Gary Wayne Garrett v. Tennessee Board of Parole ( 2021 )

06/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 3, 2020
GARY WAYNE GARRETT v. TENNESSEE BOARD OF PAROLE
Appeal from the Chancery Court for Davidson County
No. 16-0355-I Claudia Bonnyman, Chancellor
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No. M2019-01742-COA-R3-CV
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An inmate petitioned for a common law writ of certiorari after the Tennessee Board of
Parole denied him parole. The trial court dismissed the petition. In this appeal, the inmate
argues that the Board’s action was illegal and arbitrary and that the rules and procedures in
place at the time of his crimes should have governed his parole. We affirm the dismissal
of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON II, J., joined.
Gary Wayne Garrett, Clifton, Tennessee, pro se appellant.
Herbert H. Slatery III, Attorney General and Reporter, and Charlotte Davis, Assistant
Attorney General, for the appellee, Tennessee Board of Parole.
OPINION
I.
In 1986, Gary W. Garrett was convicted of multiple offenses, including first degree
burglary while in possession of a firearm, aggravated rape, assault with intent to commit
rape while employing a firearm, and rape. State v. Garrett, C.C.A. No. 86-274-III, 1988
WL 3625, at *1 (Tenn. Crim. App. Jan. 20, 1988). He “received a total effective sentence
of 119 years.” Id.In 2015, the Tennessee Board of Parole denied him parole. The denial followed a
hearing in which Mr. Garrett, his siblings, and the family’s pastor spoke in favor of his
release. One of Mr. Garrett’s victims spoke in opposition to his release. Letters opposing
Mr. Garrett’s release were also submitted.
A Parole Board member, who was designated as the hearing officer, presided over
the hearing. See Tenn. Code Ann. § 40-28-105(d)(2) (2018). At the conclusion of the
hearing, the hearing officer announced that he would vote to deny parole based on “the
seriousness of the offense.” Later, three additional Parole Board members concurred in the
denial. See id. § 40-28-105(d)(6) (requiring the concurrence of four board members to
deny parole for certain offenses, including aggravated rape and rape). The members agreed
that “release from custody at the time would depreciate the seriousness of the crime of
which the defendant stands convicted or promote disrespect for the law.” Id. § 40-35-
503(b)(2) (2019).
Mr. Garrett appealed the denial of parole to the Parole Board based on alleged
hearing officer misconduct and significant procedural errors. See id. § 40-28-105(d)(11).
But a reviewer found Mr. Garrett’s claims not substantiated. Id.; TENN. COMP. R. & REGS.
1100-01-01-.08(4)(c) (2020).
Mr. Garrett then petitioned for a common law writ of certiorari. The chancery court
dismissed the petition. Garrett v. Tenn. Bd. of Parole, No. M2016-01738-COA-R3-CV,
2017 WL 4513570, at *2 (Tenn. Ct. App. Oct. 10, 2017). It determined that “the initial
filing was timely but unverified, thereby requiring dismissal for lack of jurisdiction.” Id.We reversed and remanded. Id. at *4. Based on Mr. Garrett’s claim that prison authorities
denied him access to a notary, we directed the court to consider “whether leave should be
granted to permit the late filing of the verified petition as a result of excusable neglect.”
Id. at *3.
On remand, the chancery court granted Mr. Garrett leave to late file his verified
petition due to excusable neglect. See Tenn. R. Civ. P. 60.02(2). The court considered the
merits of his claims and dismissed the petition.
II.
The grant of parole is a discretionary matter, vested exclusively in the Board. Doyle
v. Hampton, 340 S.W.2d 891, 893 (Tenn. 1960). “Prisoners do not have an absolute right
to be released from [prison] prior to the expiration of their sentences.” Hopkins v. Tenn.
Bd. of Paroles & Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001). So, parole is considered
a privilege, not a right. Tenn. Code Ann. § 40-35-503(b); Stewart v. Schofield, 368 S.W.3d
457, 463 (Tenn. 2012); TENN. COMP. R. & REGS. 1100-01-01-.02(2) (2019).
