C.D. Boyd v. TN Board of Paroles

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 23, 1998
C.D. BOYD v. TENNESSEE BOARD OF PAROLES, ET AL.
Appeal from the Chancery Court for Davidson County
No. 97-3614-I Irvin H. Kilcrease, Jr., Chancellor
No. M1998-00914-COA-R3-CV - Filed April 12, 2001
This appeal involves an prisoner’s efforts to be paroled from a 35-year sentence for second degree
murder. After the Tennessee Board of Paroles declined to parole the prisoner for the sixth time, the
prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson
County seeking judicial review of the Board’s latest decision. The trial court dismissed the petition,
and the prisoner has appealed. We affirm the dismissal of the prisoner’s petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.
C.D. Boyd, Pikeville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Rebecca E. Miller, Nashville, Tennessee, for
the appellee, Tennessee Board of Paroles.
MEMORANDUM OPINION1
In 1982, C. D. Boyd2 was charged with first degree murder in Shelby County. To avoid the
possibility of being sentenced to either death or life imprisonment, she agreed to plead guilty to
1
Tenn. Ct. Ap p. R. 10(b) pro vides:
The Court, with the concur rence of all judges p articipating in the case, may affirm,
reverse or modify the actions of the trial court b y m e m orandum opinion when a
formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designate d "ME MOR AND UM O PINIO N," shall
not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.
2
Cow. D. Boyd, fo rmerly kno wn as Terry Boyd, describ es herself as a male to female pre-operative transsexual
and has requested that she be referred to as a female.
second degree murder. Accordingly, in November 1983, she was sentenced to thirty-five years in
prison. She is currently serving her sentence at the Southeastern Tennessee State Regional Central
Correctional Facility in Pikeville.
Ms. Boyd first became eligible to be considered for parole in 1989. Between 1989 and 1997,
the Tennessee Board of Paroles declined to release her on parole six times. In November 1997, Ms.
Boyd filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County
to review the Board’s latest refusal to release her on parole. Her petition contains the stock
challenges to the Board’s decision to deny parole that have been repeatedly raised with little success.
Accordingly, on March 3, 1998, the trial court granted the Board’s motion to dismiss Ms. Boyd’s
petition. Ms. Boyd has appealed.
I.
The scope of review under a common-law writ of certiorari is limited. Courts do not issue
the writ to review the intrinsic correctness of an inferior tribunal’s decision. Rather, the writ lies to
inquire into whether the original decisionmaker exceeded its jurisdiction or acted illegally,
fraudulently, or arbitrarily. Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997).
Courts grant relief under the common law certiorari writ when the decision being reviewed was
arrived at in an unlawful manner. Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873
(Tenn. Ct. App. 1994). Thus, if we find that the procedures complained of in this case comport with
all constitutional and statutory requirements, we must affirm the trial court’s dismissal. Guided by
these legal standards, we turn to Ms. Boyd’s arguments.
Ms. Boyd first argues that when she was incarcerated in November 1983, the Board’s rules
contained a presumption that all inmates would be released upon the inmate first becoming eligible
for parole.3 Even though the Board rescinded this presumption in 1985 prior to her first parole
hearing, Ms. Boyd contends that the presumption applies to her and that repealing it constitutes an
impermissible ex post facto law. We have previously considered and rejected that argument with
regard to prisoners in circumstances similar to Ms. Boyd. Kaylor v. Bradley, 912 S.W.2d 728, 732-
34 (Tenn. Ct. App. 1995). We reject the argument again in this case.
Second, Ms. Boyd argues that the Board violated due process rights by basing its decision
to deny her parole on the seriousness of her offense. We have previously considered and rejected
that argument. The Board may properly consider the seriousness of an offender’s crime in denying
parole. Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d at 482-83; Perry v. Board of Paroles, No.
M1998-01018-COA-R3-CV, 2001 WL 46990, at *1 (Tenn. Ct. App. Jan. 22, 2001) (No Tenn. R.
