                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                         Assigned on Briefs September 03, 2014

                       ANDREW J. BRADEN, III v.
                 TENNESSEE BOARD OF PROBATION, ET AL.

                 Appeal from the Chancery Court for Davidson County
                     No. 13430II Carol L. McCoy, Chancellor




             No. M2013-02036-COA-R3-CV            - Filed November 4, 2014



J. STEVEN STAFFORD, P.J. W.S., DISSENTING:

        I write separately to emphasize two troubling procedural issues with the majority
Opinion. First, I am troubled by this Court’s analysis with regard to the timeliness of the
filing of Mr. Braden’s petition for a writ of certiorari. Second, I disagree that this case is
appropriate for summary disposition. For these reasons, I respectfully dissent.

                            Timeliness of Mr. Braden’s Petition

         As explained by the majority Opinion, in a writ of certiorari case, the trial court’s
subject matter jurisdiction is predicated on a timely filed petition for a writ of certiorari. See
Gore v. Tennessee Dept. of Correction, 132 S.W.3d 369, 379 (Tenn. Ct. App. 2003) (holding
that a timely filed petition for a writ of certiorari is “is mandatory and jurisdictional, and the
failure to file a petition within that period of time deprives the court of subject matter
jurisdiction”). The time for filing a writ of certiorari is defined by Tennessee Code
Annotated Section 27-9-102:

               Such party shall, within sixty (60) days from the entry of the
               order or judgment, file a petition of certiorari in the chancery
               court of any county in which any one (1) or more of the
               petitioners, or any one (1) or more of the material defendants
               reside, or have their principal office, stating briefly the issues
               involved in the cause, the substance of the order or judgment
               complained of, the respects in which the petitioner claims the
                 order or judgment is erroneous, and praying for an accordant
                 review.

Thus, in this case, Mr. Braden had sixty days from the date the Commissioner of the
Tennessee Department of Correction denied his appeal. As stated in the majority Opinion,
Mr. Braden’s appeal was denied on January 22, 2013. Thus, Mr. Braden was required to file
his petition for a writ of certiorari within sixty days after the denial.

       The majority Opinion is correct that Mr. Braden’s petition was required to be filed
no later than March 25, 2013, by virtue of the operation of Rule 6.01 of the Tennessee Rules
of Civil Procedure.1 Mr. Braden’s March 26, 2013 filing was, therefore, one day late.

       I also agree that, in appropriate circumstances, the time for filing may be extended for
pro se litigants who are incarcerated pursuant to the “prison mailbox rule.” According to
Rule 5.06 of the Tennessee Rules of Civil Procedure:

                 If 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. This provision shall also apply to service of
                 paper by such litigants pursuant to the rules of civil procedure.
                 “Correctional facility” shall include a prison, jail, county
                 workhouse or similar institution in which the pro se litigant is

       1
           Rule 6.01 of the Tennessee Rules of Civil Procedure provides:

                 In computing any period of time prescribed or allowed by these rules, by
                 order of court, or by any applicable statute, the date of the act, event or
                 default after which the designated period of time begins to run is not to be
                 included. The last day of the period so computed shall be included unless
                 it is a Saturday, a Sunday, or a legal holiday as defined in Tenn. Code Ann.
                 § 15-1-101, or, when the act to be done is the filing of a paper in court, a
                 day on which the office of the court clerk is closed or on which weather or
                 other conditions have made the office of the court clerk inaccessible, in
                 which event the period runs until the end of the next day which is not one
                 of the aforementioned days. When the period of time prescribed or allowed
                 is less than eleven days, intermediate Saturdays, Sundays and legal holidays
                 shall be excluded in the computation.


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               incarcerated. Should timeliness of filing or service become an
               issue, the burden is on the pro se litigant to establish
               compliance with this provision.

Tenn. R. Civ. P. 5.06 (emphasis added). Thus, the prison mailbox rule may apply to save an
untimely filing, but the burden is on the inmate to establish compliance with this rule.

       The majority Opinion goes on to assume that because of the circumstances of this
case, Mr. Braden’s petition must have been “delivered to the appropriate individual at the
correctional facility within the time fixed for filing.” Id. Further, the majority Opinion cites
Mr. Braden’s verification and notarization as evidence that the petition was delivered to the
appropriate person within the time for filing. However, Mr. Braden has never asserted nor
argued this fact, as it appears that this issue was not litigated in the trial court. Further, the
majority cites no law that states that the date of notarization and verification are also
evidence of timely filing.

