                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT KNOXVILLE
                         Submitted on Briefs, January 24, 2007

   ANTWAN ANGLIN v. SERGEANT LEROY TURNER, WARDEN, JIM
      WORTHINGTON, BOTH BRUSHY MOUNTAIN REGIONAL
     CORRECTIONAL FACILITY (SITE 2) AND GEORGE LITTLE,
      COMMISSIONER OF THE TENNESSEE DEPARTMENT OF
                       CORRECTIONS

                   Direct Appeal from the Circuit Court for Morgan County
                   No. 03-CV-316 Hon. Russell Simmons, Circuit Judge



                  No. E2006-01764-COA-R3-CV - FILED MARCH 28, 2007


Prisoner filed Petition for a writ of certiorari. The Trial Court refused to issue the writ. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.

Antwan Anglin, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Report, and Kellena Baker, Nashville, Tennessee, for
appellees.



                                              OPINION


               Petitioner, a prisoner at Brushy Mountain Correctional Complex, filed this action in
Circuit Court in the form of a Petition for a Writ of Certiorari, naming Sergeant Leroy Turner,
Warden Jim Worthington, Commissioner George Little of TDOC, and TDOC as respondents.

                 Petitioner alleged that his cell was “shaken down”, and that the guards allegedly
found “several packets of what appeared to be marijuana in a jar.” (Quoting from the disciplinary
report filed by the guards.) Petitioner alleged that he pleaded not guilty to the disciplinary violation,
and a hearing was held before Sergeant Leroy Turner three days after the charge. The Petition states
that the hearing officer relied on the testimony of the guards, who testified that marijuana was found
in petitioner’s cell, but he asserted that there was no evidence submitted that the substance was
actually tested and confirmed to be marijuana. The Petition argues that due process required that the
substance be produced and tested before he could be found guilty, but the Warden affirmed the
decision, finding him guilty of the charge.

                Respondents filed a Motion To Dismiss, asserting that Petitioner had failed to state
a claim for issuance of the Writ, and asserted that Petition had failed to allege facts sufficient to show
the Board acted illegally, and that the Petitioner’s due process rights had been violated.

                The Court then entered an Order of Dismissal.

                 The Trial Court found that the issue to be decided was whether the Board exceeded
its jurisdiction. The Court noted that the reporting officer testified that marijuana was found in
Petitioner’s cell, and Petitioner admitted that this occurred. The Court thus concluded there was
evidence to support the inferior tribunal’s decision, and the constitutional safeguards were satisfied.
Further, the Court found that the sanctions imposed on Petitioner did not impose an atypical and
significant hardship.

                Petitioner raises these issues on appeal:

                1.      Whether the trial court erred in dismissing petitioner’s Petition for Writ of
                        Certiorari?

                2.      Whether petitioner’s due process rights were violated?

                As this Court has stated:

                A writ of certiorari is an order from a superior court to an inferior tribunal to send up
                a complete record for review, so that the court can determine whether that tribunal
                has exceeded its jurisdiction, or has acted illegally, fraudulently or arbitrarily. The
                writ is not available as a matter of right; its grant or denial is within the sound
                discretion of the trial court, and will not be reversed on appeal unless there is abuse
                of that discretion.

              Further, the scope of review under the common law writ of certiorari is very narrow.
              It does not involve an inquiry into the intrinsic correctness of the decision of the
              tribunal below, but only into the manner in which the decision was reached.
Hall v. McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2001)(citations omitted).

               The Supreme Court has also held that the phrases “exceeding the jurisdiction” and
“acting illegally”, both refer to “actions by such inferior tribunal beyond, not within, its


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jurisdiction”. Further, the Court explained:

               Without undertaking to define that phrase of the statute with exactness or to say what
               it includes, we think it clear that the common-law writ, as distinguished from the
               statutory writ, or certiorari in lieu of appeal, may not be resorted to for the correction
               of technical or formal errors, not affecting jurisdiction or power, or for the correction
               of defects that are not radical, amounting to an illegality that is fundamental, as
               distinguished from an irregularity.

