# FILED
November 1, 19 96 Cecil W. Crowson Appellate C ourt Cler k KEVIN RYAN M OSLEY, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9604- CH-00162 VS. ) ) Davidson Chancery ) No. 95-3185-I TENNESSEE BOA RD OF PARO LES, ) et al., ) ) Respondent/Appell ee. )

COURT OF

APPEALS OF TEN NESSEE MIDDLE SEC TION AT NA SHVILLE
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H . KILCREASE, J R., CHANC ELLOR

KEVIN RYAN M OSLEY N.C.S.C. 1346 63 7466 Centennial Boule vard Nashville, Tennessee 37209-1 052 Pro Se/Petiti oner/Appellant CHARLES W. BURSON Attorney Genera l and Reporter PATRICIA C. KUSSMANN Assistant Att orney General 404 James Rober

tson Parkway Suite 2000 Nashville, Tennessee 37243 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUD GE CONCUR: TODD, P.J. , M.S. KOCH, J.- 2 - 

## O P I N I O N

Kevin Mosley, a

prisoner i n the custody of the Department ofCorrecti on, was twice consi dered fo r parole. On each occasi on the Parole Boar d declined to release him, citi ng as its rea son the serious ne ss of his off e nse. Mr. M osley filed a Petition for Certio rari wit h the Chancery Court of Dav idson County, contending that he was entitle d to a more defi nite statement of th e Parole Board’s reasons. The prisoner als o argued that the Bo ard erred i n failing to consider the results of a psychological study it had or dered. The Chancery C ourt dismi ssed the petition. We affirm the t rial court

.

I.

The appellant was

convicted of burglary and a ggrav ate d robbery and was sentenced to fifteen ye ars, with eligi bility for parole after he had served 30% of his sentence. On May 19, 1993 he was granted his first parole hearing. The Board of Paroles denie d him parolebecause of the se riousness of his offense , and scheduled the next parol e hearing for May 1995. However, in May 1 995 the Board continued the hear ing in order to obtain a psychological evaluation of the pr isoner.
According to Mr. Mos ley, he has been a model pris oner, and he had been told that a posi tive progno sis by the psychol ogist would bethe decisive factor
as to the grant or

denial of paro le. Th e Board-appointed exa mining psychologist allegedly determined th at no further psychological counseling was needed in or der for him to be released on parole. However on September 15, 1995, the Board denied him parole. Apparently the Board used the standard form to report its action, simply entering the initial s “SO”on the form to indicate that the reason fo r declining Mr. Mosley was

the seriousnes s of his offens e.- 3 - Mr. Mosley subm itted a Petiti on for Certi orari tothe Chancery Court of Davidson County, argui ng that the Board of Paroles had deni ed him due process, and had acted in an ar bitrary and capricious manner by using a boile rplate reason to deny him parole wit hout offering anyfurther expl anation, and by i gnoring the res ults of the psychological evaluation that the Boa rd itself had ord ered. The Chancery Court dismissed the petition fo r failure to state a clai m upon which r elief can be granted. This appeal fol lowed.

II.

We begin, aswe must, w ith the observation that the ave nues of redress available to a prisoner

who believes that

the Board of Par

oles has erred i n declining to grant him parole are ver y limited

.

The United StatesSupreme Court has ruled that a prisoner has no right under the United States Consti tution to be rel eased on parole prio r to the expir ation of a valid sente nce. Greenholtz v . Inmates of th e Nebraska Penal and Correct

ion Complex , 442 U.S. 1, 99 S. Ct. 2100, 2104, 60 L .Ed.2d 668 (1979) (Marshall J., dissenting). The Tennessee parole statute, Tenn. Code Ann. § 40-35 -503(b) states in part that “ [r]elease on par ole is a pri vilege and not a right.”

In Tenne sse e, the grant of par ole is a dis cretionary matter veste d exclusively in the Board of Paroles. Doyle v. Hampton , 207 Tenn. 399, 340 S.W.2d 891 (1960). Also, decisions of the Board of Pa roles, unlike those of most other administrative age ncies, are not subject to judicial review under the Administrative Procedures Ac

t. See Tenn. Co de Ann. § 4-5-10 6(c).

However we have previously

held that the Boar

d ofParoles is not totally immune from judi cial scru tiny. See Powell v. Pa role Eligi bility Rev

iew Board, 879- 4 -

S.W.2d 871 (Tenn.App. 1994 ). While the intrinsic corr ectnes s of the Board’s decisionsis beyond the s cope of judici al review, a Writ of C ertiorari gives thecourt the rightofinquiry i nto the question of whether the Board is exceeding its autho rity, or is acting ill egally, fraud ulently or arbitraril y. 879 S.W.2d at 873.

III.

The appellant has s ubmitted a wel l-writt en pr o -se brief i n which he correctlyacknowledges the inherent li mitationsof any challe nge to the actions of the Board of Paroles. However, he i nsist s that his r ights to due pr ocess entitl e him to receive a more defini te statement of the reasons for the parole b oard ’s decisio n to decline to grant him parol e, and of the evid ence the board relied upon.

In support of thi s propositi on, Mr. Mosley cites numer ous cases fro m different federal jurisdictions, where the cour ts have said t hat such a statem ent was
a component of

minimum due process in parole decisions. All of the cases cited by Mr. Mosley precede the Greenholtz case, supra , which establ ished that determinatio ns concerning release on parole do not directly implicate any due process rights under the United States Constitu tion, but are matters properly to be decided on the basis of thelaw of the j urisdicti on in which t hey arise. No cases are cited which address the question of whether a pet itioner is entitled to such reli ef under Tenness ee law.