2
A writ of certiorari is the “procedural vehicle through which prisoners may seek
review of decisions by prison disciplinary boards, parole eligibility review boards, and
other similar administrative tribunals.” Settle v. Tenn. Dep’t of Corr., 276 S.W.3d 420,
425 (Tenn. Ct. App. 2008). Review is limited to a narrow examination of “whether the
Board exceeded its jurisdiction, or acted illegally, fraudulently, or arbitrarily.” Arnold v.
Tenn. Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997). We do not review the “intrinsic
correctness of the Board’s decision.” Stewart, 368 S.W.3d at 465.
A.
In this appeal, Mr. Garrett purportedly raises only two issues. Specifically,
ISSUE I
DID THE BOARD OF PAROLE ACT[] ILLEGALLY, ARBITRA[RIL]Y
AND CAPRICIOUS[LY] WHEN IT DID NOT COMPLY WITH THE
TENN. CODE ANN. [§§] 8-44-108,[1] 40-28-105(B)[2] AND THE B[OARD]
O[F] P[AROLE] RULES, TENN. COMP. RULES AND REG. CHAPTER
1100-01-01-.04(1)(a)[3] WHICH REQUIRED A QUORUM FOR HIS
HEARING?
ISSUE II
DID THE B[OARD] O[F] P[AROLE] VIOLATE [MR. GARRETT]’S
PROCEDURAL DUE PROCESS RIGHT WHEN THE BOARD DENIED
HIM PAROLE BASE[D] ON THE STATUTES, RULES, AND POLICIES
IN EFFECT IN 1985?
1
Tennessee Code Annotated § 8-44-108 provides, among other things, that a “governing body may
. . . allow participation by electronic or other means of communication for the benefit of the public and the
governing body in connection with any meeting authorized by law.” Tenn. Code Ann. § 8-44-108(b)(1)
(Supp. 2020). But, while permitting participation by electronic or other means, the statute also requires the
presence of “a physical quorum . . . at the location specified in the notice of the meeting as the location of
the meeting.” Id.
2
Tennessee Code Annotated § 40-28-105 applies specifically to the Parole Board. Subsection (b)
directs the board to “schedule hearings at each correctional institution or facility at times as may be
necessary to discharge its duties.” Tenn. Code Ann. § 40-28-105(b). It further requires all votes to “be by
public ballot or public roll call” and prohibits “secret ballots or secret roll calls.” Id.
3
The regulation provides that the quorum requirements for the Parole Board “shall be those
specified by law.” TENN. COMP. R. & REGS. 1100-01-01-.04(1)(a) (2019). Statute provides that “[a]
majority of members of the board shall constitute a quorum for official administrative business.” Tenn.
Code Ann. § 40-28-105(d)(1). The Parole Board is composed of seven members. Id. § 40-28-103(a)
(2018).
3
But, in his argument, Mr. Garrett touches on a host of other issues. Because Mr. Garrett
represents himself and lacks legal training, we grant him “a certain amount of leeway in
drafting . . . pleadings and briefs.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App.
2003) (citing Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000);
Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997)).
Yet, we “must not excuse pro se litigants from complying with the same substantive and
procedural rules that represented parties are expected to observe.” Hessmer v. Hessmer,
138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
One of those procedural rules is the requirement that the brief of an appellant include
“[a] statement of the issues presented for review.” Tenn. R. App. P. 27(a)(4). When an
issue is argued in a brief but not included in the statement of issues, we consider the issue
waived. Childress v. Union Realty Co., Ltd., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002);
Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001). So we only address the issues
designated in Mr. Garrett’s statement of issues.
B.
For his first issue, Mr. Garrett argues that the Parole Board acted illegally,
arbitrarily, and capriciously when his “parole hearing was conducted by one board member
instead of a quorum.” He relies on statutes and a regulation setting quorum requirements
for meetings. See, e.g., Tenn. Code Ann. § 40-28-105(b), (d)(1); TENN. COMP. R. &
REGS. 1100-01-01-.04(1)(a) (2019).
Although the Parole Board meetings do have quorum requirements, nothing in the
statute specifying the requirement mandates that the board “meet and deliberate prior to
making a parole decision.” Arnold, 956 S.W.2d at 481. Our supreme court expressed the
view that “the legislature ha[d] . . . purposely eliminated language that required the Board
to meet in order to make parole decisions.” Id. at 482. The court also viewed the practice
that Mr. Garrett now complains of, the “practice of submitting the hearing officer’s
recommendations in writing to each Board member individually[,] . . . [as] consistent with
the legislative intent.” Id. Because the Parole Board is not required to meet to make a
parole decision, quorum requirements have no application. So Mr. Garrett’s argument
concerning the manner in which his parole hearing was conducted is unavailing.
