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Ferguson v. Tennessee Board of Parole

Court of Appeals of Tennessee, Nashville

July 9, 2019

REX A. FERGUSON
v.
TENNESSEE BOARD OF PAROLE

          Assigned on Briefs June 3, 2019

          Appeal from the Chancery Court for Davidson County No. 17-548-III Ellen H. Lyle, Chancellor

         This is an appeal from the judgment of the trial court denying an inmate's petition for writ of certiorari challenging the Tennessee Board of Parole's denial of parole. The inmate contends the Board's decision to deny parole based solely on the seriousness of the offense was arbitrary and capricious, and the trial court abused its discretion in denying his petition. More specifically, he contends that denying parole on the basis of one factor, the seriousness of the offenses, "in the face of so many positive factors, without an explanation of how these positive factors do not outweigh the seriousness of the offense, constitutes an arbitrary and capricious decision contrary to the weight of the evidence in the record." Having determined that "'seriousness of the offense' is a proper, independent basis to deny parole release," the trial court denied the petition for writ of certiorari. Because the seriousness of the offense is a proper, independent basis for denying parole under Tenn. Code Ann. § 40-35-503(b)(2), and the trial court did not abuse its discretion in denying the petition, we affirm.

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

          Randall Eugene Reagan and Douglas A. Trant, Knoxville, Tennessee, for the appellant, Rex A. Ferguson.

          Pamela S. Lorch, Nashville, Tennessee, for the appellee, Tennessee Board of Parole.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson II and Kenny W. Armstrong, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Rex A. Ferguson ("Petitioner"), who has been incarcerated since 1993, is serving a 96-year sentence on two counts of especially aggravated kidnapping and three counts of aggravated rape of two women.

         The Tennessee Board of Parole (the "Board") held its initial parole-release hearing concerning Petitioner on August 1, 2016. In support of his request for parole, Petitioner presented certificates of completion regarding several vocational training courses, as well as courses in anger management, alcohol and substance abuse, and the pro-life social class. In addition, he presented several letters of support from correctional staff and Petitioner's family. It was also recognized that he received his General Equivalency Diploma in 1993 from the Tennessee Department of Corrections. Additionally, Petitioner presented a Parole Offender Release Plan establishing that he had obtained employment upon his release and detailing where he would be living. No one appeared in opposition to Petitioner being granted parole, no written statements in opposition to parole were presented, and it was undisputed that Petitioner had no disciplinary "write-ups" since 2013.

         During the August 1, 2016 hearing, the Board voted to continue the hearing in order to obtain a psychological evaluation of Petitioner. After receiving the psychological evaluation, the Board reconvened the hearing on March 28, 2017, and denied parole due to the seriousness of his offenses.

         On June 1, 2017, Petitioner filed a petition for common-law writ of certiorari challenging the denial of parole by the Board. On February 16, 2018, the Board filed a Notice of No Opposition to Granting Petition for Writ of Certiorari. The trial court granted the petition for writ of certiorari by written order filed on February 23, 2018, ordered the Board to prepare and certify the record of the parole board proceedings, and set a briefing schedule. On August 30, 2018, the trial court filed its Memorandum and Order Denying Petition for Writ of Certiorari Challenging Denial of Parole. This appeal followed.

         Analysis

         "Prisoners do not have an absolute right to be released on parole." Brennan v. Bd. of Parole, 512 S.W.3d 871, 873 (Tenn. 2017). "Parole is a privilege, not a right." Id. (citing Tenn. Code Ann. §§ 40-28-117(a)(1), 40-35-503(b); Tenn. Bd. Parole R. 1100-01-01-.02(2)); see also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) ("There is no constitutional or inherent right of a ...


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