Michael Halliburton v. Tennessee Board of Parole

04/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 1, 2022
MICHAEL HALLIBURTON v. TENNESSEE BOARD OF PAROLE
Appeal from the Chancery Court for Davidson County
No. 21-42-IV Russell T. Perkins, Chancellor
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No. M2021-00470-COA-R3-CV
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This appeal arises from the denial of parole to an inmate by the Tennessee Board of Parole.
The Tennessee Board of Parole denied the inmate parole in March 2020. The inmate’s
administrative appeal was also denied. Thereafter, the inmate filed a petition for writ of
certiorari with the chancery court. However, the chancery court dismissed the petition
without prejudice due to outstanding costs in prior civil cases. The inmate then filed a
second petition with the chancery court. The chancery court dismissed the second petition
for lack of subject matter jurisdiction because it was not filed within sixty days of the
Tennessee Board of Parole’s final decision in accordance with Tennessee Code Annotated
section 27-9-102. The inmate appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KRISTI M. DAVIS, JJ., joined.
Michael Halliburton, Hartsville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter, and Dawn Jordan, Senior Deputy
Attorney General, for the appellee, Tennessee Board of Parole.
OPINION
I. FACTS & PROCEDURAL HISTORY
A Shelby County jury convicted Michael Halliburton of one count of attempted
first-degree premeditated murder, one count of domestic assault, and two counts of
aggravated assault, for the brutal beating of his wife with a metal knife sharpener. State v.
Halliburton, No. W2015-02157-CCA-R3-CD, 2016 WL 7102747, at *1 (Tenn. Crim. App.
Dec. 6, 2016). Mr. Halliburton first became eligible for parole in March 2018, but after a
hearing, the Tennessee Board of Parole (“the Board”) denied him parole. The Board denied
him parole again after a hearing in March 2020. On July 1, 2020, the Board also denied
Mr. Halliburton’s request for an administrative appeal. The following week Mr.
Halliburton received notification of the Board’s decision to deny his request. Thereafter,
Mr. Halliburton filed a petition for writ of certiorari on August 21, 2020. On November
13, 2020, however, the chancery court dismissed his petition without prejudice due to his
outstanding costs in prior civil cases.1
On January 15, 2021, Mr. Halliburton filed a second petition for writ of certiorari.
The Board filed a motion to dismiss the petition stating that Mr. Halliburton’s petition was
filed more than sixty days subsequent to the Board’s final decision. Therefore, the Board
asserted that the petition failed to meet the statutory prerequisites of Tennessee Code
Annotated section 27-9-102 and the chancery court lacked subject matter jurisdiction over
the petition. Additionally, the Board asserted that the savings statute was inapplicable to
claims against the State of Tennessee and its agencies. Mr. Halliburton filed a response to
the motion to dismiss, and the Board filed a reply to Mr. Halliburton’s response.
In April 2021, the chancery court entered its final order. The chancery court held
that it lacked subject matter jurisdiction over the petition because the petition was not filed
within sixty days of the Board’s final decision in accordance with Tennessee Code
Annotated section 27-9-102. Furthermore, the chancery court held that the savings statute
was not applicable to actions against the State of Tennessee, which included its
departments, commissions, boards, institutions, and municipalities. Thus, the chancery
court granted the Board’s motion and dismissed Mr. Halliburton’s petition. Thereafter,
Mr. Halliburton timely filed his appeal.
II. ISSUES PRESENTED FOR REVIEW
Mr. Halliburton presents the following issues for review on appeal, which we have
slightly restated:
1. Whether the Tennessee Legislature overstepped its constitutional bounds in
violation of the Tennessee Constitution and the U.S. Supreme Court precedent in
Sessions v. Dimaya, 138 S.Ct. 1204, 200 L.Ed.2d 549, 86 U.S.L.W. 4189 (2018),
regarding separation of powers by establishing the Board;
1
Mr. Halliburton appealed the dismissal of his first petition. After the Tennessee Court of Appeals
decision in Halliburton v. Tenn. Bd. of Parole, No. M2020-01657-COA-R3-CV, 2021 WL 2827329, at *1
(Tenn. Ct. App. July 7, 2021), Mr. Halliburton filed an application for permission to appeal to the Tennessee
Supreme Court. The Tennessee Supreme Court entered an order granting his application for permission to
appeal and remanding the case to the Tennessee Court of Appeals. Following remand, the Tennessee Court
of Appeals affirmed the judgment of the trial court. Halliburton v. Tenn. Bd. of Parole, No. M2020-01657-
COA-R3-CV, 2022 WL 802618, at *1-7 (Tenn. Ct. App. March 17, 2022).
