                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                       ASSIGNED ON BRIEFS JULY 20, 2010

    ALVIN SEAGROVES v. STATE OF TENNESSEE and TENNESSEE
              BOARD OF PROBATION & PAROLE

              Direct Appeal from the Circuit Court for Davidson County
                      No. 09C2386     Joe P. Binkley, Jr., Judge


                 No. M2009-01890-COA-R3-CV - Filed August 4, 2010


This appeal involves a prisoner who has filed a petition for writ of certiorari in the wrong
court for the second time. The instant petition was filed in the Davidson County Circuit
Court, which dismissed the petition upon concluding that it should have been filed in
Davidson County Chancery Court. The prisoner appeals, contending that the Circuit Court
should have exercised jurisdiction over the petition or transferred it to the proper court. We
affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Alvin Seagroves, Pikeville, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
Kellen A. Baker, Assistant Attorney General, Nashville, Tennessee, for the appellees, State
of Tennessee and Tennessee Board of Probation and Parole
                                               OPINION

                               I.   F ACTS & P ROCEDURAL H ISTORY

        Alvin Seagroves is an inmate in the custody of the Tennessee Department of
Correction at a correctional facility located in Pikeville, Tennessee. On July 13, 2009, Mr.
Seagroves filed a pro se petition for writ of certiorari in the Circuit Court of Davidson
County, seeking a review of the Board of Probation and Parole’s decision to deny him parole.
According to Mr. Seagroves’ petition, his parole hearing was on February 28, 2008, and he
was denied parole based on the seriousness of his offense. Mr. Seagroves’ petition further
stated that his appeal of the decision was denied on June 10, 2008. The petition goes on to
state:

       Petitioner had filed a timely and proper writ on this matter, on June 25, 2008,
       into the Circuit Court for Pikeville, Tennessee. However, after setting [sic] on
       said writ for a year, the Pikeville Court, issued an order June 15, 2009,
       dismissing said writ, stating, writ must be filed in Davidson County Circuit
       Court.

Attached to the petition was an order from the Circuit Court of Bledsoe County,1 signed by
the judge on June 15, 2009, dismissing a petition for writ of certiorari filed by Mr. Seagroves
based upon a finding that jurisdiction over the matter “lies exclusively in the Chancery Court
of Davidson County.” (emphasis added).

      The Davidson County Circuit Court entered an order on August 13, 2009, dismissing
Mr. Seagroves’ petition based upon a finding that the petition should have been filed in the
Davidson County Chancery Court. Mr. Seagroves timely filed a notice of appeal.

                                       II.   I SSUES P RESENTED

       Mr. Seagroves presents the following issues, as we perceive them, for review:

1.     Whether the Davidson County Circuit Court erred in concluding that it lacked
       jurisdiction; and
2.     Whether the Davidson County Circuit Court erred in failing to transfer the petition to
       the proper court.

For the following reasons, we affirm the decision of the circuit court.

       1
           Pikeville is located in Bledsoe County.

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                                            III.    D ISCUSSION

        “‘The sole remedy available when a prisoner alleges that the Board of Paroles has
acted improperly is to file a writ of certiorari in the Chancery Court of Davidson County.’”
Settle v. Bell, No. M2007-02743-COA-R3-CV, 2008 WL 4725599, at *1 (Tenn. Ct. App.
E.S. Oct. 28, 2008) (quoting Ferrell v. State, No. 01CO1-9610-CR-00454, 1997 WL 578999
at *1 (Tenn. Crim. App. Sept. 19, 1997)). “Exclusive jurisdiction for judicial review of an
action of the Board of Probation and Parole lies with the Chancery Court of Davidson County
through a writ of certiorari.” Long v. Tenn. Bd. of Probation & Parole, 143 S.W.3d 787,
793 (Tenn. Crim. App. 2004) (citing Norton v. Everhart, 895 S.W.2d 317, 319-20 (Tenn.
1995); Hopkins v. Tenn. Bd. of Paroles & Probation, 60 S.W.3d 79, 82 (Tenn. Ct. App.
2001); South v. Tenn. Bd. of Paroles, 946 S.W.2d 310, 311 (Tenn. Ct. App. 1996)). As such,
the Davidson County Circuit Court did not err in its conclusion that it lacked jurisdiction to
consider Mr. Seagroves’ petition.

       Mr. Seagroves contends that the trial court should have transferred this action to the
Davidson County Chancery Court rather than dismissing it. Tennessee Code Annotated
section 16-1-116 provides, in relevant part:

                 Notwithstanding any other provision of law or rule of court to the
       contrary, when an original civil action . . . is filed in a state or county court of
       record . . . and such court determines that it lacks jurisdiction, the court shall,
       if it is in the interest of justice, transfer the action or appeal to any other such
       court in which the action or appeal could have been brought at the time it was
       originally filed. Upon such a transfer, the action or appeal shall proceed as if
       it had been originally filed in the court to which it is transferred on the date
       upon which it was actually filed in the court from which it was transferred.

