JOHN WAYNE SLATE, SR.,                )
                                      )    Davidson Chancery
      Plaintiff/Appellant,            )    No. 96-1921-I
                                      )
VS.                                   )
                                      )
STATE OF TENNESSEE BOARD OF           )
PAROLES, ET AL.,                      )
                                      )    Appeal No.
      Defendant/Appellee.             )    01-A-01-9704-CH-00155


                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE
                                                         FILED
                                                          October 1, 1997
       APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE   Cecil W. Crowson
                                              Appellate Court Clerk

              HONORABLE IRVIN H. KILCREASE, CHANCELLOR




JOHN KNOX WALKUP
Attorney General and Reporter


TERESA S. THOMAS #12788
Counsel for the State
404 James Robertson Parkway
Suite 2000
Nashville, TN 37243
ATTORNEYS FOR DEFENDANTS/APPELLEES


John Wayne Slate #123012
N.E.C.C.
P.O. Box 5000
Mountain City, TN 37683-5000
ATTORNEY FOR PLAINTIFF/APPELLANT


                             AFFIRMED AND REMANDED.



                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION


CONCURS:

BEN H. CANTRELL, JUDGE
WALTER W. BUSSART, JUDGE
JOHN WAYNE SLATE, SR.,                        )
                                              )       Davidson Chancery
       Plaintiff/Appellant,                   )       No. 96-1921-I
                                              )
VS.                                           )
                                              )
STATE OF TENNESSEE BOARD OF                   )
PAROLES, ET AL.,                              )
                                              )       Appeal No.
       Defendant/Appellee.                    )       01-A-01-9704-CH-00155




                                     OPINION

       The captioned plaintiff, a prisoner in custody of the Department of Correction awaiting

execution has appealed from a decision of the Board of Paroles denying his request for parole.

His death sentence has been stayed by a federal court which ordered a retrial of the issue of

punishment. This retrial has not yet taken place.



       The present judicial proceeding was begun by a document entitled:

                       Petition for Writ of Certiorari to Review the Decision
               of the State of Tennessee Parole Board’s Decision - Under 27-
               9-101--27-9-102--27-9-114-------- and Production of Records
               Under Public Records Act

                       T.C.A. 10-7-503---T.C.A. 10-7-505


       The nine-page document is a melange of disordered and disconnected statements which

render orderly analysis difficult.



       On behalf of the multiple respondents, the State Attorney General and Reporter filed a

motion to dismiss the petition for failure to state a claim for which relief can be granted.



       The Trial Judge ordered:

                       The petitioner, an inmate in the lawful custody of the
               Department of Correction, has filed a petition for writ of
               certiorari seeking review of the decision by the Board of
               Paroles to deny him parole. The petitioner asserts that the
               Board violated his constitutional rights and acted arbitrarily
               capriciously, and deliberately in denying him parole.

                                             -2-
                       The respondents have filed a motion to dismiss the
               complaint pursuant to Rule 12.02 of the Tennessee Rules of
               Civil Procedure on the grounds that the petition was not filed
               within the jurisdictional time limit set forth in Tenn. Code
               Ann. § 27-9-102 and that the petition fails to state a claim
               upon which relief can be granted.

                        Tenn. Code Ann. § 27-9-102 provides that a petition
                for a writ of certiorari must be filed within 60 days from the
                entry of the order or judgment from which appeal is taken.
                Failure to file within this time limit results in the Board’s
                decision becoming final, which deprives this Court of
                jurisdiction. Wheeler v. City of Memphis, 685 S.W.2d 4,6
                (Tenn. App. 1984).

                        On April 2, 1996, the petitioner appeared before a
                hearing officer for parole release consideration. The
                petitioner was denied parole on that date based upon the
                seriousness of the petitioner’s offense and his likelihood to re-
                offend. The time within which the petition for writ of
                certiorari could have been filed expired on June 2, 1996. This
                petition was not filed until June 24, 1996. Thus, this Court is
                without jurisdiction to review the petition. For the foregoing
                reasons, the respondent’s motion to dismiss is granted. The
                Court finds it unnecessary to address other issues in this
                matter. Petitioner is assessed state litigation taxes. All other
                costs are waived.

                        IT IS SO ORDERED.


        T.C.A. § 27-9-102 requires that petitions for judicial review of administrative orders be

filed within 60 days after the rendition of a final administrative decision. In the present case, the

application for review was filed in the Trial Court on June 24, 1996.



        The petition for judicial review does not state with any degree of certainty the date of the

final action of the Parole Board which is to be reviewed. The following are typical excerpts from

the petition for judicial review:

                        On April 2, 1996 the Board of Paroles Hearing Officer
                conducted a parole release hearing on you petitioner,
                                             ----
                        3)      That the Parole Board’s Hearing Officer
                accepted the facts of the offence (sic) as “truth”.
                                             ----
                        On the 6th day of May 1996. Petitioner recieved (sic)
                disposition of his appeal wherin (sic) the appeal was
                summarily denied. Reasons of denial was as followes (sic);
                seriousness of the offence (sic) “high risk” H-R -on actions
                following initial offence (sic) “attempted escape” expired”


                                              -3-
                       That the appellate panel of the Board of Paroles
               summarily denied appeal and did not review said appeal
               based on the facts set out by petitioner in his request for
               appeal. And thusely (sic) treating petitioner’s appeal
               arbitrarily and capriciously.