                                                 ***

               The writ has never been employed to inquire into the correctness of the judgment
               rendered where the court had jurisdiction, and was therefore competent. Hence it has
               been held that the supervisory jurisdiction of the court on a certiorari must be
               restricted to an examination into the external validity of the proceedings had in the
               lower court. It cannot be exercised to review the judgment as to its intrinsic
               correctness, either on the law or on the facts of the case. The supervisory powers of
               the court should not be confounded with its appellate jurisdiction.

Hoover Motor Exp. Co. v. Railroad & Public Utilities Comm., 261 S.W.2d 233, 236 (Tenn.
1953)(citations omitted).

                Petitioner argues the Trial Court erred in dismissing his writ, relying on the case of
Willis v. Tenn. Dept. of Corrections, 113 S.W.3d 706 (Tenn. 2003). In the Willis case, the petitioner
who had been convicted of a disciplinary offense sought a writ of certiorari, alleging that the board
acted illegally by failing to comply with essential legal requirements, including failure to give him
notice of the charges against him, and failing to allow him to present exculpatory evidence at the
hearing. Id. Defendant filed a Motion to Dismiss, which was granted. The Supreme Court,
however, explained that when reviewing a dismissal under Tenn. R. Civ. P. 12.02(6), the factual
allegations must be taken as true, and that because a motion to dismiss only tested the legal
sufficiency of the petition, the Court should only grant the motion if the plaintiff could prove no set
of facts in support of his claim that would entitle him to relief. Id.

                The Court went on to discuss the plaintiff’s claims of lack of notice/lack of ability
to introduce evidence, and stated that since these factual allegations had to be taken as true, and
since, if true, these allegations would constitute actions in violation of the TDOC Uniform
Disciplinary Procedures, the Trial Court erred in granting the Motion to Dismiss.

               In this case, as noted, plaintiff only alleged that the substance taken from his cell was
not shown to have been “tested and confirmed” to be marijuana, even though the guards who found
same did testify that it was marijuana.

               Plaintiff points to no policies or procedures, however, which would require the


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physical evidence be presented at the hearing, or that the physical evidence be “tested and
confirmed”. As Petitioner admitted, the hearing officer based his decision on the testimony of the
guards who found the substance, and Petitioner has shown no requirement in the disciplinary
procedures that a test had to be performed on the substance to corroborate the guards’ testimony.
Taking petitioner’s allegations as true, the allegations fail to establish that any policy or procedure
was violated, and thus do not show that the Board acted illegally. Petitioner seems to be asserting
that the board acted on insufficient evidence, but as stated in Hoover, a writ “cannot be exercised to
review the judgment as to its intrinsic correctness, either on the law or on the facts of the case”. The
writ is simply employed to determine if the Board exceeded its jurisdiction. Since petitioner has not
alleged facts sufficient to show the Board exceeded its jurisdiction, the Trial Court properly
dismissed the Petition.

                 Petitioner also alleges his due process rights were violated for the foregoing reasons.
But, as the Supreme Court also explained in Willis, Petitioner must show that the punishment he was
given was sufficiently harsh to amount to the imposition of “atypical and significant hardship . . . in
relation to the ordinary incidents of prison life” in order to show that a liberty interest existed which
required due process protection. Id., quoting Sandin v. Conner, 115 S. Ct. 2293 (1995). In this case,
petitioner argues that the punishment of 10 days of segregation, and 6 months of denial of his right
to receive visitors/packages, was atypical and a significant hardship. As the Supreme Court observed
in Willis, the Sandin Court found that 30 days of punitive segregation “was not a dramatic departure
from the basic conditions of the prisoner’s indeterminate sentence, and therefore, the prisoner was
not entitled to due process protection.” Id. at 711. Likewise, the Willis Court found that a 30 day
segregation was also not atypical or harsh in that case. Id.

                It follows that a 10 day segregation and limits on visitors/packages is not sufficiently
harsh to be “atypical” of or a “significant hardship . . . in relation to the ordinary incidents of prison
life.” Id, especially, since he was found guilty of possessing an illegal substance in his cell.
Moreover, he failed to show that he had a liberty interest that required due process safeguards.
Assuming arguendo he did have such a liberty interest, he did not establish a lack of due process in
this instance.

                 We affirm the Trial Court’s finding that Petitioner’s constitutional rights have not
been violated.

             We affirm the Trial Court’s dismissal of the Petition and assess the cost against
Antwan Anglin.




                                                         ______________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.



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