Lloyd McPherson v. Tennessee Board of Probation & Parole ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 24, 2005
LLOYD McPHERSON v. TENNESSEE BOARD OF PROBATION AND
PAROLE
Appeal from the Chancery Court for Hickman County
No. 03-292C Russ Heldman, Judge
No. M2004-01307-COA-R3-CV - Filed January 12, 2006
This appeal involves a prisoner seeking custodial parole. After the Tennessee Board of Probation
and Parole denied his request, the prisoner filed a petition for a common-law writ of certiorari in the
Chancery Court for Hickman County seeking judicial review of the Board’s decision. The trial court
dismissed the petition because it was not timely filed, and the prisoner has appealed. We agree with
the trial court’s conclusion that the petition was not timely filed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.
Lloyd McPherson, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer
L. Brenner, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole.
MEMORANDUM OPINION1
Lloyd McPherson is incarcerated at the Turney Center Industrial Prison in Only, Tennessee
where he is serving a life sentence after being convicted in 1974 as a habitual criminal and also
receiving a ninety-nine-year sentence for first degree murder in 1975 and a one-year sentence for
escape in 1981. On June 10, 2003, the Tennessee Board of Probation and Parole declined to grant
him custodial parole to begin serving his 1981 sentence. Thereafter, on November 6, 2003, Mr.
Lloyd filed a petition for a common-law writ of certiorari in the Chancery Court for Hickman County
1
Tenn. Ct. App. R. 10 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. W hen 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“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any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 any unrelated case.
seeking judicial review of the Board’s decision. The Board filed a motion for summary judgment
on the ground that Mr. McPherson’s petition was not filed within the sixty-day time limit required
by Tenn. Code Ann. § 27-9-102 (2000). The trial court granted the motion and dismissed the
petition. Mr. McPherson has appealed.
Mr. McPherson’s custodial parole hearing was conducted on June 10, 2003. The Board
declined to parole him on June 16, 2003 because of the seriousness of his offenses. Mr. McPherson
decided to pursue an internal administrative appeal but failed to file the appeal until five days after
the deadline for filing administrative appeals. Accordingly, the appeal did not toll the running of
Tenn. Code Ann. § 27-9-102’s sixty-day period for seeking judicial review. Turner v. Tenn. Bd. of
Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999).
The sixty-day time limit in Tenn. Code Ann. § 27-9-102 is mandatory and jurisdictional.
Hickman v. Tenn. Bd. of Paroles, 78 S.W.3d 285, 289 (Tenn. Ct. App. 2001). Mr. McPherson’s
petition was filed well after the Board’s decision; therefore, the trial court properly dismissed his
petition because it was time-barred. We tax the costs of this appeal to Lloyd McPherson. We also
find that Mr. McPherson’s petition for a writ of common-law certiorari and subsequent appeal are
frivolous in accordance with Tenn. Code Ann. §§ 41-21-807(c), -816(a)(1) (2003).
______________________________
WILLIAM C. KOCH, JR., P.J., M.S.
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