Richard Lowell Blanchard, II v. Tennessee Board of Probation and Parole ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 22, 2012
RICHARD LOWELL BLANCHARD, II v. TENNESSEE BOARD OF
PROBATION AND PAROLE
Appeal from the Chancery Court for Morgan County
No. 1212 Hon. Frank V. Williams, III, Chancellor
No. E2012-00663-COA-R3-CV-FILED-DECEMBER 3, 2012
This appeal involves the petitioner’s efforts to be paroled. After the Tennessee Board of
Probation and Parole declined to recommend the petitioner for parole, he filed a pro se
petition for a writ of certiorari. The Board filed a motion to dismiss. The trial court granted
the Board’s motion, and the petitioner appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.
Richard Lowell Blanchard, II, Wartburg, Tennessee, pro se appellant.
Robert E. Cooper, Jr., Attorney General and Reporter, William Young, Solicitor General, and
Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Board of Probation and Parole.
OPINION
I. BACKGROUND
The petitioner, Richard Lowell Blanchard, II, is an inmate housed at the Morgan
County Correctional Complex in Wartburg, Tennessee, convicted of robbing a gas station
while wielding a knife. On June 8, 2011, Blanchard was granted a parole hearing by the
Tennessee Board of Probation and Parole (“the Board”). Eight days later, he received notice
that he was denied parole on the grounds that his “release from custody at this time would
depreciate the seriousness of the crime” for which he was convicted and that his continued
participation in correctional treatment programs would “substantially enhance [his] capacity
to lead a law abiding life when given release at a later time.” Blanchard appealed the
Board’s decision in July 2011. His appeal was denied the following month.
Blanchard filed his petition for writ of certiorari on February 8, 2012. He requested
that the court review his parole hearing, alleging that the Board acted illegally and arbitrarily
when it decided to decline his parole. The Board filed a motion to dismiss based upon the
grounds that the writ of certiorari was not verified under oath before a clerk of court, judge,
or notary public, and it did not state it was Blanchard’s first application for the writ.
Moreover, the Board observed that the petition was not filed within the 60-day statute of
limitations applicable to petitions for writ of certiorari. The trial court dismissed the action
on March 21, 2012. Blanchard filed this timely appeal.
II. ISSUE
The issue before us is whether the trial court properly dismissed Blanchard’s petition
for writ of certiorari because he failed to comply with constitutional and statutory
requirements for filing a petition for writ of certiorari within the 60-day statute of limitations
applicable to petitions for writ of certiorari.
III. STANDARD OF REVIEW
Our standard of review is de novo, without a presumption of correctness.” Northland
Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).
IV. DISCUSSION
The power to decide to release a prisoner on parole rests with the Board, not the
courts. Hopkins v. Tennessee Bd. of Parole and Probation, 60 S.W.3d 79, 82 (Tenn. Ct.
App. 2001). Parole decisions are entirely discretionary. Richardson v. Tennessee Dep’t of
Correction, 33 S.W.3d 818, 820 (Tenn. Ct. App. 2000). The means to obtain judicial review
is the common law writ of certiorari. Thandiwe v. Traughber, 909 S.W.2d 802, 803 (Tenn.
Ct. App. 1994).
Article 6, Section 10 of the Tennessee Constitution provides as follows:
The Judges or Justices of the Inferior Courts of Law and Equity shall have
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power in all civil cases, to issue writs of certiorari to remove any cause or the
transcript of the record thereof, from any inferior jurisdiction, into such court
of law, on sufficient cause, supported by oath or affirmation.
(Emphasis added.). Tennessee Code Annotated section 27-8-104 imparts the following:
(a) The judges of the inferior courts of law have the power, in all civil cases,
to issue writs of certiorari to remove any cause or transcript thereof from any
inferior jurisdiction, on sufficient cause, supported by oath or affirmation.
(Emphasis added.). Tennessee Code Annotated section 27-8-106 further provides:
The petition for certiorari may be sworn to before the clerk of the circuit
court, the judge, any judge of the court of general sessions, or a notary
public, and shall state it is the first application for the writ.
(Emphasis added.).
As noted by the Board, a petition that is not properly verified under oath or affirmation
and does not state that it is the petitioner’s first application for the writ must be dismissed.
Depew v. King’s, Inc., 276 S.W.2d 728, 729 (Tenn. 1955); Bowling v. Tennessee Bd. of
Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at *3 (Tenn. Ct. App. Apr. 30,
2002). “Courts have consistently held that the failure of the petitioner to verify the petition
as required by the Tennessee Constitution and the Tennessee Code is proper grounds for
dismissal.” Carter v. Little, No. W2007-00189-COA-R3-CV, 2007 WL 2872390, at *3
(Tenn. Ct. App. Aug. 23, 2007).
In this case, Blanchard failed to verify the contents of his petition and failed to
properly acknowledge the petition before a notary public. Moreover, the petition failed to
state it was his first application for the writ. He has not met the constitutional and statutory
requirements of a common law petition for writ of certiorari. Accordingly, the trial court
properly dismissed Blanchard’s petition.
As we noted in Carter,
While we are sensitive to the fact that the Appellant filed the petition himself
and is also representing himself in this appeal, those that proceed pro se must
nevertheless comply with the procedural law that those with counsel must
follow. Regardless of whether an individual is representing himself, this Court
lacks the power to waive a jurisdictional requirement.
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2007 WL 2872390, at *4 (citations omitted). It is well-settled that, “[w]hile a party who
chooses to represent himself or herself is entitled to the fair and equal treatment of the courts,
[p]ro se litigants are not . . . entitled to shift the burden of litigating their case[s] to the
courts.” Chiozza v. Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App. 2009).
Tennessee Code Annotated section 27–9–102 sets out the time for filing the petition:
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.
The sixty-day statute of limitations is mandatory and jurisdictional. Jackson v. Tenn. Dep’t
of Correction, 240 S.W.3d 241, 247 (Tenn. Ct. App. 2006). Failure to file the petition within
the statutory time limit results in the Board’s decision becoming final and, once the decision
is final, the trial court is deprived of subject matter jurisdiction. Gore v. Tenn. Dep’t of
Correction, 132 S.W.3d 369, 379 (Tenn. Ct. App. 2003); Thandiwe, 909 S.W.2d at 804.
The final decision of the Board denying Blanchard parole was entered on August 16,
2011. Blanchard therefore had until October 17, 2011, to timely file his petition. However,
the instant petition was filed by him on February 8, 2012, well beyond the applicable
limitations period imposed by Tennessee Code Annotated section 27-9-102. Thus, the trial
court lacked jurisdiction over the petition and properly dismissed it on this ground as well.
V. CONCLUSION
We affirm the determination of the trial court and remand. The costs of this appeal
are assessed to the appellant, Richard Lowell Blanchard, II.
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JOHN W. McCLARTY, JUDGE
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