                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs, April 19, 2011


        MARSHALL H. MURDOCK, v. STATE OF TENNESSEE, et al.

                Appeal from the Chancery Court for Davidson County
                 No. 09-1745-II   Hon. Carol L. McCoy, Chancellor


                  No. M2010-01471-COA-R3-CV - Filed May 13, 2011




Petitioner brought this action styled: "Petition for Declaratory Judgment", naming the
Tennessee Department of Corrections and the Tennessee Board of Paroles as defendants.
The Trial Judge, responding to a Motion to Dismiss, dismissed the Department of
Corrections on the grounds that it was not a proper party to challenge a parole board decision.
The Trial Court then treated the Petition as a common law writ of certiorari, and held that the
writ was not timely filed. Petitioner has appealed to this Court and we affirm the Judgment
of the Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Marshall H. Murdock, Tiptonville, Tennessee, pro se.

Mark A. Hudson, Nashville, Tennessee, for the appellee, Tennessee Board of Paroles and
Tennessee Board of Corrections.


                                         OPINION


       Petitioner, Marshall Murdock, a prisoner acting pro se, filed a Petition for Declaratory
Judgment in the Chancery Court naming the Tennessee Department of Corrections and the
Tennessee Board of Paroles on September 4, 2009. The Complaint alleged that the due
process utilized when he was reviewed for the possibility of parole was not conducted
properly. Murdock states that neither he nor his supporters were present at the parole
hearing, and thus could not provide information regarding his “state of mind” at the time of
the offense. He further argued that because he was in prison in Mississippi at the time of the
parole hearing, he was treated differently than an in-state prisoner and that this violated his
right to due process.

        The record shows that Murdock was given notice of the non-appearance hearing that
was to take place, and that notice was sent on August 31, 2006, with the noticed hearing to
be held on October 27, 2006. Murdock was informed that if he wished to present evidence
on his behalf, he should submit his documentation to the Board no later than five days before
the hearing. On November 8, 2006, Murdock was sent notice that parole was denied, and
that the next review date would be 2012. An appeal resulted, which was denied on February
5, 2007.

        The Trial Court entered an Order directing Murdock to file his special inmate affidavit
and a copy of his trust account statement before the case could proceed. Respondents filed
a Motion to Dismiss, stating that the Court had no subject matter jurisdiction, and that the
petition failed to state a claim upon which relief could be granted. Murdock then submitted
a certification regarding his trust fund balance, and later submitted the inmate affidavit. The
Trial Court then allowed the case to proceed.

       The Trial Court entered an Order regarding the Motion to Dismiss, and held that
TDOC should be dismissed because they were not a proper party in a challenge to a parole
board decision. The Court explained that parole decisions were discretionary and were the
prerogative of the Tennessee Board of Paroles, citing Tenn. Code Ann. §40-28-116(a)(1) and
State ex rel. Ivey v. Meadows, 393 S.W.2d 744 (1965). The Court further stated that the
provisions of the APA did not apply to decisions of the Tennessee Board of Paroles, pursuant
to Tenn. Code Ann. §4-5-106(c), such that the proper procedural vehicle for prisoners to seek
review of decisions of the parole board was through a common law writ of certiorari, citing
Rhoden v. TDOC, 984 S.W.2d 955 (Tenn. Ct. App. 1988).

        The Court noted that it was supposed to give effect to the “substance, rather than the
form or terminology of a pro se litigant’s papers”, and thus allowed Murdock’s petition to
be treated as one seeking common law writ of certiorari. The Court then held, however, that
petitioner had waiting too long to file his petition, as the decision petitioner complained of
took place in 2007, and he did not file his petition until 2009. The Court held that a petition
for common law writ of certiorari had to be filed within sixty days from the entry of

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judgment, and that this sixty day filing rule was mandatory and jurisdictional. Thus, the
Court concluded that it lacked subject matter jurisdiction.

        Murdock then filed a Notice of Appeal, raising the following issues:

        I.       Whether the Trial Court properly dismissed the petition, or should have tolled
                 the statute of limitations?

        II.      Whether the board of parole should have used two way video conferencing
                 when conducting the parole hearing?

       As the Trial Court determined, the proper procedure for review of any action by the
parole board is via a petition for common law writ of certiorari, as the provisions of the
Uniform Administrative Procedures Act do not apply. See Turner v. Tennessee Bd. of
Paroles, 993 S.W.2d 78 (Tenn. Ct. App. 1999); Tenn. Code Ann. §4-5-106. Pursuant to
Tenn. Code Ann. §27-9-102, such a petition must be filed within sixty days of the
administrative action complained of or the trial court has no jurisdiction over the dispute.
See Turner 1 .

       In this case, the parole hearing occurred in 2006, and was denied in early 2007. This
Petition was untimely, and while Murdock argues the Trial Court should have tolled the 60
day time limit, he presented no basis to support this argument.

       As the Trial Court found, the 60 day filing rule is mandatory and jurisdictional. See
Turner. The Trial Court properly dismissed Murdock’s Petition, and we affirm the Judgment
of the Trial Court with the cost of the appeal assessed to Marshall H. Murdock.




                                                           _________________________________
                                                           HERSCHEL PICKENS FRANKS, P.J.




        1
          While the Trial Court treated the petition as a common law writ of certiorari, it was not appropriate
to be treated as such because it was not sworn to by the petitioner, which the cases and the now Supreme
Court Rule have mandated that all common law petitions for writ of certiorari must be sworn to by the
applicant.

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