                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs October 30, 2002

          CHRISTOPHER POPE v. TENNESSEE DEPARTMENT OF
                         CORRECTION

                    Appeal from the Chancery Court for Davidson County
                        No. 01-2092-II   Carol McCoy, Chancellor



                    No. M2001-02937-COA-R3-CV - Filed August 8, 2003


A prisoner in the custody of the Department of Correction was found guilty of a disciplinary offense
and sentenced to punitive segregation. He subsequently filed a Petition for Writ of Certiorari,
claiming that he was not afforded due process during the disciplinary hearing at which he was
convicted. The trial court dismissed his Petition for failure to state a claim. We affirm the trial
court.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Christopher Pope, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephen
R. Butler, Assistant Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                I. A DISCIPLINARY CONVICTION

       Christopher Pope is an inmate in the custody of the Tennessee Department of Correction.
On March 15, 2001, he was issued a disciplinary report for conspiracy to violate state law. The
charge was based on an investigation into a possible conspiracy to bring drugs into the Riverbend
Maximum Security Institution. Apparently, information as to the alleged scheme was obtained
through the inmate telephone system and a confidential informant. The disciplinary board conducted
a hearing, and found Mr. Pope guilty of the charge on March 19. He was sentenced to punitive
segregation and was fined $5.
        Mr. Pope appealed the Board’s decision to Warden Ricky Bell, who affirmed it on March 29,
2001. A subsequent appeal to Commissioner Donal Campbell resulted in another affirmance on May
2, 2001. The inmate then filed a Petition for Writ of Certiorari in the Chancery Court of Davidson
County.1 In his petition, Mr. Pope claimed among other things that he did not receive a fair and
impartial hearing, complained that he was not permitted to conduct cross-examination about a
confidential informant, and insisted that he could not be guilty of conspiracy because a testifying
correctional officer conceded that no drugs had been brought into the institution.

        On August 24, 2001, the Department of Correction filed a Motion to Dismiss Mr. Pope’s
petition under Tenn. R. Civ. P. 12.02(1) and 12.02(6) respectively, for lack of subject matter
jurisdiction and failure to state a claim for which relief can be granted. Mr. Pope’s Response
asserted that he was deprived of the minimal due process that he was entitled to, citing the authority
of Wolff v. McDonnell, 418 U.S. 539 (1974). On November 8, 2001, the trial court ruled on the
motion.

        The court held that Mr. Pope’s petition was timely filed, and thus that it could exercise
jurisdiction. But it dismissed the petition for failure to state a claim. The court relied on the case
of Sandin v. Conner, 515 U.S. 472 (1995), which limits judicial review of prison disciplinary
proceedings that have resulted in penalties such as those imposed on Mr. Pope. This appeal
followed.

                                             II. SANDIN V. CONNER

         In Sandin v. Conner, supra, the Supreme Court reasoned that due process guarantees apply
in the context of prison disciplinary proceedings only when a constitutionally protected liberty
interest is threatened. When the punishment imposed is within “the ordinary incidents of prison
life,” there is no deprivation of a protected liberty interest, and thus the prisoner is not entitled to
invoke the protection of due process.

        Mr. Sandin had been sentenced to thirty days punitive segregation for his disciplinary
infraction, and the court held that such a sentence does not constitute an “atypical or significant
hardship,” that would trigger due process. In accordance with Sandin v. Conner, this court has
consistently rejected due process claims based on challenges to brief sentences of punitive
segregation. See Littles v. Campbell, 97 S.W.3d 568 (Tenn. Ct. App. 2002); Robinson v. Clement,
65 S.W.3d 632 (Tenn. Ct. App. 2001); Williams v. Tennessee Dept. of Corr., No.
M2000-02905-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2002), perm. to appeal denied, (Tenn. Jan.
27, 2003).

       Mr. Pope claims that his disciplinary conviction involves an atypical and significant hardship
which falls outside the ordinary incidents of prison life, because of the consequences that followed.


         1
           Though the petition was not filed until July 3, 2001, Mr. Pope “delivered it to the appropriate individual at
the correctional facility” o n June 28, thus rendering it timely filed in acc ordance with Rule 5.06, T enn. R . Civ. P.

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He complains that he has been moved from minimum security to maximum security which has
caused a postponement of his parole eligibility, and made it impossible for him to earn sentence
reduction credits.

