Joseph P. Dyer III v. James Bowlen, Warden

service, provided by a internet even when provide cable modem upgrades tern But if term operator.” “cable even service re- Cable modem service.... inter- could somehow at the headend “other service” be special equipment quires service, there system. preted to extend to internet of the cable parts in other and 551(a)(2)(A) providing §in is an exclusion at the headend is Cable located Often in- (“CMTS”), ‘personally term identifiable System “the Termination Modem any does not include record two- formation’ ... enables enhanced which identify aggregate data does not essential cable mo- which ivay capabilities particular persons.” U.S.C.A. service. dem 551(a)(2)(A). only § The record contain- added). sys- (emphasis Id. at 4807 identity “particular persons” access deliver internet tems complaint, in the as noted mentioned 551(b) § are not those that subscribers above, internet ser- list Comcast Hence, plaintiff because addresses. subscribers, standing alone— vice which— per- defendant that the collected alleged obviously is not covered the Act. We by means identifiable information sonally complaint conclude that the fails therefore provided it through which system of a 551(a). § a claim to state under service, service, instead of cable internet a claim un- did not state complaint III. CONCLUSION 551(b) violation § of subscriber der properly it was and therefore privacy, above, AF- For set out the reasons we 12(b)(6). under Rule dismissed court. judgment FIRM the of the district complaint find that the likewise We 551(a), § claim under which state a

fails by a opera notice “cable written

requires “any cable service the subscriber

tor” to person service” “nature

or other information or to collected

ally identifiable respect to the subscriber collected with the use of informa nature of such Joseph III, P. DYER Petitioner- concerning information tion,” well as Appellant, will be the data maintained long how be disclosed. 47 U.S.C.A. it will to whom BOWLEN, Warden, James 551(a)(1). from the think is clear

§ We Respondent-Appellee. “other ser analysis term above broad, vice,” was intended to although No. 04-5478. service, which internet to broadband apply of Appeals, States Court United time that Act at the the Cable not exist did Sixth Circuit. supported This conclusion is passed. (2)(B) in subsection that de by language April 2006. Submitted: “any to include wire “other service” fines Aug. Filed: Decided and provided communications service radio opera using any of the facilities a cable

tor that are used in the cable (em 551(a)(2)(B) 47 U.S.C.A. service.” added). held,

phasis today As we have does not broadband service” include

“cable Angele Gregory,

ON BRIEF: Office M. General, Nashville, Attorney Ten- Ten- decision of the Reviewing the P. relief. Joseph nessee, Respondent. under the defer- Tennessee, Appeals nessee Court Pikeville, se. III, pro standard, the district AEDPA ential GILMAN, SUHRHEINRICH, Before: For the reasons Dyer’s petition. denied ROGERS, Judges. Circuit below, judg- VACATE set forth we REMAND court and ment of the district GILMAN, J., opinion of the delivered proceedings consistent the case for further SUHRHEINRICH, J., court, in which the opinion. this with 292), SUHRHEINRICH, (p. J. joined. concurring separate delivered a also I. BACKGROUND 292-95), ROGERS, (pp. opinion. J. hearing in parole Dyer’s At first dissenting opinion. separate a delivered request his for board denied parole the of his because of seriousness parole the OPINION granted pa- a second Dyer was offenses. GILMAN, LEE Circuit RONALD again in but the board hearing role Judge. Fol- him the same basis. parole denied on Dyer peti- filed a lowing hearing, the 1998 Dyer, III was con- Joseph P. In Chancery of Davidson tion in the court on two in a state victed Tennessee a of common law certiorari County for writ on two first-degree murder and counts of parole board. to review actions was sen- grand larceny. He counts of Dyer pa- claimed that the petition, In his death, was his sentence tenced to but ex facto and role board committed imprisonment because commuted to life applied it process due violations when statute was de- Tennessee’s death penalty rather than the parole current standard Dyer’s direct clared unconstitutional while in at the time of his convic- standard effect His convictions and appeal pending. was tions. appeal. on sentence were affirmed in effect at parole The relevant standard pa- Dyer granted was his second

When Dyer’s provided: convictions the time parole Tennessee hearing role in (197k): Pa- § Ann. Tenn.Code statutory parole standard used the board k0-361k right, not a no being privilege role a and hearing at the time of the effect —rather released on prisoner shall at the time of than the standard in effect merely good a for conduct reward that his offenses—to determine assigned performance efficient of duties peti- a eligible parole. filed not if the board is of the prison, only but in the state- postconviction tion for relief proba- opinion that is reasonable there system, claiming that he bility that if such is released prisoner Ex members both the Post board violated liberty and remain at without will live States Consti- Facto Clause the United law, that release is violating the his the Due Process Clause of tution and welfare of so- incompatible Fourteenth to the Constitu- Amendment determine, so ciety. If the board shall stan- they tion when applied go allowed to prisoner shall be such his offenses. dards enacted after parole .... Dyer’s upon courts claims. Tennessee dismissed added.) (Emphasis se, subsequently filed Dyer, acting pro contrast, parole standard corpus the relevant petition for a of habeas writ hearing Dyer’s at the time of to 28 effect pursuant federal U.S.C. district court provided: applied § asserting grounds same b0-28-117(a) (1998): Ann. (superseded)). Tenn.Code 1100-1-1.06 Once the Ten being privilege Parole and not a nessee right, court focused its attention on the rule, prisoner good-candidacy no shall be released on quickly determined Dyer’s merely good as a reward for conduct or claims were foreclosed Kaylor performance assigned Bradley, efficient of duties 912 S.W.2d (Tenn.Ct.App.1995) in prison, only (holding if the board is of the pa role board’s failure to opinion proba- apply good-can there is reasonable didacy bility released, if rule effect at prisoner, such the time of the prisoner’s liberty will live and remain at offense was not an without violation). law, violating Turning and that to one of prison- other arguments er’s release is not incompatible applica with the —that standard, tion of the society. welfare of If new particular the board so de- termines, ly the prisoner may provision, such seriousness paroled be increased his court held that “the [ser —the section does parole iousness] not affect W-35-503(b) (1998): § Tenn.Code Ann. eligibility date or denial parole, in parole privilege Release on is a and not stead enumerates one reason which the right, and no inmate shall granted elect, parole may discretion, in its parole if the board that: finds deny parole.” Dyer, WL (2) *2. custody The release from at the Following this in depreciate

