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Newell v. Montgomery

Court of Appeals of Tennessee, Nashville

September 15, 2017

JIMMY NEWELL
v.
RICHARD MONTGOMERY, ET AL.

          Assigned on Briefs March 1, 2017

         Appeal from the Chancery Court for Davidson County No. 15-334-III Ellen H. Lyle, Chancellor

         The petitioner sought a writ of certiorari seeking redress for the respondents' failure to schedule an initial parole hearing prior to his release eligibility date. The trial court dismissed the petition as moot, finding that a parole hearing was conducted following the filing of the petition and that any challenge relating to the parole hearing was untimely. The petitioner appeals. We affirm.

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

          Jimmy Newell, Hartsville, Tennessee, Pro Se.

          Herbert H. Slatery, III, Attorney General and Reporter, and Andrée S. Blumstein, Solicitor General, Nashville, Tennessee, for the appellees, the Tennessee Board of Parole; the Tennessee Department of Correction; Richard Montgomery, Chairman of the Tennessee Board of Parole; and Derrick Schofield, Commissioner of the Tennessee Department of Correction.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Brandon O. Gibson, J., joined.

          MEMORANDUM OPINION [1]

          JOHN W. MCCLARTY, JUDGE

         Jimmy Newell ("Petitioner") is an inmate housed in the Trousdale Turner Correctional Facility, where he is serving a four-year sentence for two counts of theft of property. Petitioner first entered the custody of the Tennessee Department of Correction ("TDOC") on July 17, 2014. An initial parole hearing was scheduled for September 22, 2014, due to his release eligibility date of January 20, 2015. See Tenn. Code Ann. § 40-35-503(d)(1) ("[The Tennessee Board of Parole ("the Board")] shall conduct a hearing within a reasonable time prior to a defendant's release eligibility date to determine a defendant's fitness for parole"). The September 2014 hearing was reset for an unspecified date in January 2015 due to Petitioner's institutional transfer to the Hardeman County Correctional Facility. Prior to the newly scheduled hearing in January 2015, Petitioner attended court in Hamilton County, Tennessee, necessitating an "Out to Court" status in the TOMIS computer system. This status persisted due to a clerical oversight even after Petitioner's return to his facility on November 21, 2014. Petitioner was removed from the January parole hearing docket as a result of the incorrect status.

         Petitioner made multiple requests to numerous individuals in an attempt to correct his status in time for the January 2015 hearing. His requests were unsuccessful, and he then exhausted his administrative remedies. Meanwhile, Petitioner was classified as a "close" custody inmate based upon a Class A disciplinary infraction for assault arising from an incident on February 9, 2015.

         On March 18, 2015, Petitioner filed a petition for writ of certiorari, naming the Tennessee Board of Parole; the Tennessee Department of Correction; Richard Montgomery, Chairman of the Tennessee Board of Parole; and Derrick Schofield, Commissioner of the Tennessee Department of Correction as respondents (collectively "Respondents"). Petitioner requested his placement on the parole docket as soon as possible and "an order compelling [TDOC] and [the Board] to update policy and rules with corrective procedure to protect the due process rights of offenders to have hearings prior to their release eligibility dates; if necessary as an add-on to the parole docket."

         During the pendency of the certiorari proceeding, Petitioner was granted an initial parole hearing on May 18, 2015. At the conclusion of the hearing, Hearings Officer Madden informed Petitioner that he could not recommend parole based upon Petitioner's classification as a "close" custody inmate. He continued, in pertinent part, as follows:

[I]t's policy. The Class A write-up would have been an automatic 12 months put off. But due to the fact that you're on close custody, my recommendation at this time is to decline you the balance of sentence due to the seriousness of the offense and adverse effect on discipline. You do not have enough time to come back up. We've practically flattened in two years. So I'm just going to go ahead and decline you the balance of sentence.

         Officer Madden further advised Petitioner that he could file an appeal "under new information" if the infraction and "close" custody status were overturned.[2] Thereafter, Officer Madden recommended declining parole based upon the seriousness of the convicting offense and the adverse effect on institutional discipline in light of the Class A infraction while in custody. ...


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