        We have, however, also rejected arguments that such punishments create protected liberty
interests under the Sandin standard. See Hensley, v. Tennessee Department of Correction, No.
M2001-02343-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2003); Littles v. Campbell, 97 S.W.3d 568
(Tenn. Ct. App. 2002)(postponement of parole hearings); Henderson v. Lutche, 938 S.W.2d 428
(Tenn. Ct. App. 1996)(loss of the opportunity to receive sentence reduction credits). It thus appears
to us that the trial court was correct to hold Mr. Pope’s due process claim to be without merit.

                                     III. WRIT OF CERTIORARI

       But even where a prisoner has been found not to be entitled to due process in a disciplinary
proceeding, the court retains the right to issue a writ of certiorari if it believes that the disciplinary
board has exceeded its jurisdiction, or that its actions were illegal, fraudulent or arbitrary. Turner
v. Tennessee Board of Paroles, 993 S.W.2d 78 (Tenn. Ct. App. 1999); Powell v. Parole Eligibility
Review Board, 879 S.W.2d 871 (Tenn. Ct. App. 1994); Yokley v. State, 632 S.W.2d 123 (Tenn. Ct.
App. 1981).

        In the present case, Mr. Pope alleged that the prison disciplinary board did act arbitrarily,
illegally and fraudulently. But the use of these conclusory terms does not entitle him to the writ. See
Powell v. Parole Eligibility Review Board, 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). It is rather
the nature of the specific allegations that determines whether the trial court will exercise its
discretion to issue the writ.

        Mr. Pope’s primary objections to the conduct of the disciplinary hearing are that he was not
allowed to be present while the reporting officer gave testimony about a confidential source, and that
he was convicted of participating in a conspiracy to bring drugs into the prison, despite the fact that
the reporting officer admitted that no drugs were confiscated in the prison as a result of the
investigation. The prisoner concludes that he was convicted “based on no proof and no
corroborating evidence.”

        As Mr. Pope correctly points out, the use of confidential informants in prison disciplinary
proceedings raises a host of questions about the fairness of those proceedings. How is the defendant
to challenge the truthfulness of the informant if he does not even know his identity? How is the
Board to evaluate the reliability of the evidence he presents? Nonetheless, the peculiar
circumstances of prison life sometimes make it necessary to keep the identity of witnesses
confidential. We note that the Uniform Disciplinary Procedures of the Department of Correction,
Index # 502.01(VI)(e) recognizes this by providing that,

        1. The inmate charged with the rule infraction(s) shall have the right to appear in
        person before the board/hearing officer at all times, except:


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                 a. When the board/hearing officer is receiving testimony from a confidential
       source.

       It thus appears to us that there was no per se illegality or arbitrary conduct when Mr. Pope
was excluded from the hearing while the Board heard testimony derived from a confidential source.

        Also, the admission that there was no proof that drugs were actually brought into the prison
by people in communication with Mr. Pope does not negate the charge of conspiracy. The essence
of a conspiracy is an agreement by two or more people to commit a criminal offense, and an overt
act by one or more of the conspirators in furtherance of that agreement. Tenn. Code Ann. § 39-12-
103.

       Even in a criminal prosecution, it is not necessary to prove that the object of the conspiracy
was accomplished in order to obtain a conviction for conspiracy, see Tenn. Code Ann. § 39-12-
103(g). Thus, the apparent failure of Mr. Pope’s alleged accomplice(s) to bring drugs into the prison
does not negate the evidence of conspiracy, although it may go to the weight of that evidence.

         However, under the writ of certiorari it is not the function of the trial court to re-weigh the
evidence. Robinson v. Clement, 65 S.W.3d 632 (Tenn. Ct. App. 2001); 421 Corp. v. Metropolitan
Government of Nashville and Davidson County, 36 S.W.3d 469 (Tenn. Ct. App. 2000). As we stated
above, the court may only examine the lower tribunal's decision to determine whether it exceeded
its jurisdiction or acted illegally, fraudulently, or arbitrarily.

        Finally, we interpret Mr. Pope’s complaint that his conviction was “based on no proof and
no corroborating evidence” as an attack on the intrinsic correctness of the disciplinary board’s
determination. But the intrinsic correctness of the Board’s decision is not reviewable under the writ
of certiorari. Turner v. Tennessee Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999); Arnold
v. Tennessee Board of Paroles, 956 S.W.2d 478 (Tenn. 1997). We must therefore conclude that the
trial court did not abuse its discretion in declining to grant the writ.

                                                  IV.

       The order 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, Christopher Pope.



                                                _________________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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