(emphasis added). Transfer pursuant to this statute is not automatic.2 Turner v. State, 184
S.W.3d 701, 705 (Tenn. Ct. App. 2005) (citing Elliott v. Akey, No. E2004- 01478-COA-R3-
CV, 2005 WL 975510, at *3 (Tenn. Ct. App. Apr. 27, 2005)). The trial court determines, in


       2
           Also relevant to this appeal, Tennessee Code Annotated section 16-2-107 provides:

                In judicial districts that have a separate circuit and chancery court or in districts that
       have more than one (1) division of circuit or chancery court, if a civil cause of action is filed
       in the improper court or the improper division of court within the judicial district, upon the
       motion of either party, or upon the court's own motion, the civil cause of action may be
       transferred to the proper court or proper division within such district.

(emphasis added).

                                                      -3-
its discretion, whether a transfer is warranted. Id. “We use an abuse of discretion standard
in reviewing the trial court's decision not to transfer the action to the proper venue.” Hayes
v. State, No. M2009-00371-COA-R3-CV, 2009 WL 3246626, at *3 (Tenn. Ct. App. W.S.
Oct. 8, 2009) (citing Jones v. TN Dept. of Corrections, M2004-01713-COA-R3-CV, 2007
WL 1241341, at *2 (Tenn. Ct. App. 2007)).

       We have previously recognized that where an inmate’s complaint is untimely filed and
subject to dismissal on that ground by any court hearing it, neither the interest of justice nor
principles of judicial economy would be served by transfer to another court. See Johnson
v. Corr. Corp. of Am., No. M2004-01301-COA-R3-CV, 2006 WL 236899, at *2 (Tenn. Ct.
App. Jan. 31, 2006). A petition for writ of certiorari must be filed within sixty days from the
entry of the order of which the petitioner seeks review. Tenn. Code Ann. § 27-9-102. This
time limit is “mandatory and jurisdictional.” Thandiwe v. Traughber, 909 S.W.2d 802, 804
(Tenn. Ct. App. 1994). “Failure to file the petition within this time limit results in the
challenged judgment becoming final, which deprives a reviewing court of jurisdiction over
the matter.” Blair v. Tenn. Bd. of Probation & Parole, 246 S.W.3d 38, 40 (Tenn. Ct. App.
2007). The party filing the petition then loses his or her right to seek judicial review because
the petition is time-barred. Hickman v. Tenn. Bd. of Paroles, 78 S.W.3d 285, 289 (Tenn.
Ct. App. 2001).

       As noted above, Mr. Seagroves’ appeal of the decision of the Board of Probation and
Parole was denied on June 10, 2008. He filed this petition for writ of certiorari in the
Davidson County Circuit Court on July 13, 2009. Clearly, the sixty-day period for filing a
petition for a writ of certiorari had expired long before the filing of the instant petition.
Therefore, the interest of justice would not have been served by transferring the present
petition to the Davidson County Chancery Court.3 Following a transfer, the petition would
have been treated as if it was originally filed in Chancery Court on July 13, 2009. See Tenn.
Code Ann. § 16-1-116 (“Upon such a transfer, the action or appeal shall proceed as if it had
been originally filed in the court to which it is transferred on the date upon which it was
actually filed in the court from which it was transferred.”) As such, the petition would have
been time-barred and subject to dismissal in that court as well.

       Mr. Seagroves cites Paul v. State, 75 S.W.3d 926 (Tenn. Crim. App. 2001) on appeal.
In Paul, an inmate filing a pro se petition for post-conviction relief inadvertently addressed
the envelope containing his petition to the wrong city. Id. at 927. He addressed it to the
Robertson County Court Clerk in “Clarksville,” rather than to the correct locale of


        3
          We wish to emphasize that this is an appeal from the Davidson County Circuit Court’s decision
not to transfer the petition to the appropriate court. We are not at liberty to review the Bledsoe County
Circuit Court’s failure to transfer the petition.

                                                  -4-
“Springfield.” Id. at 928. The envelope was returned to him and he corrected the error, but
the time for filing had expired by one day. Id. Supreme Court Rule 28, section 2(G),
provides, regarding post-conviction relief, “If papers required or permitted to be filed by
these rules are prepared by or on behalf of a pro se petitioner incarcerated in a correctional
facility and are not received by the clerk of the court until after the time fixed for filing, filing
shall be timely if the papers were delivered to the appropriate individual at the correctional
facility within the time fixed for filing.” The Court of Criminal Appeals addressed Mr.
Paul’s situation as follows:

       On appeal, the sole determination before us is whether a pro se petition
       delivered to the proper prison authorities within the time period fixed for filing
       can be considered filed for purposes of Rule 28, § 2(G) of the Tennessee
       Supreme Court Rules where the mailing address is incorrect at the time of
       delivery to the prison officials. The Appellant argues that, despite his error,
       the petition was timely filed on April 14, 1999, when he first delivered it to the
       proper prison authorities.