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2. Whether the Board’s use of the “Average Time Chart” is unconstitutional;
3. Whether the personnel for the Board violate due process because they are not
learned in the law and their decisions concern liberty interests for paroled inmates;
4. Whether this Court’s “confused parole jurisprudence” regarding liberty interests
and due process should be revisited;
5. Whether the Board’s failure to provide fair notice violates due process;
6. Whether the procedures regarding appeal to the chancery court unconstitutionally
transform the chancery court from a court of equity into an appellate court;
7. Whether the language of the Board’s discretionary determinations is
unconstitutionally vague per Sessions v. Dimaya;
8. Whether the Board’s unconstitutional establishment, legally unqualified personnel,
pro forma language, secretive evidentiary procedures, and lack of effective judicial
oversight make it an inquisitorial body that is anathema to the cultural and legal
traditions of the American people;
9. What is the nature of the interest created by the State of Tennessee for itself and the
parole eligible inmate in holding a parole hearing if there is no life, property, or
liberty interest implicated;
10. Whether the dismissal of Mr. Halliburton’s writ of certiorari renders Tennessee
Code Annotated section 41-21-812 unconstitutional because it (a) violates the
Tennessee Constitution and U.S. Constitution; and (b) makes fee payments a bar to
prevent lawsuits by indigent inmates regardless of their merit;2
11. Whether statutes and rules that are unconstitutional ab initio subject Mr. Halliburton
to a statute of limitations so that he is denied access to the courts in order to
challenge the very same unconstitutional statutes and administrative rules;
12. Whether the chancery court’s and this Court’s failure to address Mr. Halliburton’s
claims creates a constitutionally deficient review prejudicial to his case; and
13. Whether Chief Justice Page abrogated his sworn duty to impartiality in Mr.
Halliburton’s cases in violation of the Tennessee Constitution and the U.S.
Constitution, thereby violating Mr. Halliburton’s constitutional right to due process.
The Board presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the chancery court properly dismissed the petition as it was not filed within
sixty days of the Board’s administrative appeal decision; and
2. Whether the chancery court properly determined that the saving statute, Tennessee
Code Annotated section 28-1-105, is not applicable to Mr. Halliburton’s petition
against the Board, a state agency.
For the following reasons, we affirm the chancery court’s decision.
2
This issue raised by Mr. Halliburton concerning Tennessee Code Annotated section 41-21-812
was considered in a separate appeal with this Court. Halliburton, 2022 WL 802618, at *1-7.
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III. DISCUSSION
On appeal, Mr. Halliburton raises thirteen issues. However, the dispositive issue is
whether the chancery court lacked subject matter jurisdiction. “Subject matter jurisdiction
refers to a court’s ‘lawful authority to adjudicate a controversy brought before it.’” Moore
v. Tenn. Bd. of Parole, No. M2020-00982-COA-R3-CV, 2021 WL 4472061, at *2 (Tenn.
Ct. App. Sept. 30, 2021) (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.
2000)). As such, subject matter jurisdiction is “a threshold inquiry.” Id. (quoting Redwing
v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012)). A court
must dismiss a case if it lacks subject matter jurisdiction. Id. (citing Dishmon v. Shelby
State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999)). “Tennessee Rule of Civil
Procedure 12.02(1) governs a motion to dismiss for lack of subject matter jurisdiction.”
Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012). The determination of
whether subject matter jurisdiction exists is a question of law, which we review de novo
without a presumption of correctness. Id. at 712-13 (quoting Northland, 33 S.W.3d at 729).
