                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs March 14, 2001

                   LARRY W. HOPKINS v. TENNESSEE BOARD
                       OF PAROLES AND PROBATION

                     Appeal from the Chancery Court for Davidson County
                        No. 00-281-II Ellen Hobbs Lyle, Chancellor



                                  No. M2000-01956-COA-R3-CV



This appeal involves a prisoner’s efforts to be paroled from his sentence for aggravated rape. After
the Tennessee Board of Paroles declined for the sixth time to parole him, the prisoner filed a petition
for common-law writ of certiorari in the Chancery Court challenging the Board’s latest decision and
the procedure used to reach it. The trial court dismissed the petition for failure to state a claim upon
which relief could be granted, and the prisoner has appealed. We affirm the trial court’s decision.


     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM C. KOCH , JR ., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ. , joined.

Larry W. Hopkins, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Arthur Crownover, II, Senior Counsel,
Nashville, Tennessee, for the appellee, Tennessee Board of Paroles and Probation.

                                              OPINION

        Larry W. Hopkins was convicted of aggravated rape in Shelby County and is currently
incarcerated at the Hardeman County Correctional Facility in Whiteville. His sentence will expire
in 2015. During his almost twenty years of incarceration, Mr. Hopkins has been considered for
parole on numerous occasions, but the Tennessee Board of Paroles (“Board”) has declined to parole
him each time.

     After the Board declined to parole him in March 1998, Mr. Hopkins filed a petition for
common-law writ of certiorari in the Chancery Court for Davidson County challenging the Board’s
decision on the ground that it was based on a misinterpretation of an August 1997 psychological
examination. In March 1999, the Board agreed to provide Mr. Hopkins with another hearing, and
on April 19, 1999, the trial court granted the Department’s motion to dismiss Mr. Hopkins’s petition
because it was moot.

        Mr. Hopkins participated in another parole hearing on May 27, 1999. The hearing was
conducted by two members of the Board, one of whom had conducted the March 1998 hearing. The
Board formally notified Mr. Hopkins on June 9, 1999, that it had again declined to parole him. In
its formal notice, the Board stated that its decision was based on the seriousness of Mr. Hopkins’s
offense and on its conclusion that paroling Mr. Hopkins “would have a substantially adverse effect
on institutional discipline.” The Board also informed Mr. Hopkins that he would not be considered
for parole again until 2005.

        After exhausting his appellate remedies before the full Board,1 Mr. Hopkins filed another
petition for common-law writ of certiorari in the Chancery Court of Davidson County. Mr. Hopkins
took issue in this petition with the Board’s procedures, as well as the substance of its decision, and
alleged that the Board was discriminating against him because it had paroled prisoners who had
committed more serious offenses and who had worse institutional records. The Board responded
with a Tenn. R. Civ. P. 12.02(6) motion to dismiss the petition on the ground that the petition failed
to state a claim upon which relief could be granted. On June 30, 2000, the trial court entered an
order dismissing Mr. Hopkins’s petition. Thereafter, Mr. Hopkins filed a timely notice of appeal.

                                                      I.

        Prisoners do not have an absolute right to be released from confinement prior to the
expiration of their sentence. Graham v. State, 202 Tenn. 423, 426, 304 S.W.2d 622, 623-24 (1957);
Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999); Tarpley v. Traughber, 944
S.W.2d 394, 395 (Tenn. Ct. App. 1996). Thus, parole is a privilege and not a right. Tenn. Code
Ann. §§ 40-28-117(a), 40-35-503(b) (1997); Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478,
482 (Tenn. 1997). Whether a prisoner should be granted parole is a decision entrusted to the Board,
not the courts. State ex. rel. Ivey v. Meadows, 216 Tenn. 678, 685, 393 S.W.2d 744, 747 (1965);
Rucker v. State, 556 S.W.2d 774, 776 (Tenn. Crim. App. 1977).

         Persons dissatisfied with the Board’s decisions may obtain judicial review using a petition
for common-law writ of certiorari. This petition limits the scope of review to a determination of
whether the Board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. Turner
v. Tennessee Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999); South v. Tennessee Bd. of
Paroles, 946 S.W.2d 310, 311 (Tenn. Ct. App. 1996); Powell v. Parole Eligibility Review Bd., 879
S.W.2d 871, 873 (Tenn. Ct. App. 1994). The petition does not empower the courts to inquire into
the intrinsic correctness of the Board’s decision. Robinson v. Traughber, 13 S.W.3d at 364; Turner


       1
           The Board denied Mr. Hopkins’ request for an appeal on December 9, 1999.

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v. Tennessee Bd. of Paroles, 993 S.W.2d at 80. Thus, the courts will not use the common-law writ
to grant relief when the Board’s decision was arrived at in a constitutional and lawful manner. Tenn.
Code Ann. § 40-28-115(c) (1997); Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d at 480; Powell
v. Parole Eligibility Review Bd., 879 S.W.2d at 873.