time would decision seriousness Tennessee Appeals, Dyer Court of petition the crime of which the defendant filed a for a writ of corpus stands habeas in promote convicted or disre- federal district pursuant § court spect for the to 28 U.S.C. law. again argued parole that the board violat- added.) Dyer (Emphasis claimed in his ed the Ex Post Facto and Due Process petition application “harsher, Clauses of the Constitution applied when it more severe” parole statutes his 1998 current statutes rather than the hearing caused him parole, to be denied statute effect at the time of his offenses. and that “[i]f laws and rules which The district court granted the warden’s used, were in effect in 1974 had been motion for summary judgment, denied outcome of parole hearing would have Dyer’s summary judg- cross-motion for been different.” ment, Dyer’s petition. dismissed Rather than analyzing Dyer’s claims a timely appeal. filed notice of This on statutory changes, based the Ten court granted Dyer a appeal- certificate of nessee of Appeals treated ability as to whether the board vio- petition primarily as if it relied on Rule lated the Ex Post Facto Clause when it 1100-1-1-.06 of the Rules of the Tennes retroactively applied Tennessee Code (the see Boards of Parole good-candidacy 40-28-117(a) (the §§ may/shall provision)

rule), an earlier provided: rule that 40-35-503(b) (the provi- seriousness operates “The Board under the presump sion) in reaching its 1998 decision tion that each resident who eligible is regarding Dyer. worthy is a candidate and thus the presumes Board that he will be released II. ANALYSIS on when he eligible.” Dyer is first A. Standard of review Paroles, v. Tenn. Bd. 2001 WL 2001) *1 (Tenn.Ct.App. Apr.23, (unpub In a corpus appeal, habeas we review a lished) (quoting Tenn. Comp. Regs. novo, R. & r. district legal court’s conclusions de 1495); Motley, v. also Fulcher see findings S.Ct. its factual aside not set

but will (“The Cir.2006) (6th 444 F.3d Lucas clearly erroneous. they are unless Cir.1999). rule (6th decisional 412, 416 Court’s O’Dea, [state] 179 F.3d clearly federal contrary de- established for state-court of review The standard law, appropri however, by the de review terminations, governed therefore novo ate.”). Penalty Death and Effective Antiterrorism (AEDPA), at 28 U.S.C. codified

Act law is unrea- of federal 2254(d). AEDPA provides identifies “the state court where sonable of habeas writ [a]n legal principle from governing the correct custody person of a on behalf corpus unrea- decisions but Supreme] Court’s [the of a State judgment to the pursuant to the facts principle sonably applies respect granted hot be court shall Id. assess- prisoner’s case.” When of the adjudicated on the that was any claim unreasonableness, “a federal habeas unless proceedings court merits State simply be- may not issue the writ claim adjudication independent judg- concludes its cause it that was a decision resulted decision the relevant state-court ment that to, an unreason- contrary involved law er- clearly established federal applied of, clearly established able Rather, incorrectly. ap- roneously or law, by the Su- determined federal Id. also unreasonable.” plication must States; or the United Court of preme 411, findings Factual at 120 S.Ct. 1495. (2) that was court, moreover, a decision are by resulted state made determina- an on unreasonable of clear based in the absence presumed correct light of the evi- facts contrary. convincing tion of evidence to and 2254(e)(1). in the State court presented § dence 28 U.S.C.

proceeding. fails to address the a state When court Id. claim, we review petitioner’s federal Howard, at 467. 405 F.3d claim de novo. AEDPA, we purposes

For If, however, square- a state does court court decision on state the last review engages what ly address the claim case is the decision merits, in this which analy- constitutional proper resembles the Appeals. See Court the Tennessee law, and sis, and the we review record Bouchard, 459, 405 F.3d 469 v. Howard only if determine that the reverse will we Cir.2005). (6th A state-court decision to, contrary court decision state “if the contrary to federal law considered of, federal law. application unreasonable opposite a conclusion arrives state (6th 851, 854 Bagley, 445 F.3d Filiaggi v. on by [Supreme] Court that reached Cir.2006). or if the state court of law question differently than the [Su a case decides proving an ex Requirements B. materially has on a set of preme] post facto violation Tay Williams v. facts.” indistinguishable issues, 362, 413, regarding both 120 146 Two lor, 529 U.S. of the new (2000). application retroactive the state court board’s When 389 L.Ed.2d (1) us: now before contrary parole provisions, to federal are a decision that issues post an ex commit Did the law, petition merits of the we review retroactively applied facto violation when it Magana v. novo. See claim de er’s Hof (2) (6th Cir.2001) it com- did may/shall provision, and bauer, 551 263 F.3d when ret- facto violation post mit an ex Williams, 529 U.S. (citing roactively applied provi- crimes, the seriousness for covered and inquiries employ conjectural sion? Because these two such effects are insufficient for analysis, we will dis- any a similar method might threshold we establish under together. Clause.”). cuss them the Ex Post Facto The 'Supreme Court has held that prohibits