We are able to resolve the issue of subject matter jurisdiction by answering the two
questions presented by the Board: (1) whether the chancery court properly dismissed the
petition as it was not filed within sixty days of the Board’s administrative appeal decision,
and (2) whether the chancery court properly determined that the saving statute is not
applicable to Mr. Halliburton’s petition against the Board.
In regard to the first issue, we have explained that “[t]he common-law writ of
certiorari serves as the proper procedural vehicle through which prisoners may seek review
of decisions by parole eligibility review boards and other similar administrative tribunals.”
McLemore v. Traughber, No. M2007-00503-COA-R3-CV, 2007 WL 4207900, at *6
(Tenn. Ct. App. Nov. 28, 2007) (citing Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 712
(Tenn. 2003)). “The only procedure for a prisoner to obtain judicial review of an action or
decision of the Board is by a petition for common-law writ of certiorari.” Id. (quoting
Hickman v. Tenn. Bd. of Paroles, 78 S.W.3d 285, 290 n.4 (Tenn. Ct. App. 2001)).
Tennessee Code Annotated section 27-9-102 provides that a petition for writ of certiorari
must be filed in chancery court within sixty days from the entry of the order or judgment.3
See Tenn. Code Ann. § 27-9-102. “The purpose of the provision requiring that a petition
for writ of certiorari be filed within sixty days of entry of final judgment is ‘to promote the
timely resolution of disputes by establishing filing deadlines that will keep cases moving
through the system.’” Metz v. Metro. Gov’t of Nashville & Davidson Cty., 547 S.W.3d
221, 225 (Tenn. Ct. App. 2017) (quoting Hickman, 78 S.W.3d at 289). Additionally, “[t]he
sixty[-]day time limit is jurisdictional and the ‘[f]ailure to file a writ within this period
precludes review of such decisions by the courts.’” Id. (quoting Johnson v. Metro. Gov’t
3
“This time limit applies to common law as well as statutory writs.” Fairhaven Corp. v. Tenn.
Health Facilities Comm’n, 566 S.W.2d 885, 886 (Tenn. Ct. App. 1976) (citing Wilson v. Town of
Greeneville, 509 S.W.2d 495 (Tenn. Ct. App. 1973)).
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for Nashville Davidson Cty., 54 S.W.3d 772, 774 (Tenn. Ct. App. 2001)). As we have
often explained, “the sixty-day statute of limitations is mandatory and jurisdictional.
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.” Ritchie v. Tenn. Bd. of Prob. & Parole, No. M2015-00187-COA-R3-CV,
2015 WL 6671336, at *4 (Tenn. Ct. App. Oct. 30, 2015) (quoting Blanchard v. Tenn. Bd.
of Prob. & Parole, No. E2012-00663-COA-R3-CV, 2012 WL 5993734, at *3 (Tenn. Ct.
App. Dec. 3, 2012)).
The sixty-day time limit began running when Mr. Halliburton exhausted his
administrative appeal in July 2020. See id. at *5 (“This Court has, in numerous cases,
begun the running of the sixty-day limitation period provided in Tennessee Code
Annotated § 27-9-102 on the date the petitioner exhausted his or her administrative
appeal.”). Mr. Halliburton timely filed a petition for writ of certiorari on August 21, 2020.
However, the chancery court dismissed his petition without prejudice on November 13,
2020, due to his outstanding costs in prior civil cases. On January 15, 2021, Mr.
Halliburton filed his second petition for writ of certiorari. Mr. Halliburton’s second
petition was not filed within the sixty-day time limit in accordance with Tennessee Code
Annotated section 27-9-102.