For

example, the appellant quo tes extensively from Wagner v. Gilli gan, 425 F.Supp. 1320 (1979), an opinion involving the Ohi o parole statut es. A portion of the quoted language i s reproduced bel ow:

“I t is obvious that th e Authority’ s standardize d reasons for denying parole provi des no means by which the inm ate or a reviewing body can ascertain wh ether the Authori ty’s decis ion was rationally

based on correct facts or any facts peculi ar to the inmate. . . . The Court finds that the Authority must- 5 - provide each inmate w ith the grounds for denial of his parole and the essential facts from which the Autho rity drew t he inferences that

led to its de cision.” 425 F.Supp at 1325.

However the Sixth Circuit Court of Appeals reversed the Ohio District Court’s decision, i n accordance w ith the Greenholtz opinion, supra, which was issued while Wagner v. Gi

lligan was on appeal. See Wa gner v. Gill igan, 609 F.2d 867 (1979). Mr. Mos ley insists, however, t hat only some aspects of the Di strict Court’s opinion were rever

sed by the Sixth Circuit, and that “ a fair readi ng of Greenholtz, infra, does not hold that the par ole board may deny parole si mply on no reason, or by simply ch ecking a form and stating that parole has been den ied.”

We believe, however, that the Si xth Circui t issued a bla nket reversa l of the lower court’s h old ings in Wagner v. Gi lligan , and we do not see anything in Greenholtz

that prevents a State from al lowing its parole board t o notify an inm ate of its actions by

checking a

box or enteri ng a few charac ters into a pr

e-printed for m to indicate its

reason for dec lining parol e.

The Greenholtz

court determ ined that the creation of a system of parole does not create a constit utio nally protec ted liberty interest in early rele ase on the basis of an inmate’ s hope or expectation of parole, unless the parole statute is drafted in s uch a way as t o give riseto such an inte rest. Due pr ocess righ ts in parol e determinatio n proceedings ar e likewis e derived fr

om the paro le statutes and rules themselves, and not direct ly from the Fifth and F ourteenth Amendments to the United States Consti tution.

Having identified the source of any rights the Nebraska prisoners might have had i n r elation to paro le decisions , the High Cou rt proceeded to examine the argumentthat the inmat es had been deprived of due proce ss, in light of Nebraska’s- 6 -

parole statute. The C ourt found that thestatute, as drafted, did create an expect ancy of release that was entitled t o som e measure of constitutional prote ction, but also concluded that :

“[W]e find nothing in the due proce ss concepts as they have thus far evolved that requires th e Parole Board to specify the particular

‘evidence’ in the inmate’s file or at his i nterview on which it rests t he discretion ary determi nation that an inmate is not ready for conditional re lease. . . . To require the parole authority to provide a summary of the evidence would tend to conv ert the process i nto an adversar y proceeding and t o equate the Board’s parole release determination with a guilt determinatio n. . . .” 442 U.S. at 15-1 6, 99 S.Ct. at 21 08, 60 L.Ed.2d at 680- 81.
IV.

Of course, the Sup reme Court’ s interpretation of Nebraska law does not relieve us of the oblig ation to det ermine wheth er Mr. M osley has received all the process to which he is entitled under Tennessee law. However we must fir st note that
our courts have de termined that current Tennes see law does not create a protected liberty i nterest in par

ole. Wright v. Trammel , 810 F.2d 589 (6th Cir. 1987), Wel ls v

. Board of Paroles, 909 S.W.2d 826 (Tenn. App. 1995).

Secondly, the Board of Parol es is statutor ily authori zed to deny parole if release woul d depreciate theseriousness of the offense. Tenn. Code Ann. § 40-35- 503. The Board has accor dingly incor porated this pr ovision into its cr iteria for granting or declining parole. Rules of the Board of Paroles No. 1100-1-1-.06(3)(b).

Although we have no way of knowing on t he basis of thi s record the details of Mr. Mosley’s offenses, it would be belaboring the obvi ous to state that aggra vated robbe ry and burglar y are both ser ious offenses. We also fi nd nothing troubling in the concept that the Boa rd might use that same reason to decline parole twice in successi on, even though paroling a prisoner after his second hearing mi ght- 7 -

depreciate the seriousness of his offense less than paroling him at the fi rst opportuni ty would.

As for Mr. M osely’s argument thatwithout a mo re definite statement of the reasons for decline, he has no way of know ing how to conform his conduct to the requirements

of the Board, we can only concludethat if he is indeed a model prisoner he already knows what is required, but that the passage of additional time may also be necessary, in order not t o minimi ze the gravit y of his cr imes.

V.

Mr. Mosely als o objects to theapparent failu re of t he Paro le Board to give consideration to the favorab le report of the psychol ogist regardi ng his mental state. Thepsychologist’s report is not found in the recor d. However, even granting that it is as favorable as M r. Mosley reportsit to be, we believe the Board should be able to consult a psychologi st or psychiatri st for assi stance in deter mining the appropriateness of parole in a particular case, without

surrenderi ng its own power of decision to th at consultant.

VI.

Mr. Mosley h as failed to make a suffi cient showin g to enable us to conclude that the Board acted arbitrarily, fraud ulently or i llegally in declining him parole. The judgment of the trial court is affi rmed. Rem and this cause t o th e Chancery Cou rt of Davidson County for further proceed ings consistent with this opinion. Tax t he costs on appeal to the appellant.

_____________________________- 8 - BEN H. CAN TRELL, JUD GE

CONCUR:

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

_______________________________ WILLIAM C. KOCH, JR., JUDGE