      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE



CHARLES MONTAGUE,              )
                               )
      Plaintiff/Appellant,     )
                               )   Davidson Chancery
                               )   No. 95-569-III
VS.                            )
                               )   Appeal No.
                               )   01A01-9602-CH-00065
TENNESSEE DEPARTMENT OF        )
CORRECTION, ET AL.,            )
                               )     FILED
      Defendants/Appellees.    )
                                      October 17, 1997

                                    Cecil W. Crowson
                                   Appellate Court Clerk

  APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
                AT NASHVILLE, TENNESSEE

        THE HONORABLE ROBERT S. BRANDT, CHANCELLOR



For the Plaintiff/Appellant:       For the Defendants/Appellees:

Charles Montague, Pro Se           Charles W. Burson
                                   Attorney General and Reporter

                                   Jeffrey L. Hill
                                   Assistant Attorney General
                                   Civil Rights and Claims Division




                  AFFIRMED AND REMANDED



                                   WILLIAM C. KOCH, JR., JUDGE
                          MEMORANDUM OPINION

      This appeal involves a prisoner’s efforts to obtain judicial review of a
disciplinary action taken by the Department of Correction. The prisoner filed a
petition for declaratory judgment in the Chancery Court for Davidson County seeking
review of discipline he received for engaging in sexual misconduct with a visitor.
The trial court granted the Department’s motion for summary judgment and
dismissed the petition. The prisoner asserts on this appeal that the trial court should
not have dismissed his petition. We have determined that the petition was not timely
filed and, therefore, affirm the trial court in accordance with Tenn. Ct. App. R. 10(b).1


                                                  I.


      Charles Montague is incarcerated in the Northeast Correctional Center where
he is serving a life sentence for first degree murder2 and a six-year sentence for
possession of controlled substances and drug paraphernalia.3 On October 23, 1994,
Mr. Montague received a disciplinary write up after a guard observed his girlfriend
masturbating him during an approved visit. Following a hearing on October 31,
1994, the prison disciplinary board found Mr. Montague guilty of sexual misconduct
and determined that he should lose his visitation privileges for sixty days and that he
should lose his prison job. The Commissioner of Correction approved these
sanctions on November 10, 1994.


      On February 21, 1995, Mr. Montague filed a petition for declaratory judgment
under Tenn. Code Ann. § 4-5-225 (Supp. 1997) (formerly Tenn. Code Ann. § 4-5-


      1
          Tenn. Ct. App. R. 10(b) provides:

                         The 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 a
                subsequent unrelated case.
      2
       See State v. Montague, App. No. 03C01-9306-CR-00192, 1994 WL 652186 (Tenn. Crim.
App. Nov. 21, 1994), perm. app. denied (Tenn. April 10, 1995).
      3
       See State v. Montague, App. No. 03C01-9406-CR-00233, 1995 WL 509426 (Tenn. Crim.
App. Aug. 29, 1995), perm. app. denied concurring in results only (Tenn. Dec. 28, 1995).

                                                 -2-
224) seeking judicial review of the disciplinary board’s action. The Department of
Correction filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss or in the alternative for
a summary judgment accompanied by evidentiary materials relating to Mr.
Montague’s disciplinary hearing. On August 7, 1995, Mr. Montague filed an
amended complaint adding a claim seeking relief through a common-law writ of
certiorari. The trial court dismissed the original complaint on August 30, 1995, on
the ground that declaratory judgment proceedings under Tenn. Code Ann. § 4-5-224
could not be used to review prison disciplinary proceedings. In response to Mr.
Montague’s motion to reconsider, the trial court also held that Mr. Montague had
failed to state a claim for which relief through a common-law writ of habeas corpus
could be granted.


                                          II.


      Prison disciplinary proceedings may only be reviewed through a common-law
writ of certiorari filed in Davidson County. See Ali v. Hardison, App. No. 01A01-
9601-CH-00039, 1996 WL 383292, at *1 (Tenn. Ct. App. July 10, 1996); Snodgrass
v. Noles, App. No. 02C01-9403-CC-00037, 1994 WL 328762, at *1 (Tenn. Crim.
App. July 8, 1994). Petitions for writs of certiorari must be filed within sixty days
after the entry of the order sought to be reviewed. See Tenn. Code Ann. § 27-9-102
(1980).


      Mr. Montague did not file a complaint seeking relief pursuant to a common-
law writ of certiorari until August 7, 1995 - two hundred and seventy days after the
Commissioner affirmed Mr. Montague’s punishment. Even if his certiorari claim
could relate back to the filing of the complaint for declaratory judgment, it was still
filed one hundred and three days after the Commissioner’s decision. Since Mr.
Montague filed his petition forty-three days after the expiration of the period
provided in Tenn. Code Ann. § 27-9-102, the trial court correctly determined that the
petition failed to state a claim upon which relief can be granted.


                                          III.


      We affirm the order dismissing Mr. Montague’s petition failing to state a claim
upon which relief can be granted and remand the case to the trial court for what

                                          -3-
further proceedings may be required. We also tax the costs of this appeal to Charles
D. Montague for which execution, if necessary, may issue.




                                              ____________________________
                                              WILLIAM C. KOCH, JR., JUDGE


CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION


__________________________________
SAMUEL L. LEWIS, JUDGE




                                        -4-
