code Ann. § 40-28- 115(c) (1997); Flowers v. Traughber , 910 S.W.2d 468, 470 (Tenn. Crim. App. 199 5). Pri soners seeking to challenge the fu ndamental legalit

y of a parole dec

ision may do so

using a common-law writ of certiorari, see Powell v. Paro le Eligibility Review Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994), but may notobtain judicial review by declaratory judgment. See Watson v. Tennessee Dep’t of Correction , No. 01A01- 9707-CH-00360, 1998 WL 4707, at *2 (Tenn. Ct. App. Jan. 9, 1998), perm. app. denied

(Tenn. May 26, 1998). Accordingly, the portion of Mr. Key’s petition challenging the recision of his first parole fails to state a claim upon which relief can be granted.

### -3- Likewise, the portion of Mr. Key’s petition challenging the calculation of his sen tence credits fails to state a claim. The Tennessee Department of Correction, not the Board, is responsible for administering the prisoner sentence reduction program. Accordingly, Mr. Key has sued the wrong agency and is entitled to no relief from the Board.

We affirm

the trial court’s dismissal of Mr. Key’s petition and remand the case to the trial court for whatever further proceedings may be required. W e also tax the cost s of this appeal to Jimmy Key.

______________________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ SAMUEL L. LEWIS, JUDGE