# FILED February

26, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk EDWARD HO USER, ) ) Petitioner /Appella nt, ) Appeal No.

) 01-A-01-9610-CH-00483 v. ) ) Davidson Chancery CHARL ES TRAUGH

BER, ) No. 96- 521 -III TENNESSEE BOARD OF ) PAROL ES, ) ) Responde nts/Appellees. )
COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE APPEAL FROM THE CHANCERY COURT FOR DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
THE HONORABLE ROB ERT S. BRANDT, CHANCELL OR

EDW ARD HO USER, Pro Se Turney Cente r Pri son RR # 1 # 111-625 Only, Tenness ee 37140- 9709

CHARL ES W. BURSON AttorneyGeneral & Reporter BREND A RHOT ON LITTLE Suit e 511, Cummi ns St ati on 209 10th Ave nue, S outh Nashvi ll e, Tenn esse e 37203

ATTORNEYS FOR RES PONDENTS/APPE LLEES

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE1 W hen an affi davit is f iled with a motion to dismiss, a court may concert the motion into one for summary judg men t by failing to exclud e ma tters outsid e the p leadin gs. Knier man v. Leather

wood , 542 S. W.2d 806, 808 (T enn. 1 976 ). In this case , the trial co urt cou ld no t have c onve rted the motio n even if it conside red the affidavit because the affi davit did not contain any matters outsi de the pleadings. All of the inf ormation contained in the affidavit w as includ ed in P etitioner ’s writ and the exh ibits there to. See Ko sloff v. S tate A uto. M ut. Ins. C o., ch. App. No. 89-152-II, 1989 W L 144006, at *2 (Tenn. App. 1 Dec. 1989)(quotin g 5 C. Wright & A. Miler , Federal Practice and Procedure § 1366, at 681-82 (1969)). -2- 

## O P I N I O N This is an appeal by peti tioner/appellant, Edward Houser, from the chancery court ’s judgm

ent dism issing his petition

for wri tof certi orari w hich sought r eview of the Tennessee Board of Parole’s January 1996 decision denying petitioner parole.
P eti tionerentered a

guilty p lea to aggravated ra pe of his se ven ye ar old nephew on 12 August

1986 and wa s sentence d to twenty years. A par

ole hearing was heldon 8 Januar

y 1996. Followingthe heari ng, the pa role offi cer rec omm

ended the Board decline pa

role beca use of the “seriousness of the offense” and that “psych does not tract la

nguage of T .C.A. 40-35-503( c)(2). ” On 21 Jan uary 1 996, the

Boar d modified the heari ng office

r’s re comm

ended revi ew date

of January 1998 to a review date in January

1999 and dec lined Peti tioner’ s parole ba sed on the “ser iousness of the offense” an d “high risk.” Petitionerfiled a writ of

certior ari in the Davidson C ountyChancery Court on 1 6 Februar

y 1996. Respondent s filed a m otion to dism

iss on 23 Apr

il 1996
. Respondents claimed that Petitioner failed to state a claim upon which the court coul d grant relief. In addition to the motion, Responden ts filed a n affidavi t 1 and a mem ora ndu m of law. The tria

l court dism

issed the petition afte

r finding: “

The petitioner asserts se veral gro unds, none o f which w ou ldauthorize this court t

o reverse adecision of the Board of Paroles.” Thereafter, Petitionerfiled a t imely notice of appeal to this court. Petitioner contends that the trial court improperly dismissedhis petition for wri t of cert

iorari on t he ground that it was not subjec t to judici al review.
Pet itioner alleged th at Respondents violate d many of his const

itutio na l rights and t

hat they acted ar bitrarily in deny ing him

parole. He also alleg ed that he was “cha lleng[ing] the proce ss emp loyed b y the P arole Boa rd, the D efendants , Respondents , rather than the results reached.” Read in i ts e nti rety, the petition does nothing more

than alleg e the Boar

d erred when it denie d petitioner parole. This in-3-

itself is n ot a violati on of Petit ioner’ s constituti onal rights. See Tenn. Code Ann . § 40-35-503(b )(Supp. 1996)(prov iding that “ [r]el ease on pa role is a privileg e and not aright”); Greenholtz v. Inmates of the Neb. Penal and Correctional complex , 442 U.S. 1, 7, 99 S . Ct. 210 0, 2104, 60 L. Ed. 2d 668, 675 (1979)(holding that prisoners have no constituti onal or inhe rent right to con ditional re lease pri or to the expira tion of a valid sentence). Despite Petitioner’s allegation to the contrary, he is asserting nothing more than a challe nge to the intrinsic correctness of the Board’s decision. Such an attack is outside the jurisdiction of the reviewing court. This court has held that de cisions of the Board

are rev iewable

under the c omm

on l aw writ of c ertiorar

i, but that the scope of r eview is l imite d. The scope

of revie w under th e com mon la w writ, however , is very narrow. It covers only an inquiry into whether the Board has exceeded its j urisdi ction or is a cting illeg ally, fraudule ntly, or arb itr aril y. . . . At the risk of oversim plification, one may say that itis not the c or rectness of the decision that is subject to judicial review, but the manner in which the de cision is re ached. If the agency or b oard has r

eached it s decision i n a constitu tional or lawful manne r, then t he decision

would not be

subject to judicial review. Powell v. Paro le Eligib ility Revie w Bd., 879 S.W.2d 871, 873 (Tenn. App. 1994).

The intrinsic correctness of a decision is beyond the scope of review under the common law writ. Id. at 873. Here, Petitioner presents no facts asserting that the Board exceede d its juri sdiction or acted ille gally, fraudule ntly, or arbit rar ily. He presents no facts w arrantin g review of the manner in which the Bo ard reac he d it s decision to deny him parole. The trial court prop erly dismis sed the pet ition because Petiti one r was see king to have t

he court r

eview the

intrinsic c orrectne ss of the Board’ s decision.
Ittherefor

e results t hat the j udgmen

t of thechancell or is aff

irme d, and the cause is remanded to the

chancer y cour t for any further necessar y proc eedings. Costs on appeal are assessed against petitioner/appellant, Edward Houser.-4- __________________________________________ SAMUEL L

. LEWIS, JUDGE CONCUR:

___________________________________ BEN H. CANTRELL , JUDGE

____________________________________ WILL IAM C. KOCH, JR., JUDGE