The Constitution states laws is post facto laws. imposing from U.S. CONST, unconstitutional where inmates can dem I, art. cl. 1. An ex (1) certainty onstrate with punish that their possesses facto law two elements: “it ment increased as a result of the retroac apply occurring must to events before its enactment,” application. Lynce, tive example, disadvantage and “it must the Court considered whether Lynce the offender affected it.” v. Florida’s Mathis, 433, 441, provisional-re retroactive elimination of 519 U.S. (1997) (citation lease credits for certain 137 L.Ed.2d 63 classes of inmates quota omitted) constituted an ex post facto violation. 519 (holding tion marks that a Florida U.S. S.Ct. 891. The canceling provisional petitioner statute release cred Clause). in Lynce early was released prison its violated the Ex Post Facto from partially as a result of parole provisions Retroactive his accumulation of provisional-release prohibition falls within the ex if credits awarded prison state of Florida to alleviate such an creates a “sufficient over crowding. increasing punish risk of the measure of S.Ct. 891. Shortly released, after he was ment attached to the covered crimes.” the Florida Jones, credits, 244, 250, legislature cancelled these and a Garner (2000) (citation 1362, 146 warrant Lynce. rearrest was issued for Id. L.Ed.2d 236 omitted). Lynce The quotation Court held that “the actual marks course of it unnecessary events makes Court has not articulated speculate about might hap what have precise a formula for determining whether pened,” and that the applica retroactive a Dep’t risk is “sufficient.” See Cal. of unquestionably tion “has disadvantaged Morales, 499, 509, Corrections v. 514 U.S. petitioner because it resulted in his rear 115 S.Ct. 131 L.Ed.2d 588 prolonged imprisonment.” rest and his Id. (“We previously have declined to articulate at 117 S.Ct. 891. As a result of single identifying leg- a ‘formula’ for those petitioner, this clear adverse effect on the changes islative that have a sufficient ef- the Court held that Florida’s actions were punishments fect on substantive crimes or Id; unconstitutional. see also Weaver to fall prohibition within the constitutional Graham, 24, 35-36, 450 U.S. 101 S.Ct. laws], ex and we have no [on (1981) (holding 67 L.Ed.2d 17 that Florida here.”). Despite occasion to do so fail- its the Ex Post Facto violated Clause when formula, proclaim particular ure to a the retroactively applied eliminating a statute Supreme consistently required Court has gain-time release credits because the elimi evidence, petitioners proffer actual rath- punish nation “makes more onerous the than speculation, regarding er mere the ment for crimes committed before its en application’s disadvantageous retroactive actment”). See, Morales, e.g., effect. (“The contrast, ques- 115 S.Ct. 1597 amendment In re Supreme [in the Court has only speculative creates the most fused to hold the retroactive of tion] possibility attenuated in producing the laws unconstitutional where prohibited increasing specula effect of the measure mates’ claims have been based on statute, it also reached Morales, in the for exam be inherent conjecture.

tion or following conclusion: retroactive challenged the the inmate ple, of a law that maintained terms not its own the rule does When hearing, but initial of his date risk, significant [inmate] a show parole board the the California granted demonstrate, by evidence drawn must between increase the interval discretion implementation practical rule’s from the to three year from one hearings exercising charged with agency that there determined if the board years discretion, applica- its retroactive in that the probability no reasonable was longer period in a result tion will in the suitable for mate would be the earlier incarceration than under at 514 U.S. period. interim rule. emphasized The Court 1362. Because whose only to inmates applied statute beyond had failed to ascertain lower courts “quite were release on chances of ap speculation whether retroactive mere remote,” the fact that the and it focused on Georgia rule a created plication of “only the most question created law in question, inmate significant risk for the possibility and attenuated speculative did held that the record the Gamer Court of increas producing prohibited effect that the state had support holding covered ing measure facto violation. Id. committed 1597. In crimes.” Id. 256-57, 120 S.Ct. 1362. inmate’s claim that there is response to the precedents, Court relevant way sig how “no determine principled provide perspective, at least a factual from enhanced confinement is nificant a risk of in this case. At one guidance with little us tolerated,” the Court stated to be involving Lynce and Weaver extreme are this ex accepted cases have never “[o]ur of punish increased risks near-certain Clause, Facto pansive view of the Ex Post ment, whereas Morales and Gamer are it here.” Id. and we will not endorse spectrum other which end conjecture beyond pure evidence