This case is similar to Hughes v. Tenn. Bd. of Prob. & Parole, No. M2019-00487-
COA-R3-CV, 2020 WL 1527003, at *1 (Tenn. Ct. App. Mar. 31, 2020), which involved
three petitions. The first petition was timely filed in 2012, but was dismissed because the
petitioner had unpaid court costs from two prior lawsuits. Id. The petitioner attempted to
file a second petition in 2017, but the court clerk did not accept the petition for filing
because the court costs were still unpaid. Id. The petitioner then filed a third petition in
2018 after paying his outstanding court costs. Id. However, the chancery court dismissed
the petition for lack of subject matter jurisdiction because the petitioner failed to file the
petition within sixty days of the Board’s final decision. Id. at *2. The petitioner argued
that the sixty-day period for filing restarted when his outstanding court costs were paid in
full. Id. at *1. This Court rejected that argument for two reasons: (1) the petitioner waited
more than sixty days to file his third petition anyway, so even assuming arguendo that
tolling would apply to temporarily stop the clock, his petition was still untimely; and (2)
another case had already rejected this argument and stated that the Tennessee Code
Annotated section 27-9-102 did not support tolling. Id. at *3. We explained that Tennessee
Code Annotated section 27-9-102 did not include a tolling provision:
In fact, such a provision would run counter to the clear wording and purpose
of the mandatory and jurisdictional limitations period set forth in [the
statute]. It would serve to reward an inmate who is delinquent in paying
court costs by allowing him or her to set a personal deadline for filing a
petition for writ of certiorari by deciding when to pay outstanding court costs.
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Id. (quoting Meeks v. Tenn. Bd. of Prob. & Parole, No. M2007-00584-COA-R3-CV, 2008
WL 802458, at *3 (Tenn. Ct. App. Mar. 24, 2008)). Thus, we concluded in Hughes that
the chancery court appropriately dismissed the third petition for lack of subject matter
jurisdiction. Id. at *4. Likewise, in the case at bar, the chancery court properly dismissed
the petition as it no longer had subject matter jurisdiction.
We also address whether the savings statute, Tennessee Code Annotated section 28-
1-105, is applicable to Mr. Halliburton’s petition. The savings statute states in part that:
(a) If the action is commenced within the time limited by a rule or statute of
limitation, but the judgment or decree is rendered against the plaintiff upon
any ground not concluding the plaintiff’s right of action, . . . the plaintiff, or
the plaintiff’s representatives and privies, as the case may be, may, from time
to time, commence a new action within one (1) year after the reversal or
arrest.
Tenn. Code Ann. § 28-1-105(a). “The purpose of the Tennessee savings statute is to
provide a diligent plaintiff an opportunity to renew a suit that is dismissed by any judgment
or decree that does not conclude the plaintiff’s right of action.” Cronin v. Howe, 906
S.W.2d 910, 912 (Tenn. 1995) (citing Dukes v. Montgomery Cty. Nursing Home, 639
S.W.2d 910, 913 (Tenn. 1982)). This Court has previously addressed this issue in Gore v.
Tenn. Dep’t of Corr., 132 S.W.3d 369, 378-79 (Tenn. Ct. App. 2003) and found the
assertion without merit. In Gore, we stated that the savings statute does not specifically
state that it is applicable to the sovereign State of Tennessee, has been held to be in
derogation of sovereign immunity, and does not toll any statute of limitations as to the State
of Tennessee. Id. at 379 (citing Nance v. City of Knoxville, 883 S.W.2d 629 (Tenn. Ct.
App. 1994); Brown v. State, 783 S.W.2d 567 (Tenn. Ct. App. 1989); Stokes v. Univ. of
Tenn., 737 S.W.2d 545 (Tenn. Ct. App. 1987) (cert. denied 485 U.S. 935, 108 S.Ct. 1110,
99 L.Ed.2d 271, (1988)); Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001).
We have explained that the savings statute is a general procedural statute. Williams
v. Memphis Light, Gas & Water Div., 773 S.W.2d 522, 523 (Tenn. Ct. App. 1988).
Tennessee Code Annotated section 28-1-105 has “application to statutes of limitation of a
general nature which relate to the remedy only . . . .” Id. (quoting Auto. Sales Co. v.
