Houser v. Traughber

EDWARD HOUSER, )
)
Petitioner/Appellant, ) Appeal No.
) 01-A-01-9610-CH-00483
v. )
) Davidson Chancery
CHARLES TRAUGHBER, ) No. 96-521-III
TENNESSEE BOARD OF )
PAROLES, )
)
Respondents/Appellees. ) FILED
COURT OF APPEALS OF TENNESSEE February 26, 1997
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
EDW ARD HO USER, Pro Se
Turney Center Prison
RR # 1 # 111-625
Only, Tennessee 37140-9709
CHARLES W. BURSON
Attorney General & Reporter
BREND A RHOT ON LITTLE
Suite 511, Cummins Station
209 10th Avenue, South
Nashville, Tennessee 37203
ATTORNEYS FOR RESPONDENTS/APPELLEES
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This is an appeal by petitioner/appellant, Edward Houser, from the chancery
court’s judgment dismissing his petition for writ of certiorari which sought review of
the Tennessee Board of Parole’s January 1996 decision denying petitioner parole.
Petitioner entered a guilty plea to aggravated rape of his seven year old
nephew on 12 August 1986 and was sentenced to twenty years. A parole hearing was
held on 8 January 1996. Following the hearing, the parole officer recommended the
Board decline parole because of the “seriousness of the offense” and that “psych does
not tract language of T.C.A. 40-35-503(c)(2).” On 21 January 1996, the Board
modified the hearing officer’s recommended review date of January 1998 to a review
date in January 1999 and declined Petitioner’s parole based on the “seriousness of the
offense” and “high risk.”
Petitioner filed a writ of certiorari in the Davidson County Chancery Court
on 16 February 1996. Respondents filed a motion to dismiss on 23 April 1996.
Respondents claimed that Petitioner failed to state a claim upon which the court could
grant relief. In addition to the motion, Respondents filed an affidavit1 and a
memorandum of law. The trial court dismissed the petition after finding: “The
petitioner asserts several grounds, none of which would authorize this court to reverse
a decision of the Board of Paroles.” Thereafter, Petitioner filed a timely notice of
appeal to this court. Petitioner contends that the trial court improperly dismissed his
petition for writ of certiorari on the ground that it was not subject to judicial review.
Petitioner alleged that Respondents violated many of his constitutional
rights and that they acted arbitrarily in denying him parole. He also alleged that he
was “challeng[ing] the process employed by the Parole Board, the Defendants,
Respondents, rather than the results reached.” Read in its entirety, the petition does
nothing more than allege the Board erred when it denied petitioner parole. This in
1
W hen an affidavit is filed with a motion to dismiss, a court may concert the motion into one for summary
judgment by failing to exclud e matters outsid e the pleadings. Knierman v. Leatherwood, 542 S.W.2d 806, 808
(Tenn. 1976 ). In this case , the trial court cou ld not have conve rted the motio n even if it conside red the affidavit
because the affidavit did not contain any matters outside the pleadings. All of the information contained in the
affidavit was includ ed in P etitioner’s writ and the exhibits thereto. See Kosloff v. S tate Auto. M ut. Ins. C o., ch.
App. No. 89-152-II, 1989 W L 144006, at *2 (Tenn. App. 1 Dec. 1989)(quoting 5 C. Wright & A. Miler, Federal
Practice and Procedure § 1366, at 681-82 (1969)).
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itself is not a violation of Petitioner’s constitutional rights. See Tenn. Code Ann. §
40-35-503(b)(Supp. 1996)(providing that “[r]elease on parole is a privilege and not
a right”); Greenholtz v. Inmates of the Neb. Penal and Correctional complex, 442
U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668, 675 (1979)(holding that prisoners
have no constitutional or inherent right to conditional release prior to the expiration
of a valid sentence).
Despite Petitioner’s allegation to the contrary, he is asserting nothing more
than a challenge 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 decisions
of the Board are reviewable under the common law writ of certiorari, but that the
scope of review is limited.
The scope of review under the common law writ, however, is
very narrow. It covers only an inquiry into whether the Board has
exceeded its jurisdiction or is acting illegally, fraudulently, or
arbitrarily. . . . At the risk of oversimplification, one may say that
it is not the correctness of the decision that is subject to judicial
review, but the manner in which the decision is reached. If the
agency or board has reached its decision in a constitutional or
lawful manner, then the decision would not be subject to judicial
review.
Powell v. Parole Eligibility Review 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 exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. He
presents no facts warranting review of the manner in which the Board reached its
decision to deny him parole. The trial court properly dismissed the petition because
Petitioner was seeking to have the court review the intrinsic correctness of the
Board’s decision.
It therefore results that the judgment of the chancellor is affirmed, and the
cause is remanded to the chancery court for any further necessary proceedings. Costs
on appeal are assessed against petitioner/appellant, Edward Houser.
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__________________________________________
SAMUEL L . LEWIS, JUDGE
CONCUR:
___________________________________
BEN H. CANTRELL, JUDGE
____________________________________
WILLIAM C. KOCH, JR., JUDGE
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