                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                      ASSIGNED ON BRIEFS AUGUST 4, 2006

              LEONARD FRAZIER v. DONAL CAMPBELL, ET AL.

                 Direct Appeal from the Chancery Court for Shelby County
                       No. 02-0393-2   Arnold B. Goldin, Chancellor



                      No. W2006-00031-COA-R3-CV - August 31, 2006


This appeal involves a petition for writ of certiorari filed by a state prisoner. After drugs were
discovered in the inmate’s incoming mail, he was sentenced to punitive segregation. He sought
review of his conviction in the Shelby County Chancery Court, which later dismissed his case
without prejudice for lack of prosecution. The inmate filed a notice of appeal which we have
determined was untimely and therefore a nullity. As a result, we must dismiss this appeal without
considering the issues presented by the Petitioner.


                 Tenn. R. App. P. 3; Appeal as of Right; Appeal Dismissed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Leonard Frazier, pro se, Tiptonville, TN

Paul G. Summers, Attorney General & Reporter; Arthur Crownover, II, Senior Counsel, Nashville,
TN, for Appellees

                                           OPINION

                             I. FACTS & PROCEDURAL HISTORY

        Leonard Frazier (“Frazier” or “Petitioner”) is an inmate in the custody of the Tennessee
Department of Correction at the West Tennessee State Penitentiary (“WTSP”) in Henning,
Tennessee. On June 26, 2001, Frazier received a disciplinary infraction for drug possession after
forty-nine morphine pills were found in a package which Frazier had signed to receive. The
disciplinary board conducted a hearing and convicted Frazier of the charged offense. As a result,
he was sentenced to punitive segregation. The conviction was subsequently upheld on first- and
second-level appeals, by the Prison Warden and Commissioner of the Department of Correction,
respectively. Frazier then filed a Petition for Writ of Certiorari on February 28, 2002, asking the
Shelby County Chancery Court to review the decision.

        The defendants, the Tennessee Department of Correction and Donal Campbell, former
Commissioner, filed a motion to dismiss on May 9, 2002. They alleged that the Shelby County
Court lacked subject matter jurisdiction over a petition for writ of certiorari filed against the
Department of Correction, a state agency. In addition, they claimed that Frazier’s petition was barred
by the applicable statute of limitations. Frazier filed a response to the defendants’ motion on May
10, 2002. On July 12, 2002, he filed a motion for entry of default judgment, stating that the
defendants had failed to respond to his complaint within thirty days. It appears that no further action
was taken in the case until September 9, 2005, when a hearing was held upon motion of the Clerk
and Master to dismiss for lack of prosecution.1 An order was entered dismissing the case without
prejudice on that same day. Frazier filed a notice of appeal on October 31, 2005. He had signed his
notice of appeal on October 12, 2005.

                                            II. ISSUES PRESENTED

         On appeal, Frazier presented the following issues, as we perceive them, for review:
         1.    Whether the trial court improperly failed to transfer his petition to the appropriate
               jurisdiction; and
         2.    Whether application of the statute of limitations for seeking a writ of certiorari would
               deny him a reasonable opportunity to assert a claim in a meaningful time and manner.

However, we do not reach consideration of the issues presented because our review of the record in
this case reveals that his notice of appeal was untimely.

                                               III.    DISCUSSION

         Tennessee Rule of Appellate Procedure 3(a) states that “[i]n civil actions every final
judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of
Appeals is appealable as of right.” However, appeals as of right are “taken by timely filing a notice
of appeal with the clerk of the trial court.” Tenn. R. App. P. 3(e). “[T]he notice of appeal required
by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed from . . . .” Tenn. R. App. P. 4(a). This thirty-day time limit for
filing a notice of appeal is mandatory and jurisdictional in civil cases. Albert v. Frye, 145 S.W.3d
526, 528 (Tenn. 2004) (citing Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn. 2003)).




         1
             Rule 22 of the Shelby County Local Rules of Practice provides for dismissal for lack of prosecution
“whenever a cause has remained on the Rule Docket for twelve (12) months or more without steps being taken by the
Plaintiff to dispose of the cause.” The Clerk and Master is entitled to request the court for a dismissal of the cause
without prejudice.