Johnson, 122 S.W.2d 453, 456 (Tenn. 1938)). In Johnson, the Tennessee Supreme Court
discussed whether the savings statute applied to the State. Johnson, 122 S.W.2d at 456-
58. The Tennessee Supreme Court held that “general procedural statutes are not held to
apply to a State unless expressly so provided . . . .” Id. at 456. The Tennessee Supreme
Court clarified its holding from Johnson in a later decision:
Although this Court concluded that the savings statute did not apply, we
emphasized the special rules governing actions against the State. We said
that suits against the State can be maintained only as authorized by statutes;
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that statutes permitting suits against the State must be strictly construed; and
that general procedural statutes do not apply against the State unless the State
is specifically named therein. [Johnson,] 122 S.W.2d at 454-55. Because it
followed the recitation of those particular, specific rules, the broad statement
regarding the application of the savings statute should be limited, in our view,
to the context in which it was made, statutes authorizing suits against the
State or other governmental entities. See e.g., Brent v. Town of Greeneville,
203 Tenn. 60, 309 S.W.2d 121 (Tenn. 1957) (savings statute does not apply
to annexation actions); Williams v. Memphis Light Gas and Water Div., 773
S.W.2d 522 (Tenn. App. 1988) (savings statute does not apply to actions
brought pursuant to the Tennessee Governmental Tort Liability Act).
Cronin, 906 S.W.2d at 914. “[T]he State” includes “the departments, commissions, boards,
institutions and municipalities of the State.” Davidson v. Lewis Bros. Bakery, 227 S.W.3d
17, 19 (Tenn. 2007) (quoting Metro. Gov’t of Nashville & Davidson Cty. v. Allen, 415
S.W.2d 632, 635 (Tenn. 1967)). Therefore, Tennessee Code Annotated section 28-1-105
is not applicable here. See Rayburn v. Bd. of Prof’l Responsibility of Sup. Ct. of Tenn., 300
S.W.3d 654, 657 (Tenn. 2009) (“[P]rinciples of sovereign immunity preclude the
application of the one-year savings statute, Tennessee Code Annotated section 28-1-
105(a). A petition for certiorari must, therefore, be filed within sixty days of the panel
judgment in order to preserve an appeal.”).
Moreover, “[w]hen a statute which creates a right of action expressly limits the time
in which suit to enforce the right may be brought, time is of the essence of the right and the
limitation of the remedy is a limitation of the right.” Johnson, 122 S.W.2d at 458. Similar
to Johnson, “we have here a statute which expressly provides a condition precedent,
compliance with which is essential in order to confer jurisdiction.” Williams, 773 S.W.2d
at 523 (quoting Johnson, 122, S.W.2d at 456). Mr. Halliburton was required by Tennessee
Code Annotated section 27-9-102 to file his petition for writ of certiorari within sixty days
from the entry of the order or judgment. See Tenn. Code Ann. § 27-9-102. Compliance
with this condition precedent was essential in order to confer jurisdiction. Williams, 773
S.W.2d at 523 (quoting Johnson, 122, S.W.2d at 456). As we previously discussed, Mr.
Halliburton’s second petition was filed beyond the sixty-day time period in accordance
with Tennessee Code Annotated section 27-9-102. Therefore, the chancery court properly
dismissed the petition because it no longer had subject matter jurisdiction and the savings
statute does not apply.
Because we found that the chancery court lacked subject matter jurisdiction and the
savings statute does not apply, we reiterate that the court lacks the “‘lawful authority to
adjudicate a controversy brought before it.’” Moore, 2021 WL 4472061, at *2 (quoting
Northland, 33 S.W.3d at 729). Mr. Halliburton argues that this Court’s failure to address
his claims creates a “constitutionally deficient review prejudicial” to his case. We
recognize that Mr. Halliburton is acting pro se in this case. “[W]e give ‘pro se litigants
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who are untrained in the law a certain amount of leeway in drafting their pleadings and
briefs . . . .’” Id. at *3 (quoting Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App.
2003)). However, “we are not at liberty to ‘excuse pro se litigants from complying with
the same substantive and procedural rules that represented parties are expected to
observe.’” Id. at *3 (quoting Young, 130 S.W.3d at 63). Furthermore, “this is especially
true when compliance with the rules is necessary to invoke the court’s subject matter
jurisdiction.” Id. Finding that the court lacks subject matter jurisdiction over Mr.
Halliburton’s second petition, we conclude that all other issues are pretermitted.
IV. CONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to the appellant, Michael Halliburton, for which execution may
issue if necessary.
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CARMA DENNIS MCGEE, JUDGE
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