Without only regard provided speculation inmates punish sufficient risk increased case, analyzed risks. such ment, unwilling to hold that below, in the middle. In falls somewhere pa procedural change in California’s this tuitively, of new Ex Post Facto role laws violated that reduce the parole statutes level 250, Garner, at 120 See 529 U.S. Clause. might parole afforded the board discretion Morales as a case (classifying 1362 S.Ct. a risk of increased effectuate sufficient change to involving purely procedural the ultimate result de punishment, but laws). parole California’s actually parole the board pends upon how Regardless of the a similar exercises its discretion. Supreme Court considered however, circumstances, Gamer, the Su parole the factual scenario in where has made clear that in order retroactively applied preme Court Georgia in board necessary conduct the ex between for us to law that increased the interval we must determine whether inquiry, from three subsequent parole hearings evidence of a Dyer produced specific has years years serving for inmates eight punishment. increased risk of previously had been sufficient life sentences who See, Garner, 248, at 120 e.g., U.S. parole. 529 at denied that the Eleventh Cir (holding ac- Although the Gamer nothing on basing in its decision risk could cuit erred knowledged requisite that speculation punish provisions than of increased of the purely procedural. more as ment). Paroles, Dyer v. See Tenn. Bd. 2001 WL of * 401596, 2001). at 2 (Tenn.Ct.App. Apr.23, Dyer’s claims C. Addressing Dyer’s collectively, claims appellate state persuasive found

Dyer’s alleges first claim that the retro- trial holding court’s that “[t]he current application may/shall provi- active of the statutes length do not affect the of the a sufficient risk of sion created increased sentences, petitioner’s life do not change in punishment violation of the Ex Post application of sentence reduction cred provision nearly Facto Clause. This to parole eligibility its data and do not provision identical to the at effect eligibility parole affect offenses, consideration in of except time that any manner.” Dyer v. Tenn. Bd. Pa compelled 1974 version of the statute * roles, (Tenn.Ct. 2001 WL parole board to an inmate if two 2001) App. Apr.23, (quoting from met, Dyer v. conditions were whereas the 1998ver- Paroles, 86—III, Tenn. Bd. No. slip, sion allows the board discretion 99— (Tenn. 1999). op. at 3 Ct. Sept. Ch. parole even if the inmate meets the same reasoning Further the seriousness Compare two conditions. TenmCode Ann. provision “enumerates one reason § 40-3614 with TenmCode Ann. 40-28-117(a) (1998) elect, which may the Board in its § discre (containing essen- tion, deny parole,” the Tennessee Court of tially the language except same for “shall” held that Appeals application retroactive “may” the 1974 version and in the 1998 version). this “does not affect words, eligi Dyer In other claims bility date or denial of parole.” Dyer v. gives 1998 statute Paroles, Tenn Bd. 2001 WL discretion where once had none. 2001). (Tenn.Ct.App. Apr. *2 alleges, also in addition to the held, may/shall disparity, analy- The district court with little sis, that the provision— state court’s classification of seriousness posW.974 changes parallel “procedural statute with no 1974—con- to, contrary stituted an nature” was neither in- facto violation. See nor 40-35-503(b) (1998). of, Ann. volved an unreasonable Tenn.Code. clearly established federal He contends that he has no chance of law. See Bowlen, slip op. (quoting because he was at 5-6 from “espe- convicted of Paroles, cially Dyer v. Tenn Bd. support serious offenses.” In No. 99-86- this (Tenn. III, slip. proposition, Dyer op. Sept. notes that the Ch. Ct. pa- three 1999); Morales, see deny role board members who voted to also (holding him 115 S.Ct. 1597 1998 based their on the retroactive decision provision. procedural changes does not seriousness For this rea- Clause). son, implicate Ex Dyer alleges that the risk of Post Facto We increased respectfully disagree. not purely speculative attenuated. Although the of Ap Tennessee Court note at the peals Dyer’s

We outset the Tennes to failed address claims indi Appeals see Court of failed to vidually, enough address its decision bears of a Dyer’s individually. claims It post analysis did not cite resemblance to an ex facto so specific provisions challenged by Dyer require as to us to review the decision analyze their choosing instead under the deferential of AEDPA. lens We effect— rely to on trial court’s characterization will thus not reverse unless decision to, contrary clearly contrary Supreme or involved an unreason to established

was of, post precedent required peti- federal ex facto Court when it a able 445 F.3d at 854. The Filiaggi, law. See tioner to demonstrate with absolute cer- that a tainty, held Morales than Supreme probability, rather reasonable requires only facto claim post ex that the ineffective assistance of his coun- successful him). a prejudiced inmate demonstrate sel that an sufficient punishment. U.S. risk of increased Regarding provision, the seriousness 1597. Gamer further de held, analysis, state little determining the framework for fines altering the level of discretion to which the by instructing lower courts requisite risk parole board is entitled does not constitute to first consider the risk inherent an facto post Dyer violation. v. Tenn. then, al wording of the statute itself and Paroles, Bd. at *2. WL ternatively, explore to the evidence of the held, Supreme explicitly Court has howev practical implementation. statute’s 529 er, that discretion in considerations Although 1362. U.S. S.Ct. post does not insulate the state from ex factually Dyer’s distinguishable claims are Garner, facto violations. See 529 U.S. at Gamer, from those Morales and (“The 253, 120 presence S.Ct. 1362 of dis pronounced in rule of constitutional law displace protections cretion does proper remains the standard those cases ”). .... By the Ex Post Facto clause fail an ex by which to measure acknowledge to warning Gamer’s See, Morales, e.g., 514 U.S. at violation. discretion, by disregarding about Garner, 1597; S.Ct. proper demonstrating standard for an ex 255, 120 1362. pronounced facto violation as in Mor Gamer, ales and the state court a reached Appeals, The Tennessee Court contrary decision that is to federal law as however, inmate an required an show determined Court of the Dyer punishment. actual increase required United States. We are thus to Paroles, 86—III,slip, Tenn Bd. No. 99— novo, Magana, review claims de see 1999) (Tenn. Sept. op. at 3 Ch. Ct. 551, analyzing Dyer 263 F.3d at whether (“The change imposition is not of a [] proven has that a sufficient risk of in punishment or more serious than greater creased is inherent in the at the law time proscribed or, wording of the statutes themselves al offense.”). approach contrary This runs ternatively, that it prac results from their standard set forth in constitutional Garner, implementation. tical See it placed and Gamer because too Morales 255, 120 Dyer. on a Rather than re great burden prove that the retroactive quiring D. Reason for remand statutes a application of created punishment, risk of increased Because the record in this case sufficient mandate, Dyer prove court demanded that does not allow to fulfill the state us our we pun a more serious remand the case to actually he received the district court with so, doing the state court sub an evidentiary ishment. instructions conduct jected hearing exacting practical to more standard— on effects of the stat contrary clearly application. standard that is to the utes’ retroactive We do so requires established law as stated Morales because Gamer inmate to Magana, Gamer. 263 F.3d at 550 demonstrate a sufficient risk of increased Cf. (holding that the state court’s decision was that is either inherent on the