        In a similar circumstance, Mr. Braden has previously been held to have failed to
timely file a petition for a writ of certiorari. See Braden v. Tennessee Dept. of Correction,
2011 WL 1816722 (Tenn. Ct. App. July 13, 2011) (Rule 10 Memorandum Opinion) (Braden
I).2 In Braden I, Mr. Braden’s petition for a writ of certiorari from a disciplinary conviction
was filed two days after the filing deadline. Id. at *1. According to the Court:

               The record demonstrates, however, that Prisoner signed his
               petition on December 28, 2009, the final day of the timely filing
               period. This leaves open the possibility that Prisoner complied
               with the filing deadline of Tennessee Code Annotated 27-9-102
               if he also delivered the petition to the appropriate individual at
               the Turney Center Industrial Complex on December 28. But the


       2
         Braden I is designated a Memorandum Opinion. According to Rule 10 of the Rules of the
Court of Appeals of Tennessee:

               This Court, with the concurrence of all judges participating in the case, may
               affirm, reverse or modify the actions of the trial court by memorandum
               opinion when a formal opinion would have no precedential value. When a
               case is decided by memorandum opinion it shall be designated
               “MEMORANDUM OPINION”, shall not be published, and shall not be
               cited or relied on for any reason in any unrelated case.

Because Mr. Braden is the Appellant in both cases, we conclude that these cases are not “unrelated.”
Accordingly, we may properly cite the decision in Braden I.

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              record is silent on this issue and Prisoner does not argue that he
              complied with the timely filing period. Petitioner therefore has
              not borne his burden to demonstrate compliance with the
              sixty-day filing period under Rule 5.06. We dismiss this appeal
              for lack of subject matter jurisdiction.

Id. at *2. Thus, even though there was a possibility that the petition was timely filed, the
Court held that Mr. Braden failed to meet his burden pursuant to Rule 5.06.

       Although the facts of this case weigh more heavily in Mr. Braden’s favor, I am
troubled by this Court’s decision to relieve Mr. Braden of his burden to show compliance
with Rule 5.06. Under these circumstances, I believe the appropriate course of action is to
remand to the trial court to hold an evidentiary hearing regarding the timeliness of Mr.
Braden’s petition to determine whether the trial court had subject matter jurisdiction to
consider Mr. Braden’s petition for a writ of certiorari.

                                    Summary Judgment

       With regard to the substantive issue presented in this case, I also must write separately
to express my concern as to the appropriateness of the trial court’s decision to grant summary
judgment in this case. The trial court found that the Tennessee Board of Probation and Parole
(“the Board”) is entitled to summary judgment on the basis that Mr. Braden was unable to
“show that he has been discriminated based on race.” The majority Opinion affirms the trial
court’s order citing the varying evidence submitted by each side.

        From my review of the record, it appears that Chairman Traughber submitted an
affidavit containing information regarding the parole grants and denials for 1,138 inmates.
Chairman Traughber’s affidavit tends to show that parole is granted more often to African
American inmates, thus calling into question Mr. Braden’s assertion that parole grants and
denials are racially-motivated. In contrast, Mr. Braden submitted an exhibit containing data
from five prisoners, including Mr. Braden, which he asserts shows that parole is granted in
a racially-motivated fashion for those individuals convicted of killing a police officer.

       With regard to this competing evidence, the majority Opinion appears to discount Mr.
Braden’s evidence on the basis that it is significantly less convincing than the evidence
submitted by the Board, stating: “Although by Exhibit 5 to his petition . . . Mr. Braden
attempts to provide statistical data to indicate that the parole Board grants parole more often
to Caucasian inmates, Mr. Braden’s statistics are compiled with data from only five prisoners
including himself.” The majority Opinion further states that Mr. Braden’s “data [is]
[in]sufficient as it is a sampling of five cases including his own.”

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      It is my belief that this weighing of the evidence is inappropriate at the summary
judgment stage of litigation. As this Court explained in Blackburn & McCune, PLLC v.
Pre-Paid Legal Services, Inc., 398 S.W.3d 630 (Tenn. Ct. App. 2010):

                At this stage, the non-movant’s evidence is taken as true, and the
                trial judge is not to weigh the evidence. See McCarley v. West
                Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998).
                “Summary judgment procedure is not a substitute for trial. It is
                only when there is no disputed issue of material fact that a
                summary judgment should be granted. If such fact issue is
                present, the matter must not be resolved by a battle of affidavits,
                but must be resolved by a trial on the merits.” Stone v. Hinds,
                541 S.W.2d 598, 599 (Tenn. Ct. App. 1976).

Blackburn, 398 S.W.3d at 643.3 Here, it appears that we have exactly the situation warned
against in Blackburn, a battle of the affidavits, where summary judgment has been granted
on the basis that the evidence of one party is substantially more “weighty” than the evidence
of the opposing party.