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        Filing a notice of appeal is an essential step necessary to a valid appeal as of right, which is
not waivable. Tenn. R. App. P. 2 advisory commission comment. An appellate court is not
authorized to extend the time limit for filing a notice of appeal. Briley v. Chapman, 182 S.W.3d
884, 889 (Tenn. Ct. App. 2005) (citing Arfken & Assoc. v. Simpson Bridge Co., 85 S.W.3d 789, 791
(Tenn. Ct. App. 2002); Tenn. R. Civ. P. 2; Tenn. R. Civ. P. 21(b)). In civil cases, a party’s failure
to timely file a notice of appeal deprives the appellate court of jurisdiction to hear the appeal. Briley,
182 S.W.3d at 889 (citing McGaugh v. Galbreath, 996 S.W.2d 186, 189 (Tenn. Ct. App. 1998);
American Steinwinter Investor Group v. American Steinwinter, Inc., 964 S.W.2d 569, 571 (Tenn.
Ct. App. 1997). As a result, the appellate court must dismiss the appeal if the notice was not timely
filed. Id.

         As previously noted, on September 9, 2005, the chancellor entered an order dismissing
Frazier’s case for lack of prosecution. Frazier’s notice of appeal was filed on October 31, 2005.
However, since Frazier is a pro se litigant incarcerated in a correctional facility, we do not look to
the date on which his notice of appeal was filed. Instead, “filing shall be timely if the papers were
delivered to the appropriate individual at the correctional facility within the time fixed for filing.”
Tenn. R. App. P. 20(g). Still, Frazier did not sign his notice of appeal until October 12, 2005, after
the thirty-day time limit for filing an appeal had expired. Therefore, he could not have delivered the
papers to the appropriate official for mailing in a timely manner. When timeliness of filing becomes
an issue, the burden is on the pro se litigant to establish compliance with the Rule. Tenn. R. App.
P. 20(g). Frazier did not mention the timeliness of his notice of appeal in his brief, and did not
attempt to establish compliance after the Defendants raised the issue in their brief. Because his
notice of appeal was not timely delivered for mailing, within thirty days of the final judgment, this
Court is without jurisdiction to hear the appeal. Frazier’s untimely notice of appeal is a nullity, and
therefore, the trial court’s order has become final.

        While we realize the “legal naivete” of a pro se litigant such as Frazier, we must not allow
him an unfair advantage because he represents himself. Irvin v. City of Clarksville, 767 S.W.2d 649,
651-52 (Tenn. Ct. App. 1989). Pro se litigants who invoke the complex and technical procedures
of the courts assume a very heavy burden. Id. at 652, (citing Gray v. Stillman White Co., 522 A.2d
737, 741 (R.I. 1987)). While they are entitled to fair and equal treatment, they must follow the same
procedures as a represented party. Id. (citations omitted).

        We find it appropriate to include the following observation of the Eastern Section of this
Court, when faced with this same situation in Grigsby v. Univ. of Tenn. Med. Ctr., No.
E2005-01099-COA-R3-CV, 2006 WL 408053, at *2-3 (Tenn. Ct. App. Feb. 22, 2006). The Court
was forced to dismiss the appeal of a pro se litigant because his notice of appeal was not timely filed,
and stated:

                We do not favor dismissing pro se litigants’ appeals on what might
                appear to be technicalities. However, while parties who choose to
                represent themselves are entitled to fair and equal treatment, they are
                not entitled to shift the burden of litigating their case to the courts, see


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               Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir.1983), or
               to be excused from complying with the same substantive and
               procedural requirements that other represented parties must adhere to.
               See Irvin v. City of Clarksville, 767 S .W.2d 649, 652 (Tenn. Ct. App.
               1988). Accordingly, they must act within the time periods provided
               by the applicable statutes and rules in order to have their cases
               considered. See Williams-Guice v. Board of Educ., 45 F.3d 161, 164
               (7th Cir.1995); Kelley v. Secretary, United States Dep’t of Labor, 812
               F.2d 1378, 1380 (Fed.Cir.1987).

Id., (citing Goad v. Pasipanodya, No. 01A01-9509-CV-00426, 1997 WL 749462, at *2 (Tenn. Ct.
App. Dec. 5, 1997)). Unfortunately Mr. Frazier’s appeal was not timely filed, and therefore we may
not consider the issues he has presented for our review.

                                        V. CONCLUSION

       For the aforementioned reasons, we dismiss this appeal and costs are assessed against the
Appellant, Leonard Frazier, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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