289 by ambiguous disadvantage or is evidenced some sort of ... face of the new statutes implementation. any but on whether such practical change the statutes’ alters the 254, Dyer, in definition of at 120 S.Ct. 1362. criminal conduct or increases 529 U.S. opinion, penalty by punisha has been unable to show the the which a crime is our ble.”) (citation wording quotation risk in the of the stat- requisite marks omit ted); utes themselves. Richardson Penn. Bd. Proba of (3rd Parole, tion and 423 F.3d 292 are unable to determine the effect We Cir.2005) (recognizing “the intuitive force may/shall provision the without evi of argument adjudication of the that under parole dence of how the board has actual stricter standards likely is more to lead to Garner, ly exercised its discretion. See result,” an adverse holding that (“Whether 120 S.Ct. 1362 required inmate was to demonstrate evi particular retroactive of a disadvantage). dence of actual change parole respects prohibi in law Gamer, legislation tion on ex often a In example, the Eleventh facto difficulty question particular Appeals when the Circuit Court of held that retroac discretion vested in a board is tak tive parole guideline the new account.”). Similarly, en into even when seemed “certain to ensure that num some the seriousness of the offense was but one ber of inmates find the length will of their Garner, discretionary factor for the board incarceration extended.” 529 U.S. (citation consider, might board have 120 quota S.Ct. 1362 omitted). determined that of double- tion Supreme offense marks The Court remanded, that holding murder was so serious his release reversed and “incompatible with the welfare of soci record before the of Appeals “[t]he ety.” See Tenn.Code Ann. 40-3614 contained little information bearing on the (1974). But, Dyer argues, by because the level of risk created in change law.” nature of his offenses under the 1974 ver 120 S.Ct. Without evi sion of the statute was but one factor dence of an actual disadvantage to the (or evaluated, among many general board inmate least information might light regarding operation sys have released him in of his re of the parole tem), progress prison. unwilling habilitative while See Court was (1974) (autho §Ann Ex Tenn.Code. 40-3614 hold Post Facto Clause was Id.; Morales, rizing many also 514 consider violated. see U.S. 508-09, (rejecting factors to determine if the inmate should at 1597 released). provision, proposition changes might The new in con that all trast, attenuated risk speculative, makes the seriousness crime “create some justify affecting in and of itself to actual prisoner’s sufficient term claim on parole. making denial bases his confinement more difficult persuasive early that fact. him to make a case for post facto release” constitute ex viola governing standard as announced in tions). Morales, however, “requires rigor a more analysis ous of the level of risk created The Third Circuit’s decision Richard son, Garner, change F.3d at demonstrates the law.” Morales, 1362; necessity performing see also evidence (“[T]he Richardson, “significant inquiry. U.S. at 506 n. 115 S.Ct. 1597 risk” argued inquiry focus of the ex is not on an inmate convicted legislative change produces whether a discre- parole increased the board’s in 1996 constituted have enacted

amendments tion, Dyer’s speculation claims rest on The Id. at 284. facto violation. an ex proof. rather than parole that the inmate demonstrated amendments retroac apply in fact did an to remand for evidentia- Our decision held that he was the court tively, but it support from ry hearing gains Gamer appli that the retroactive required to show self, that Supreme Court noted where the him. individually prejudiced cation to cure appeals are entitled the courts of 292-93. discovery. by ordering records insufficient Garner, 257, 120 court acknowl the Richardson