App. P. 11 application filed). This argument fails to state a legal claim.
3
Ms. Boyd cites a superseded rule that stated: “The Board operates under the presumption that each resident
who is eligible for parole is a worthy candidate and thus the board presumes that he will be released on parole when he
is first eligible.” Tenn. Comp. R. & Regs. r. 1100-1-1-.06 (superseded).
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Third, Ms. Boyd argues that the Board acted illegally by failing to provide her with a detailed
written statement of its reasons for denying parole. We note first that the Board did give her copies
of the form the hearing officer and his Board colleagues completed regarding her hearing which
contained the reasons for denying her parole. We also note, as we have previously held, that no law
requires that state prisoners receive detailed written statements setting out “with particularity” the
reasons behind the Board’s parole decisions. Perry v. Board of Paroles, 2001 WL 46990, at *2.
This argument also states no legal claim.
Fourth, Ms. Boyd insists that “Board policy” requires all members, or at least a quorum of
the Board, to be present when an inmate convicted of murder is considered for parole release.
However, Ms. Boyd does not identify this “policy” or provide any evidence that such a “policy”
exists. We note that Tenn. Code Ann. § 40-28-105(d)(4)(k) (Supp. 2000) requires the votes of four
members to grant parole in cases of second degree murder, but this statute, which only became
effective January 1, 1998, had no applicability to Ms. Boyd’s 1997 parole hearing. Furthermore,
even if the statute were applicable to Ms. Boyd, it would not support her argument. Nothing in it
prevents the Board from deciding parole matters based upon the recommendations of a single
hearing officer, see Tenn. Code Ann. § 40-28-105(d)(9), which is the procedure that occurred in this
case.
Ms. Boyd’s fifth argument goes back to her original plea bargain. She says that in exchange
for pleading guilty to second degree murder in 1983, the prosecutor promised that she would be
sentenced to thirty-five years in the penitentiary and would be released on parole after serving forty
percent (later reduced by a change in the law to thirty-five percent) of that sentence. She contends
that the prosecutor promised her that thirty-five percent of her thirty-five year sentence would be the
maximum she would have to serve before being physically released on parole. Because she has
served over forty percent of her sentence without the Board of Paroles releasing her, she argues that
the State has breached the plea agreement.
Without question, a prisoner with proper proof can state a claim for relief where the State has
failed to live up to its side of a plea bargain. However, we have made it clear that
Prisoners who assert that they agreed to plead guilty in return for
agreements that they would be paroled after serving a specific portion
of their sentences must come forward with some competent evidence
of these agreements. This evidence is readily available either in the
form of a written plea bargain agreement or in the form of a verbatim
record of a plea bargain proceeding required to be kept pursuant to
Tenn. R. Crim. P. 11(g). Without this evidence, a prisoner has failed
to state a claim upon which relief can be granted.
Ringling v. Tennessee Bd. of Paroles, No. 01A01-9708-CV-00416, 1997 WL 718419, at *3 (Tenn.
Ct. App. Nov. 19, 1997) perm. app. denied (Tenn. May 26, 1998). Ms. Boyd’s complaint in this
case was accompanied by no competent evidence of her plea agreement. Consequently, the trial
court did not err in dismissing this portion of the case for failure to state a claim.
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Finally, Ms. Boyd takes issue with a number of the hearing officer’s questions and comments
during her parole hearing. She speculates about what his remarks may have shown he was
considering in making his decision. Our review of the record indicates that none of the hearing
officer’s remarks show that he recommended denial of parole out of caprice or that his decision
rested on a basis the law forbids. In reality, this portion of Ms. Boyd’s argument seeks to draw the
courts into re-evaluating the intrinsic correctness of the Board’s 1997 decision to deny parole. That
is beyond the scope of the writ she seeks.
II.
We affirm the dismissal of Ms. Boyd petition and remand the case to the trial court for
whatever further proceedings may be required. We tax the costs of this appeal to C. D. Boyd for
which execution, if necessary, may issue.
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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