               Attached to this petition are the following exhibits;

               A.      “Request for appeal hearing filed by petitioner dated
                       May 3, 1996 and May 6th 1996.

               B.      “Appeal disposition dated ---- May 2, 1996.

               C.      “Letter written to T.P.O. and TN. Parole Board dated
                       4/1/96.

               D.      Newspaper press releases dated -- 8/28/95.

               E.      Second request for appeal “addition” filed 5/7/96.

               F.      Summons and motion - 90-day appeal granted on May
                       23, 1996 “then denied again on June 12th 1996.


       It is seen that the petition mentions at least one action of the administrative agency

which occurred on May 23, 1996, within 60 days prior to the filing of the petition for judicial

review on June 24, 1996. We find the petition was timely filed; however, the conflicting and

confusing allegations of the complaint do not state grounds for finding that the Board acted

arbitrarily or capriciously. It thus does not state a claim for which the relief of certiorari

should be granted.



       The complaint also attempts to state a claim for relief in respect to discovery in a

separate action in the following verbiage:

               Relief requested statement for which relief can be granted.
               Wherefore, premises considered, petitioner prays; court issue
               an order for all state agencys (sic) in this case bring forth
               records’ (for review).

               1.      That a writ of certiorari for this first application, be
               issued from Davison (sic) County Chancery Court to the
               Tennessee Board of Paroles, directing said Board and it’s
               officials to certify to this court the entire records of the
               proceedings of this case, including but not limited to, the
               hearing summary reports of the notice of board action parole
               release hearing conducted on April 2, 1996. An (sic)
               statement by the I.P.O. the audio cassette tapes made of the



                                             -4-
              hearing stated above, the reports of the first level appeal
              submitted to the Board of Paroles by petitioner, and any and
              all other pertinent information including statements by family
              members stating facts by trial transcripts and others that
              comprises the official record of this matter. Facts of the
              offence (sic) report from Sevier County Prosecutor Al
              Smutzer Jr.) (sic). (Records from the D.O.C.).
                                            ----
              5.      That the Court return this matter to the initial panel of
              the Board of Paroles for a full “and fair” hearing with
              petitioner supplyed (sic) an (sic) copy of the facts of offence
              (sic) and that petitioner be afforded a chance to present trial
              transcripts as stated by family members to be true “which are
              in “fact” false by record and/or in the alternative grant
              petitioner immediate parole.
                                            ----
              Petitioner states here for the record that he was denied parole
              on April 2, 1996. --Petitioner is still awaiting notice of his
              appeal it is May 29th 1996-and plantiff (sic) still has not
              recieved (sic) his requested tape of the hearing, nor an answer
              to his appeal.


       Attached to the petition for judicial review are unauthenticated copies of documents

including the following:

                      “Petition for a Declaratory Order to the
                      Department of Corrections” “Legal Department”

containing the following:

              Petitioner submitts (sic) that this department for the
              Department of Corrections should serve petitioner and the
              Chancery Court at Davison (sic) County Tennessee with
              copies of the records, files, all including but not limited to all
              files from the Sevier County prosecutor, and Sevier County
              courts. (Parole Board) Dept. Corrections.

              2.      That petitioner wishes to give each and every
              department of the State of Tennessee, who is in violation of
              petitioner’s constitutional rights a chance to “:pass”“ (sic) on
              these issues in the following;

              A.      The Department of Correction for the State of
                      Tennessee. (All Dept.)

              B.      The Tennessee Board of Paroles (All files)

               C.     The files of the Sevier County prosecutor.

               3.      Petitioner submitts (sic) that the undisclosed “facts of
               the offence” (sic) are “is completely “false” and untrue by the
               “records of proof in this case.” Now that petitioner has
               alleged this that also makes all records of the department of
               corrections false.

                                             -5-
               Wherefore; the petitioner respectfully requests the D.O.C.
               supply all copies to petitioner and court without applying no
               statute.


       On August 19, 1996, petitioner filed in the Trial Court a “Motion to Compel” seeking

to compel answers to petitioner’s request for discovery of evidence to be presented by the

prosecution at the re-sentencing hearing which has not occurred.



       On August 29, 1996, petitioner filed with the Trial Court unauthenticated copies of

documents including the following:

               An unsigned “E-Mail” addressed to petitioner and stating:

               Wanda
               The above inmate was declined for parole in April. He
               subsequently filed an appeal on May 23, 1996. He received
               (sic) a letter stating he had an additional 90 days to provide
               any further evidence he wished on June 12, 1996. He
               received a letter stating he did not meet criteria for appeal.
               Can you please check into this and advise which of these
               letters is correct. I have personally seen both and I believe
               they are both legit. Please advise as soon as possible.
               Thanks Kim


       The failure to state a claim for which relief can be granted is determined from an

examination of the complaint alone. Wolcotts Financial Services, Inc. v. McReynolds, Tenn.

App. 1990, 807 S.W.2d 708.



       The alleged right of the petitioner to discover in this proceeding evidence which may be

relevant to an entirely different proceeding (the re-sentencing trial), is not recognized by this

Court. The Trial Court correctly dismissed that part of the complaint which asserted such a right.




                                               -6-
       The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

plaintiff. The cause is remanded to the Trial Court for necessary further proceedings.



                          AFFIRMED AND REMANDED



                                              ___________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION




CONCURS:



_______________________________
BEN H. CANTRELL, JUDGE


_______________________________
WALTER W. BUSSART, JUDGE




                                              -7-