Although per not been (“Respondent claims he has argument intuitive force of edged “the discovery to make this mitted sufficient under stricter standards adjudication creat showing application [that result,” to an adverse likely more to lead punish of increased significant ed a risk “evidentiary requirement it held that the adequate discovery matter of ment]. honored.” Id. jurisprudence must be ....”). Appeals is one for Court distinguished Mickens- The court 292. (3d Cir. Vaughn, 321 F.3d however, Thomas v. colleague, dissenting Our 2003), case in an Third Circuit earlier flat-out reverse the district court’s would light habeas in panel granted which makes much of the decision. The dissent that the ret suggesting statistical evidence distinction “between situations where in guidelines ... revoca- roactive substantive criteria for hand, incarcera period of changed, creased the inmate’s tion are on the one words, actual without proce- tion. Id. other situations where the methods or that Richardson demonstrating criteria are applying evidence dures those incar subject risk of Dissenting Op. to an increased changed, on the other.” ceration, unwilling to hold Dyer’s the court was classifies com- The dissent challenging that retroactive one the substantive plaint as and, result, statute was unconstitutional. as a con- criteria for application of cludes that the retroactive Dyer’s opportunity pres- Given lack of Ex the seriousness violates the evidence, opin- are of the ent relevant we pa- Post Facto Clause because it “makes remedy is to remand proper ion that the depending role less available on the seri- court for an eviden- the case to the district part factor not ousness of the crime—a repeatedly con- tiary hearing. The state scheme.” Id. at 13. More- previous proffer failed to evi- tends that has over, the dissent contends that an eviden- disadvantage, we dence of an actual tiary hearing unnecessary where the unpersuasive consider- argument find this change criteria is substantive. was never afforded Id. at 12. pro- Without prove chance to otherwise. acknowledge language to access in vari- viding Dyer opportunity We retroac- cases lends credence pertaining data to the effect of the ous substantive-versus-procedural on dis- tive laws his Florida, (or Miller v. prison e.g., term the terms of others tinction. See own situated), 96 L.Ed.2d similarly claims will never U.S. his (1987) (“[N]o violation ultimately will speculation rise above —and merely advantage change fail. take occurs if the the law is attempts The state hand, a acknowledging procedural .... On the other quandary by alters a substantial might change in the law that though may/shall provision even post petitioner can even if the the had right been sentenced to seven facto seemingly procedural years, his sentence statute takes would have been re- form.”) (citation appeal. omit- viewable on quotation marks ted). law, 2446. But under the simply We nevertheless believe that new because the petitioner’s sentence was in characterizing Dyer’s complaint presump- as sub- the tive range, sentencing the provides in nature an insufficient court’s determi- stantive nation was unreviewable. Id. concluding for that he demon- Such evi- basis has dence of disadvantage was to sufficient post strated an ex facto violation. demonstrate an ex facto violation. In of the relied upon each cases the demonstrate, then, What these cases dissent for its conclusion that remand is that even considering when substantive unnecessary, Supreme pointed the changes parole provisions, the evidence, either on the face observable Court has relied on evidence of actual dis- showing or as applied, statute (or, Gamer, advantage as stated in a suffi- substantially petitioners were disad cient risk of punishment). increased As vantaged by the retroactive above, Dyer discussed has been denied the certainty laws. No such exists opportunity to show such risk either on the Court, Lindsey example, here. The practical face of the statute or in appli- its “regardless found an ex facto violation cation. length of the im actually the sentence

posed, since measure Yet another distinction between the so- prescribed by the later statute is more called present “substantive” cases and the than that of severe the earlier.” 301 U.S. case is the level of discretion involved. at (analyzing 57 S.Ct. 797 a scenario provisions Miller, at issue in Lindsey, sentencing changed which the new law virtually Weaver were couched in the maximum discretionary sentence from See, Miller, mandatory e.g., terms. Weaver, mandatory). In (“Nor the state ret U.S. 107 S.Ct. 2446 do the that, roactively applied a statute on its guidelines simply provide revised flexible face, gain-time eliminated credits. 450 ‘guideposts’ for use in the exercise of dis- U.S. at 101 S.Ct. 960. ”). After re fate, however, Dyer’s cretion .... de- statute, viewing the the Court held that pends entirely on the discretion exercised petitioner “disadvantaged by was parole board. opportunity reduced to shorten his time in dissenting colleague Our minimizes the prison simply through good conduct.” Id. effect of the board’s discretion in 33-34, 101 S.Ct. 960. case, present going far so as to com- The Miller pare Court reviewed the retroac- provision hypo- seriousness to a tive of a sentencing guideline provision removing thetical possibility that changed presumptive sentence for rape Dissenting convicts. (“[T]he petitioner’s Op. statutory offense from between provision years three-and-a-half and really four-and-a-half this case the hypotheti- [from differs range to a rape provision] only of five-and-a-half to seven cal possibility years. 482 S.Ct. 2446. the part exercise discretion on of the ”). years. Petitioner was sentenced to grant parole seven board to .... We believe Id. In holding petitioner that the had dem- mini- the distinction cannot be so violation, an ex post rape onstrated the mized. A convict could never be re- Miller Court focused on the effect of leased on hypotheti- the dissent’s statutory law, case, however, change. prior Under the if cal In scenario. we State, 1182, 1991 Dyer, III v. No. to the effect of the case. only speculate

