            IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE



                                               FILED
                                                 August 5, 1998
JIMMY KEY,                    )
                              )                Cecil W. Crowson
      Plaintiff/Appellant,    )               Appellate Court Clerk
                              )   Davidson Chancery
VS.                           )   No. 95-3896-I
                              )
TENNESSEE BOARD OF            )   Appeal No.
PAROLES,                          )   01A01-9610-CH-00480
                              )
      Defendant/Appellee.     )




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

      THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



For Plaintiff/Appellant:                    For Defendant/Appellee:

Jimmy Key                                    John Knox Walkup
Pro Se                                 Attorney General and Reporter

                                       Brenda Rhoton Little
                                       Parker, Allen & Crofford
                                       Nashville, Tennessee




                      AFFIRMED AND REMANDED




                                  WILLIAM C. KOCH, JR., JUDGE
                            MEMORANDUM OPINION

       This appeal involves a dispute between the Board of Paroles and a prisoner convicted of
being an habitual criminal over the inmate’s right to custodial parole and the calculation of his
sentence credits. The Chancery Court for Davidson County granted the Board’s motion to dismiss,
and the prisoner has appealed. We affirm the dismissal of the prisoner’s suit in accordance with
Tenn. Ct. App. R. 10(b).1


       In 1976 Jimmy Lee Key was convicted of burglary and of being an habitual criminal and was
sentenced to life imprisonment. Three years later, while confined at the Morgan County Regional
Correctional Facility, Mr. Key murdered a fellow inmate. In a plea agreement, he agreed to plead
guilty to second degree murder in return for a thirty-five year sentence to be served consecutively
with his life sentence. In April 1991, the Board of Paroles granted Mr. Key custodial parole from
his life sentence but rescinded the parole one year later in accordance with an Executive Order by
Governor McWherter excluding certain violent offenders from eligibility for early release
consideration. The Board paroled Mr. Key on his life sentence in the usual way in December 1994.


       As soon as he was paroled the second time, Mr. Key filed a declaratory judgment action in
the Chancery Court for Davidson County challenging the Board’s
1992 decision to rescind his original parole and the calculation of his sentence reduction credits. The
trial court dismissed Mr. Key’s petition on the ground that the Board’s actions could only be
reviewed using a common-law writ of certiorari.


       The power to pardon or parole rests in the Executive Branch. See Tenn. Const. art. III, § 6.
Accordingly, the Board is wielding executive power when it makes parole decisions, and these
decisions, if made according to law, are not reviewable by the courts. See Tenn. Code Ann. § 40-28-
115(c) (1997); Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995). Prisoners
seeking to challenge the fundamental legality of a parole decision may do so using a common-law
writ of certiorari, see Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App.
1994), but may not obtain judicial review by declaratory judgment. See Watson v. Tennessee Dep’t
of Correction, No. 01A01-9707-CH-00360, 1998 WL 4707, at *2 (Tenn. Ct. App. Jan. 9, 1998),
perm. app. denied (Tenn. May 26, 1998). Accordingly, the portion of Mr. Key’s petition challenging
the recision of his first parole fails to state a claim upon which relief can be granted.



       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-
       Likewise, the portion of Mr. Key’s petition challenging the calculation of his sentence credits
fails to state a claim. The Tennessee Department of Correction, not the Board, is responsible for
administering the prisoner sentence reduction program. Accordingly, Mr. Key has sued the wrong
agency and is entitled to no relief from the Board.


       We affirm the trial court’s dismissal of Mr. Key’s petition and remand the case to the trial
court for whatever further proceedings may be required. We also tax the costs of this appeal to
Jimmy Key.




                                                      ______________________________
                                                      WILLIAM C. KOCH, JR., JUDGE


CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
SAMUEL L. LEWIS, JUDGE




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