                                                         II.

        Mr. Hopkins has five complaints regarding the Board’s hearing procedure and decision.
They are the typical complaints made by disappointed prisoners after they are not paroled, and, like
the trial court, we have encountered them before. First, Mr. Hopkins asserts that the Board’s
procedure was flawed because the Board member who presided at the March 1998 hearing
participated in the May 27, 1999 hearing. He claims that the Board member’s participation in the
May 1999 hearing violated Tenn. Code Ann. § 40-28-105(d)(6) (1999)2 relating to the appellate
review of decisions to deny, revoke, or rescind parole. This statute is inapplicable in this case,
however, because the May 1999 hearing was not an appellate review hearing by the Board, but rather
an initial hearing that took the place of the March 1998 hearing.

        Mr. Hopkins also asserts that one of the Board members who conducted the May 1999
hearing was intimidating, hostile, and rude to one of Mr. Hopkins’s guests. Specifically, Mr.
Hopkins asserts that the Board member’s question, “Now do you think you had a fair hearing?”
reflects that the questioner “had it in for [him] from the beginning of the hearing to the end.”
Demeanor is a subjective thing that cannot be meaningfully reviewed in the absence of a transcript
of the proceedings. While hostility could theoretically rise to the level of unconstitutional bias, a
decision to deny parole will not be undermined because a Board member was unsympathetic, hostile,
or even rude, as long as the Board’s decision has factual and legal support. The Board’s decision
has just such support in this case, and accordingly we will inquire no further into its intrinsic
correctness.

        Mr. Hopkins maintains that the Board acted arbitrarily and fraudulently by declining to
parole him because he has an outstanding institutional record and because the Board has paroled
other prisoners with more serious criminal and institutional records. Prisoners are not entitled to
parole simply because they have a good institutional record. Graham v. State, 202 Tenn. at 426, 304
S.W.2d at 623; Robinson v. Traughber, 13 S.W.3d at 364. The record before us belies Mr.
Hopkins’s assertion that his institutional record is outstanding. He admits to four minor disciplinary
infractions during the last ten years, and he had a positive drug screen in January 1999. Parole
decisions are fact-intensive and focus on the individual prisoner seeking parole. The Board
determined that paroling Mr. Hopkins would substantially affect institutional discipline. We will
inquire no further into the intrinsic correctness of this decision.




       2
           This provision is currently codified as amended at Tenn. Cod e Ann. § 40-28-10 5(d) (11) (Supp. 2000).

                                                         -3-
         Mr. Hopkins argues that the Board acted impermissibly by denying him parole because of
the seriousness of his offense and because of the effect that granting him parole might have on
institutional discipline. These reasons for denying parole are based on Tenn. Code Ann. § 40-35-
503(b)(2), (3) (1997). The courts have held repeatedly that the Board may consider the seriousness
of a prisoner’s offense when making parole decisions. Arnold v. Tennessee Bd. of Paroles, 956
S.W.2d at 482; Robinson v. Traughber, 13 S.W.3d at 363; Boyd v. Tennessee Bd. of Paroles, No.
M1998-00914-COA-R3-CV, 2001 WL 360702, at *2 (Tenn. Ct. App. Apr. 12, 2001) (No Tenn. R.
App. P. 11 application filed). In addition, we have upheld decisions denying parole based on the
Board’s concern regarding the adverse effect parole would have on institutional discipline. Perry
v. Tennessee Bd. of Paroles, No. M1998-01018-COA-R3-CV, 2001 WL 46990, at * 1 (Tenn. Ct.
App. Jan. 22, 2001) (No Tenn. R. App. P. 11 application filed). Accordingly, the basis for the
Board’s decision to deny Mr. Hopkins parole does not reflect arbitrary or illegal action on behalf
of the Board.

        Finally, Mr. Hopkins argues that the Board erred by failing to provide him with an adequate
statement of the evidence that the Board relied on in making its decision. This argument fails, like
the others, because the Board gave two adequate, legally-supported justifications for denying Mr.
Hopkins parole, namely the severity of his offense and the risk of adverse effects on institutional
discipline. No more definite statement was required.

                                                III.

       We affirm the dismissal of Mr. Hopkins’s petition and remand the case to the trial court for
whatever further proceedings may be required. We tax the costs of this appeal to Larry W. Hopkins
for which execution, if necessary, may issue.




                                                       _________________________
                                                       WILLIAM C. KOCH, JR., JUDGE




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