can (Tenn.Crim.App. Apr.4, at *1 parole eligibil- on his WL provision seriousness 1991). board, espe- his death sentences were of the ity in the minds after the man- that the earlier commuted to life sentences cially considering discretionary datory penalty then in effect consider- death statute similarly required unconstitutional, a fortui- peti- declared id. the seriousness regarding ation Dyer’s standpoint, Ann. unre- TenmCode. tous event from offense. See tioner’s crimes and the (requiring parole lated to the nature of his § 40-3614 short, society” my In judgment the “welfare of of them. to consider State’s board determination). view, legal argu- sometimes the technical making its when ments obscure common sense. the case for an therefore remand We instructions evidentiary hearing —with ROGERS, Judge, dissenting. Circuit to a class of discovery be limited that I A remand is not respectfully and dissent. comparable convictions inmates with statutory change to warranted because the op- will have the sentences —so parole the substantive criteria for release acquire evidencing data portunity to violates, violate, Ex either or does not parole pro- practical implementation remand, regard Facto without to some we leave Post Clause question. visions in On not-yet-ascertained facts. to work out the set it to the district court comply with our in- details of how best to keyA distinction between this case and structions. Supreme Court’s decisions Morales makes and Gamer wooden III. CONCLUSION overly forth in the test set those cases above, forth For all of the reasons set formalistic. There is a difference between judgment of the district we VACATE the criteria situations where the substantive REMAND case for further court and (or credit) parole good-time revocation opinion. with this proceedings consistent hand, changed, on are the one and situa- procedures tions where the methods or INRICH, Judge, Circuit SUHRHE changed, criteria on the applying those are concurring. If for instance the law of a other. reasoning changes composition and of a I concur in the result state three, I it Judge opinion. separate- write board from ten members Gilman’s ly merely absurdity any out the of makes sense that ex facto chal- point postulating lenge supported by the Tennessee be evidence would, could, change actually significantly results in re- ever conclude hand, if incompatible is not duced rates. On the other “release society,” deny Ann. provision the welfare of Tenn Code state law is enacted to (1974); § good-time persons Tenn.Code Ann. 40- credit to convicted of a 40-8614 28-117(a) crime, (1998), or that his release would certain there is no need for an evidentiary hearing the seriousness of the substantive na- “depreciate —the change the defendant stands con- ture of the violates the Ex Post crime of which 40-35-503(b) every applied. §Ann. Facto is victed.” Tenn Code Clause time (1998). evidentiary no In was convicted the There is need for hear- County applied. Criminal Court of Hamilton of two to see how the (Indeed, rarely if Degree counts of Murder in the First and the crime were commit- ted, only person affected the statute sentenced death electrocution each it, challenging and an person could be the effective date.” The Miller Court flat out futile.) inquiry rejected empirical argument would that the defendant could not show that his actual sentence then, if not an There is real difference greater -than it would have been un one, airtight good-time between guideline. der the earlier statutory changes applying to methods of S.Ct. 2446.1 criteria, changes substantive and to the substantive criteria. The difference reject Court Morales did not cases, clearly them, reflected in the relevant these Supreme distinguished way did so in a that puts Dyer’s Court cases. cases where the state case on the other side of the changed good- the substantive criteria for distinction. Morales credit, timing involved the hearings, time Court found the Court said the issue was different. violations without the need for Morales, Dep’t See Cal. v. 514 U.S. changes statistical evidence that the of Corr. 499, 504-08, 1597, 115 S.Ct. 131 instance, L.Ed.2d longer caused sentences. For in (1995). 588 Gamer Graham, was similar to Mor 24, 33, v. 450 101 Weaver U.S. ales, and followed pur Morales without 960, (1981), 67 17 S.Ct. L.Ed.2d the Court porting change to its rationale. See Gar in “gain held the reduction time” that Jones, 244, 250-57, ner v. 529 U.S. 120 repealed had been available under a stat 1362, (2000). S.Ct. 146 L.Ed.2d 236 The abiding by prison ute for rules its “[o]n distinguished Morales Court Lindsey, sentence, lengthens face” the and held so Weaver, and Miller as In follows. Lind Indeed, any empirical without evidence. sey, “the measure of punishment pre rejected the explicitly argument by scribed the later statute” was more statutory on other provisions based where Morales, severe than that of the earlier. prisoner might a earn extra time 505, 514 at 115 (emphasis S.Ct. 1597 34-36, satisfying extra conditions. Id. at added). According Court, to the Morales analysis statutory, 101 S.Ct. 960. The “Weaver and Miller held that the Ex Post factual. Court relied on other Facto Clause forbids the States to enhance Lindsey cases that were similar. In punishment by altering the measure of 397, 401-02, Washington, 301 U.S. 57 substantive to used calculate the 797, (1937), S.Ct. 81 L.Ed. 1182 the Su ‘formula’ 505, applicable sentencing range.” Id. at preme without Court concluded benefit of added). 115 1597 (emphasis con empirical analysis plainly to “[i]t trast, serving and as the basis for distin disadvantage petitioners the substantial Weaver, Miller, guishing Lindsey, deprived opportunity to be of all to receive new law in Morales “had no effect on the give a sentence which would them free fixing prisoner’s standards for a initial custody dom from and control prior to the ‘eligibility’ parole, date of for or for deter expiration 15-year of the term.” In Mil mining ‘suitability’ his and set Florida, 423, 430, ler v. 482 U.S. 107 S.Ct. ting his release date.” (1987), 96 L.Ed.2d 351 the Court (citations omitted). S.Ct. 1597 empirical analysis without held that changes presumptive to Florida’s sentenc Rather than changing sentencing crimes, ing guidelines clearly “change[d] legal range applicable to covered consequences completed simply of acts its in [amendment ] before Morales “alters Indeed, that, change appears Court stated "[a]l- Miller here the issue to have little though procedural.” the distinction between substance and it could be about deemed elusive, Miller, procedure might prove sometimes S.Ct. 2446. er, the conclusion that fixing requires in and Miller to be followed”

