KEVIN RYAN MOSLEY, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9604-CH-00162
VS. )
) Davidson Chancery
) No. 95-3185-I
TENNESSEE BOARD OF PAROLES, )
et al.,
Respondent/Appellee.
)
)
)
FILED
November 1, 1996
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
KEVIN RYAN MOSLEY
N.C.S.C. 134663
7466 Centennial Boulevard
Nashville, Tennessee 37209-1052
Pro Se/Petitioner/Appellant
CHARLES W. BURSON
Attorney General and Reporter
PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee 37243
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
Kevin Mosley, a prisoner in the custody of the Department of Correction,
was twice considered for parole. On each occasion the Parole Board declined to
release him, citing as its reason the seriousness of his offense. Mr. Mosley filed a
Petition for Certiorari with the Chancery Court of Davidson County, contending that
he was entitled to a more definite statement of the Parole Board’s reasons. The
prisoner also argued that the Board erred in failing to consider the results of a
psychological study it had ordered. The Chancery Court dismissed the petition. We
affirm the trial court.
I.
The appellant was convicted of burglary and aggravated robbery and
was sentenced to fifteen years, with eligibility for parole after he had served 30% of
his sentence. On May 19, 1993 he was granted his first parole hearing. The Board
of Paroles denied him parole because of the seriousness of his offense, and
scheduled the next parole hearing for May 1995. However, in May 1995 the Board
continued the hearing in order to obtain a psychological evaluation of the prisoner.
According to Mr. Mosley, he has been a model prisoner, and he had
been told that a positive prognosis by the psychologist would be the decisive factor
as to the grant or denial of parole. The Board-appointed examining psychologist
allegedly determined that no further psychological counseling was needed in order for
him to be released on parole. However on September 15, 1995, the Board denied
him parole. Apparently the Board used the standard form to report its action, simply
entering the initials “SO” on the form to indicate that the reason for declining Mr.
Mosley was the seriousness of his offense.
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Mr. Mosley submitted a Petition for Certiorari to the Chancery Court of
Davidson County, arguing that the Board of Paroles had denied him due process, and
had acted in an arbitrary and capricious manner by using a boilerplate reason to deny
him parole without offering any further explanation, and by ignoring the results of the
psychological evaluation that the Board itself had ordered. The Chancery Court
dismissed the petition for failure to state a claim upon which relief can be granted.
This appeal followed.
II.
We begin, as we must, with the observation that the avenues of redress
available to a prisoner who believes that the Board of Paroles has erred in declining
to grant him parole are very limited.
The United States Supreme Court has ruled that a prisoner has no right
under the United States Constitution to be released on parole prior to the expiration
of a valid sentence. Greenholtz v. Inmates of the Nebraska Penal and Correction
Complex, 442 U.S. 1, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979) (Marshall J.,
dissenting). The Tennessee parole statute, Tenn. Code Ann. § 40-35-503(b) states
in part that “[r]elease on parole is a privilege and not a right.”
In Tennessee, the grant of parole is a discretionary matter vested
exclusively in the Board of Paroles. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d
891 (1960). Also, decisions of the Board of Paroles, unlike those of most other
administrative agencies, are not subject to judicial review under the Administrative
Procedures Act. See Tenn. Code Ann. § 4-5-106(c).
However we have previously held that the Board of Paroles is not totally
immune from judicial scrutiny. See Powell v. Parole Eligibility Review Board, 879
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S.W.2d 871 (Tenn.App. 1994). While the intrinsic correctness of the Board’s
decisions is beyond the scope of judicial review, a Writ of Certiorari gives the court the
right of inquiry into the question of whether the Board is exceeding its authority, or is
acting illegally, fraudulently or arbitrarily. 879 S.W.2d at 873.
III.
The appellant has submitted a well-written pro-se brief in which he
correctly acknowledges the inherent limitations of any challenge to the actions of the
Board of Paroles. However, he insists that his rights to due process entitle him to
receive a more definite statement of the reasons for the parole board’s decision to
decline to grant him parole, and of the evidence the board relied upon.
In support of this proposition, Mr. Mosley cites numerous cases from
different federal jurisdictions, where the courts have said that such a statement was
a component of minimum due process in parole decisions. All of the cases cited by
Mr. Mosley precede the Greenholtz case, supra, which established that
determinations concerning release on parole do not directly implicate any due process
rights under the United States Constitution, but are matters properly to be decided on
the basis of the law of the jurisdiction in which they arise. No cases are cited which
address the question of whether a petitioner is entitled to such relief under Tennessee
law.