              In the analogous case of Houston v. Lack, 487 U.S. 266, 270-271, 108
       S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988), the United States Supreme Court
       explained the purpose for allowing notices of pro se prisoners to be deemed
       “filed” when delivered to proper prison authorities for mailing:

               The situation of prisoners seeking to appeal is unique. Such
               prisoners cannot take the steps other litigants can take to
               monitor the processing of their notices of appeal ... Unlike other
               litigants, pro se prisoners cannot personally travel to the
               courthouse to see that the notice is stamped “filed” or to
               establish the date on which the court received the notice. Other
               litigants may choose to entrust their appeals to the vagaries of
               the mail and the clerk's process for stamping incoming papers,
               but only the pro se prisoner is forced to do so by his situation.
               And if other litigants do choose to use the mail, they can at least
               place the notice directly in the hands of the United States Postal
               Services (or a private express carrier); and they can follow its
               progress by calling the court to determine whether the notice has
               been received and stamped, knowing that if the mail goes awry
               they can personally deliver notice at the last moment or that their
               monitoring will provide them with evidence to demonstrate their
               excusable neglect or that the notice was not stamped on the date
               the court received it. Pro se prisoners cannot take any of these

                                                 -5-
               precautions, nor, by definition, do they have lawyers who can
               take these precautions for them. Worse, the pro se prisoner has
               no choice but to entrust the forwarding of his notice of appeal to
               prison authorities whom he cannot control or supervise and who
               may have every incentive to delay ... Unskilled in law, unaided
               by counsel, and unable to leave the prison, his control over the
               processing of his notice necessarily ceases as soon as he hands
               it over to the only public officials to whom he has access–the
               prison authorities.

       “In other words, the jailer is in effect the clerk of the [court].” Houston v.
       Lack, 487 U.S. 266 at 270, 108 S.Ct. 2379. In the present case, the prison
       officials at the Wayne County Boot Camp served as the “clerk of the court.”
       Although the Appellant mistakenly addressed the envelope containing his pro
       se petition to the wrong city, it is clear that his intention was to timely file the
       petition with the Robertson County Circuit Court Clerk. He accomplished this
       by delivering the petition to the prison authorities on April 14, 1999. Tenn.
       Sup. Ct. R. 28, § 2(G); Tenn. R. Crim. P. 49(c). We find no case law or other
       authority to support a different conclusion. As a pro se prisoner, the Appellant
       had no control over the situation, lacked freedom to pursue other means, and
       had no mechanism by which to confirm that the Robertson County Circuit
       Court Clerk received his petition. With such a restraint, we cannot say that the
       Appellant's error precludes him from seeking relief under the Act.
       Accordingly, we find that the petition was timely filed.

Paul, 75 S.W.3d at 928-29.

        Rule 5.06 of the Tennessee Rules of Civil Procedure similarly provides that “[i]f
papers required or permitted to be filed pursuant to the rules of civil procedure are prepared
by or on behalf of a pro se litigant incarcerated in a correctional facility and are not received
by the clerk of the court until after the time fixed for filing, filing shall be timely if the papers
were delivered to the appropriate individual at the correctional facility within the time fixed
for filing.” Mr. Seagroves argues that the reasoning of Paul should apply to his situation,
in that he inadvertently addressed his petition to the Davidson County Circuit Court rather
than the Davidson County Chancery Court. As stated above, however, even if Mr.
Seagroves’ present petition had been filed in the proper court on July 13, 2009, it would have
been time-barred. Furthermore, in Paul, the Court of Criminal Appeals stated:

       Although the Appellant mistakenly addressed the envelope containing his pro
       se petition to the wrong city, it is clear that his intention was to timely file the

                                                 -6-
       petition with the Robertson County Circuit Court Clerk. He accomplished this
       by delivering the petition to the prison authorities on April 14, 1999.

Id. at 929. Thus, the prisoner’s petition was addressed to the correct court, but simply
misstated its physical location. Here, however, Mr. Seagroves’ petition is clearly directed
to the Davidson County Circuit Court, and that is where it was ultimately filed. We decline
to extend the reasoning of Paul to redeem a petition that was directed to and filed in the
wrong court altogether.

                                    IV.   C ONCLUSION

       For the aforementioned reasons, we affirm the decision of the circuit court. Costs of
this appeal are taxed to the appellant, Alvin Seagroves, for which execution may issue if
necessary.

                                                  _________________________________
                                                  ALAN E. HIGHERS, P.J., W.S.




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