the method identical sub- date under of the “seriousness” release Miller, supra, See standards. Ex Facto stantive violates the Post provision (contrasting ad- 107 S.Ct. reading fair Clause. Under a sentencing presumptive justment law, changed criteria substantive in “the method to be change range with way in a that makes changed are determining appropriate followed on the seri depending less available Florida, sentence”); also Dobbert v. see part factor not ousness of the crime—a 293-294, 432 U.S. Although provi previous scheme. change (contrasting L.Ed.2d 344 hardly distin sharp, sion is not as punishment” “quantum in the statutory provision re guishable from merely “altered the methods statute for, say, all moving possibility determining whether employed application of rape convicts. Retroactive imposed”). was to be penalty death undoubtedly such a would violate Morales, 514 U.S. Clause, the Ex Post Facto and the statuto Dobbert, a case relied 1597. The Court really only ry provision this case differs Morales, Ex explained that upon in of discre possibility the exercise “intended to secure Facto Clause was Post grant part tion on the of the board against arbi- rights personal substantial But the possibility nonetheless. legislation, and not trary oppressive necessarily sufficient such discretion is control remedies legislative limit the to save such a switch in substantive stan af- which do not procedure and modes of Weaver, 18, dards. 450 U.S. at 34 n. See Dobbert v. fect matters of substance.” Garner, 960; 101 see also Florida, 282, 293, 97 432 U.S. (discussing 120 S.Ct. 1362 the role (citations omitted). 53 L.Ed.2d 344 discretion). I would therefore reverse I would not evaluate the Accordingly, entry for the of a condi and writ remand provisions at issue this case under the a parole ap tioned on board consideration cases of Morales and changed-method plying regard the law without to the “seri Gamer, changed-substan- under the provision. ousness” Weaver, Lindsey, cases of and tive-criteria Miller. I contrary possibility note the of affirm independent on one of two different of the uphold

I would First, “may/ might argued that earlier of the Tennessee it be version rationales. no provision shall” because there is materi- although court in finding the state erred meaning al in the core change dis- violation, post no ex facto the state court granted cretion to the board. As decision was at least reasonable and there Rooney Harlan held in v. North Justice upheld fore should be under the deference Dakota, 319, 326, 196 49 by AEDPA. required Lopez See v. Wil (1905), where a “difference of L.Ed. 494 (6th Cir.2004) son, (up F.3d 355 939 material,” [statutory] phraseology is not holding applica as reasonable state court there is no ex facto violation.2 tion of federal law conflict with then- hand, judg existing precedent), Sixth Circuit applica On the other reasonable provided by Lindsey, grounds by Lopez tion of ment vacated on other the law Weav sion, Rooney approval any special was cited with in Weaver and not to circumstances Weaver, mitigate proposition proper may effect ...." for the that the its inquiry challenged provi- U.S. at 101 S.Ct. 960. "looks to the (6th Cir.2005) (en Wilson, 426 F.3d v. conviction and sentence? In a case involv- banc). view, however, my the state ing a procedural change, an empirical in- of retroactive upholding quiry can be made grant into rates before of the “seriousness” is an unrea and after change, where the numera- Weaver, Lindsey, sonable tors and denominators are fairly clear. Miller, at least under the modified Where there is a change substantive in the provided by AEDPA deference Maldona granting parole, however, criteria for it is (6th Wilson, do v. 416 F.3d Cir. just more difficult to define what is being 2005), Filiaggi Bagley, 445 F.3d measured. If pool the relevant prison- is (6th Cir.2006). 851, 854 ers who precluded are from parole by the rule, new substantive the risk of increased Second, might affirmance be warranted punishment going very high. If that, ground Respon- on the as stated in pool the relevant larger category some dent’s brief at when was convict- prisoners that includes who are precluded ed, parole persons was not available to parole by from rule, the new substantive years. convicted his crime for least 30 is not at all clear larger how broad that It argued could be that because at the time category should be. of the crime the quali- was not possibility fied of parole for the first alternative, In the the court could take years, provision, the “seriousness” com- testimony on the issue whether emergency legislation bined would paroled have been if the board had making earlier together available applied the criteria in effect at the time of gave Dyer generous more cri- substantive end, his crime. If that is the answer parole, teria for during least the first 30 then we have needlessly arrived years imprisonment. of his While this ar- impractical point where a federal court is gument may force, persuasive have some trying to divine agency what a state would the argument presented was not in these done, have rather than merely sending the terms In particular, the state. case to the state agency to do it. explained state has not pre-1985 how the statutory precluded parole scheme during Instead of creating problems, these years imprisonment. the first 30 perfectly there is a course that is respect- ful prerogatives, practical, of state While on balance affirmance war- consistent precedent: with ranted on either of grounds, these issue the writ and have the board make its should be noted that under either of these determination under substantive criteria arguments two for affirmance a remand no more applicable onerous than those would not be warranted ascertain addi- the time of crime. tional facts. Indeed, the factual inquiry on remand may

this puzzling aspects. case have if generally applied

What the board has rules, only

the new failed to do inso

Dyer’s case? If something hap- like that

pened, discovery how can to “a limited

class of inmates comparable convic-

tions and sentences”? Even if the board consistently applied

has the new rather scheme,

than comparable the old what is a

Case Details

Case Name: Joseph P. Dyer III v. James Bowlen, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 30, 2006

Citation: 465 F.3d 280

Docket Number: 04-5478

Court Abbreviation: 6th Cir.