For example, the appellant quotes extensively from Wagner v. Gilligan,
425 F.Supp. 1320 (1979), an opinion involving the Ohio parole statutes. A portion of
the quoted language is reproduced below:
“It is obvious that the Authority’s standardized reasons for
denying parole provides no means by which the inmate or a
reviewing body can ascertain whether the Authority’s decision
was rationally based on correct facts or any facts peculiar to
the inmate. . . . The Court finds that the Authority must
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provide each inmate with the grounds for denial of his parole
and the essential facts from which the Authority drew the
inferences that led to its decision.”
425 F.Supp at 1325.
However the Sixth Circuit Court of Appeals reversed the Ohio District
Court’s decision, in accordance with the Greenholtz opinion, supra, which was issued
while Wagner v. Gilligan was on appeal. See Wagner v. Gilligan, 609 F.2d 867
(1979). Mr. Mosley insists, however, that only some aspects of the District Court’s
opinion were reversed by the Sixth Circuit, and that “a fair reading of Greenholtz, infra,
does not hold that the parole board may deny parole simply on no reason, or by
simply checking a form and stating that parole has been denied.”
We believe, however, that the Sixth Circuit issued a blanket reversal of
the lower court’s holdings in Wagner v. Gilligan, and we do not see anything in
Greenholtz that prevents a State from allowing its parole board to notify an inmate of
its actions by checking a box or entering a few characters into a pre-printed form to
indicate its reason for declining parole.
The Greenholtz court determined that the creation of a system of parole
does not create a constitutionally protected liberty interest in early release on the
basis of an inmate’s hope or expectation of parole, unless the parole statute is drafted
in such a way as to give rise to such an interest. Due process rights in parole
determination proceedings are likewise derived from the parole statutes and rules
themselves, and not directly from the Fifth and Fourteenth Amendments to the United
States Constitution.
Having identified the source of any rights the Nebraska prisoners might
have had in relation to parole decisions, the High Court proceeded to examine the
argument that the inmates had been deprived of due process, in light of Nebraska’s
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parole statute. The Court found that the statute, as drafted, did create an expectancy
of release that was entitled to some measure of constitutional protection, but also
concluded that :
“[W]e find nothing in the due process concepts as they have
thus far evolved that requires the Parole Board to specify the
particular ‘evidence’ in the inmate’s file or at his interview on
which it rests the discretionary determination that an inmate
is not ready for conditional release. . . . To require the parole
authority to provide a summary of the evidence would tend to
convert the process into an adversary proceeding and to
equate the Board’s parole release determination with a guilt
determination. . . .”
442 U.S. at 15-16, 99 S.Ct. at 2108, 60 L.Ed.2d at 680-81.
IV.
Of course, the Supreme Court’s interpretation of Nebraska law does not
relieve us of the obligation to determine whether Mr. Mosley has received all the
process to which he is entitled under Tennessee law. However we must first note that
our courts have determined that current Tennessee law does not create a protected
liberty interest in parole. Wright v. Trammel, 810 F.2d 589 (6th Cir. 1987), Wells v.
Board of Paroles, 909 S.W.2d 826 (Tenn. App. 1995).
Secondly, the Board of Paroles is statutorily authorized to deny parole
if release would depreciate the seriousness of the offense. Tenn. Code Ann. § 40-35-
503. The Board has accordingly incorporated this provision into its criteria for granting
or declining parole. Rules of the Board of Paroles No. 1100-1-1-.06(3)(b).
Although we have no way of knowing on the basis of this record the
details of Mr. Mosley’s offenses, it would be belaboring the obvious to state that
aggravated robbery and burglary are both serious offenses. We also find nothing
troubling in the concept that the Board might use that same reason to decline parole
twice in succession, even though paroling a prisoner after his second hearing might
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depreciate the seriousness of his offense less than paroling him at the first opportunity
would.
As for Mr. Mosely’s argument that without a more definite statement of
the reasons for decline, he has no way of knowing how to conform his conduct to the
requirements of the Board, we can only conclude that if he is indeed a model prisoner
he already knows what is required, but that the passage of additional time may also
be necessary, in order not to minimize the gravity of his crimes.
V.
Mr. Mosely also objects to the apparent failure of the Parole Board to
give consideration to the favorable report of the psychologist regarding his mental
state. The psychologist’s report is not found in the record. However, even granting
that it is as favorable as Mr. Mosley reports it to be, we believe the Board should be
able to consult a psychologist or psychiatrist for assistance in determining the
appropriateness of parole in a particular case, without surrendering its own power of
decision to that consultant.
VI.
Mr. Mosley has failed to make a sufficient showing to enable us to
conclude that the Board acted arbitrarily, fraudulently or illegally in declining him
parole. The judgment of the trial court is affirmed. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
_____________________________
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BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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