C.
Mr. Garrett’s claimed due process violation stems from the Parole Board’s failure
to apply law from 1982 and 1985 to its decision. Or, as he restates the issue, is he “entitle[d]
to mandatory or discretionary parole based on the . . . factors, practices and procedures set
out [in] the statutes and regulations that created a liberty interest in 1982 & 1985?”
4
No matter how he frames the issue, Mr. Garrett’s claims lack merit. First, the parole
statutes and regulations create no protected liberty interest nor did they at the time he
committed his crimes. The case Mr. Garrett relies on to support his claim of a protected
liberty interest, Mayes v. Trammell, 751 F.2d 175 (6th Cir. 1984), was overruled in Wright
v. Trammell, 810 F.2d 589, 590-91 (6th Cir. 1987). In Wright, the court observed that
Mayes found a protected liberty interest based on the wording of a Parole Board rule, but
the rule was amended “effective on April 10, 1985,” to “eliminate[] the words from the
former rule which granted a constitutionally-protected liberty interest.” Id. According to
the administrative record, Mr. Garrett’s crimes occurred from June through September of
1985, after the change in the Parole Board rule.
No prisoner has a “constitutional or inherent right . . . to be conditionally released
before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979). As we have already noted, in Tennessee, “[r]elease on
parole is a privilege and not a right.” Tenn. Code Ann. § 40-35-503(b); Brennan v. Bd. of
Parole, 512 S.W.3d 871, 873 (Tenn. 2017). “Without [a constitutionally-protected liberty
interest in parole], due process does not attach.” Phifer v. Tenn. Bd. of Parole, No. M2000-
01509-COA-R3-CV, 2002 WL 31443204, at *3 (Tenn. Ct. App. Nov. 1, 2002).
Second, the laws applicable at the time of Mr. Garrett’s crimes did not entitle him
to mandatory parole. In Hickman v. Tenn. Bd. of Paroles, this Court explained:
The concept of “mandatory parole” now found in Tenn. Code Ann. § 40-28-
117(b) entered our law in 1974. Mandatory parole and
discretionary parole coexisted until the Tennessee General Assembly
enacted the Tennessee Criminal Sentencing Reform Act of 1982 which
substantially rewrote our state’s sentencing and parole laws. To avoid ex
post facto challenges, the 1982 Act explicitly stated that it applied to “all
persons who commit crimes on or after July 1, 1982.” Tenn. Code Ann. § 40-
35-112(a) (1986) (repealed). The Tennessee General Assembly purposely
did not repeal the mandatory parole statute because it continued to govern
the sentence and release of persons who committed crimes prior to July 1,
1982. However, in light of the fact that the sentencing and release of persons
committing crimes after July 1, 1982 was governed by the Tennessee
Criminal Sentencing Reform Act of 1982, persons who committed crimes
after July 1, 1982 were not entitled to mandatory parole simply because the
Tennessee Criminal Sentencing Reform Act of 1982 did not contain a
provision for mandatory parole.
78 S.W.3d 285, 290 (Tenn. Ct. App. 2001) (footnotes omitted) (emphasis added).
Mr. Garrett devotes much space in his brief attempting to illustrate how the 1985
amendments to the 1982 Tennessee Criminal Sentencing Act entitle him to relief. But, the
5
1985 amendments did not make any substantive changes to the statutes affecting eligibility
for parole nor do the amendments entitle him to mandatory parole.4 See 1985 Tenn. Pub.
Acts 22. Based on the dates he committed his crimes, the mandatory parole provisions
were not applicable to Mr. Garrett.
III.
We conclude that the Parole Board applied the correct law and procedures in
denying Mr. Garrett parole. So we affirm the decision of the chancery court.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
4
The amendments did impact parole eligibility in cases involving sentencing agreements. 1985
Tenn. Pub. Acts 22, 32-33 (ch. 5, §§ 25, 26). But the record does not reflect that Mr. Garrett entered into a
sentencing agreement.
6