       Despite the admonition in Blackburn against weighing the evidence at the summary
judgment stage of litigation, the majority Opinion holds that summary judgment was
appropriate based on its reliance on Henderson v. Bredesen, No. 3:04-0043, 2005 WL
2230033 (M.D. Tenn. Aug. 9, 2005), an unpublished Report and Recommendation from a
federal Magistrate Judge, in which the court considers the competing evidence submitted by
the parties, ultimately ruling in favor of the State based upon the “insufficiency of the
plaintiff’s evidence.” Id. at * 3. Federal caselaw, however, is not binding on this Court,
while our own interpretation of our summary judgment standard is. See generally Harris v.
Chern, 33 S.W.3d 741, 745 n.2 (Tenn. 2000). Accordingly, regardless of the holding in
Henderson, I would hold that this State’s caselaw mandates that summary judgment was
inappropriate.

        Even assuming, arguendo, that the majority of this Court’s consideration of the

        3
          Blackburn was decided under the summary judgment standard outlined in Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1 (Tenn. 2008). The Hannan standard was recently replaced by the enactment
of Tennessee Code Annotated Section 20-16-101, which is intended to “return the summary judgment
burden-shifting analytical framework to that which existed prior to Hannan.” Coleman v. S. Tenn. Oil Inc.,
No. M2011-01329-COA-R3-CV, 2012 WL 2628617, at *5 n.3 (Tenn. Ct. App. July 5, 2012). Because this
case was filed after July 1, 2011, the new standard applies. However, nothing in Tennessee Code Annotated
Section 20-16-101, or in any subsequent caselaw, indicates that the statute was intended to alter the long-
standing rule that a trial court may not weigh the evidence in deciding a summary judgment motion.

                                                   -5-
evidence is appropriate, I believe that the majority has failed to review the evidence in the
light most favorable to Mr. Braden. See Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003)
(“In reviewing a motion for summary judgment, the Court must examine the evidence and
all reasonable inferences from the evidence in a light most favorable to the non-moving
party.”). Instead, the majority Opinion dismisses the evidence submitted by Mr. Braden
because Mr. Braden failed to indicate where he obtained the information, noting that “there
is nothing in the record to indicate exactly what public records he used to compile his
statistics.” Respectfully, while Chairman Traughber’s affidavit indicates that it contains a
chart for all “offenders convicted of Murder 1 and First Degree Murder” between 2002
through 2012, the affidavit also contains “nothing . . . to indicate exactly” where Chairman
Traughber obtained this information, or any other objective indication that this information
is an accurate representation of the actual parole grants and denials. I recognize that
Chairman Traughber attested to the truth of these figures and there is nothing in the record
to indicate that he was disingenuous. However, if the failure to include documentation to
“indicate exactly” where the information was obtained is fatal to Mr. Braden’s claim, this
rule should apply equally to Chairman Traughber.

        Additionally, Mr. Braden’s evidence purports to show data relating only to those
individuals who were convicted of killing a police officer. According to Mr. Braden, this
admittedly scant evidence is merely preliminary while Mr. Braden awaits the return of his
public information request. In contrast, the data submitted by Chairman Traughber is not so
limited—it includes data on the parole grants and denials for all prisoners convicted of
Murder 1 and First Degree Murder, rather than merely those that were convicted of killing
a police officer. Taking all reasonable inferences in Mr. Braden’s favor, Chairman
Traughber’s evidence, which focuses on all inmates convicted of these crimes, rather than
only inmates convicted of Murder 1 and First Degree Murder where the victim was a police
officer, neither affirmatively negates Mr. Braden’s claim that the denial of his parole was
racially-motivated, nor demonstrates that Mr. Braden is unable to prove his claim, as Mr.
Braden’s assertion is limited solely to parole decisions involving inmates convicted of
Murder 1 and First Degree Murder for killing police officers. See Tenn. Code Ann. § 20-16-
101 (providing that summary judgment is appropriate if the moving party who does not bear
the burden at trial: “(1) Submits affirmative evidence that negates an essential element of the
nonmoving party’s claim; or (2) Demonstrates to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.”).

       Under these circumstances, it appears that summary judgment in favor of the Board
was premature. My decision herein does not mean that Mr. Braden should prevail in his
claim. Instead, it means only that summary judgment was inappropriate on this issue, at this
juncture in the litigation. Indeed, as indicated in the majority Opinion, even where there is
a constitutional challenge to the Board’s decision, the decision may, nevertheless, be upheld,

                                              -6-
where “the defendants have legitimate, nondiscriminatory reasons for their actions.” See
Nedea v. Voinovich, 994 F. Supp. 910, 916–17 (N.D. Ohio 1998). Here, the majority states
that in addition to the seriousness of the crime criterion at issue in this appeal, the Board had
other legitimate, nondiscriminatory reasons for denying Mr. Braden’s parole, including Mr.
Braden’s two prior disciplinary actions while in prison. In my view, the appropriate course
of action would be to vacate the judgment of the trial court and remand for further
proceedings, including, but not limited to, consideration of whether the Board had legitimate,
nondiscriminatory reasons for denying Mr. Braden’s parole.

       For the foregoing reasons, I must respectfully dissent from the majority Opinion.




                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE




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