Joseph P. Dyer III v. James Bowlen, Warden

ROGERS, Circuit Judge,

dissenting.

I respectfully dissent. A remand is not warranted because the statutory change to the substantive criteria for parole release either violates, or does not violate, the Ex Post Facto Clause without regard to some set of not-yet-ascertained facts.

A key distinction between this case and the Supreme Court’s decisions in Morales and Gamer makes wooden application of the test set forth in those cases overly formalistic. There is a difference between situations where the substantive criteria for parole (or good-time credit) revocation are changed, on the one hand, and situations where the methods or procedures for applying those criteria are changed, on the other. If for instance the parole law of a state changes the composition of a parole board from ten members to three, it makes sense that any ex post facto challenge be supported by evidence that the change actually results in significantly reduced parole rates. On the other hand, if a state law provision is enacted to deny good-time credit to persons convicted of a certain crime, there is no need for an evidentiary hearing — the substantive nature of the change violates the Ex Post Facto Clause every time it is applied. There is no need for an evidentiary hearing to see how the provision is applied. (Indeed, if the crime were rarely committed, the only person affected by the statute *293 could be the person challenging it, and an empirical inquiry would be futile.)

There is a real difference then, if not an airtight one, between parole or good-time statutory changes to methods of applying substantive criteria, and changes to the substantive criteria. The difference is clearly reflected in the relevant Supreme Court cases. In cases where the state changed the substantive criteria for good-time credit, the Supreme Court found ex post facto violations without the need for statistical evidence that the changes caused longer sentences. For instance, in Weaver v. Graham, 450 U.S. 24, 33 , 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981), the Court held that the reduction in “gain time” that had been available under a repealed statute for abiding by prison rules “[o]n its face” lengthens the sentence, and held so without any empirical evidence. Indeed, the Court explicitly rejected an argument based on other statutory provisions whereby a prisoner might earn extra time by satisfying extra conditions. Id. at 34-36 , 101 S.Ct. 960 . The analysis was statutory, not factual. The Court relied on other cases that were similar. In Lindsey v. Washington, 301 U.S. 397, 401-02 , 57 S.Ct. 797 , 81 L.Ed. 1182 (1937), the Supreme Court concluded without benefit of empirical analysis that “[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” In Miller v. Florida, 482 U.S. 423, 430 , 107 S.Ct. 2446 , 96 L.Ed.2d 351 (1987), the Court without empirical analysis held that changes to Florida’s presumptive sentencing guidelines clearly “change[d] the legal consequences of acts completed before its effective date.” The Miller Court flat out rejected the argument that the defendant could not show that his actual sentence was greater -than it would have been under the earlier guideline. Id. at 432 , 107 S.Ct. 2446 . 1

The Court in Morales did not reject these cases, but distinguished them, and did so in a way that puts Dyer’s case on the other side of the distinction. Morales involved the timing of parole hearings, and the Court said the issue was different. See Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504-08 , 115 S.Ct. 1597 , 131 L.Ed.2d 588 (1995). Gamer was similar to Morales , and followed Morales without purporting to change its rationale. See Garner v. Jones, 529 U.S. 244, 250-57 , 120 S.Ct. 1362 , 146 L.Ed.2d 236 (2000). The Morales Court distinguished Lindsey, Weaver, and Miller as follows. In Lindsey , “the measure of punishment prescribed by the later statute” was more severe than that of the earlier. Morales, 514 U.S. at 505 , 115 S.Ct. 1597 (emphasis added). According to the Morales Court, “Weaver and Miller held that the Ex Post Facto Clause forbids the States to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.” Id. at 505 , 115 S.Ct. 1597 (emphasis added). In contrast, and serving as the basis for distinguishing Lindsey, Weaver, and Miller , the new law in Morales “had no effect on the standards for fixing a prisoner’s initial date of ‘eligibility’ for parole, or for determining his ‘suitability’ for parole and setting his release date.” Id. at 507 , 115 S.Ct. 1597 (citations omitted).

Rather than changing the sentencing range applicable to covered crimes, the [amendment in Morales ] simply “alters *294 the method to be followed” in fixing a parole release date under identical substantive standards. See Miller, supra, at 433 , 107 S.Ct. 2446 (contrasting adjustment to presumptive sentencing range with change in “the method to be followed in determining the appropriate sentence”); see also Dobbert v. Florida, 432 U.S. 282, 293-294 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977) (contrasting change in the “quantum of punishment” with statute that merely “altered the methods employed in determining whether the death penalty was to be imposed”).

Morales, 514 U.S. at 507-08 , 115 S.Ct. 1597 . The Court in Dobbert , a case relied upon in Morales , explained that the Ex Post Facto Clause was “intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Dobbert v. Florida, 432 U.S. 282, 293 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977) (citations omitted).

Accordingly, I would not evaluate the provisions at issue in this case under the changed-method cases of Morales and Gamer, but under the changed-substantive-criteria cases of Lindsey, Weaver, and Miller .

I would uphold the application of the earlier version of the Tennessee “may/ shall” provision because there is no material change in the core meaning of the discretion granted to the parole board. As Justice Harlan held in Rooney v. North Dakota, 196 U.S. 319, 326 , 25 S.Ct. 264 , 49 L.Ed. 494 (1905), where a “difference of [statutory] phraseology is not material,” there is no ex post facto violation. 2

On the other hand, a reasonable application of the law provided by Lindsey, Weaver, and Miller requires the conclusion that retroactive application of the “seriousness” provision violates the Ex Post Facto Clause. Under a fair reading of the changed law, the substantive criteria for parole are changed in a way that makes parole less available depending on the seriousness of the crime — a factor not part of the previous scheme. Although the provision is not as sharp, it is hardly distinguishable from a statutory provision removing the possibility of parole for, say, all rape convicts. Retroactive application of such a provision would undoubtedly violate the Ex Post Facto Clause, and the statutory provision in this case really differs only in the possibility of the exercise of discretion on the part of the board to grant parole nonetheless. But the possibility of such discretion is not necessarily sufficient to save such a switch in substantive standards. See Weaver, 450 U.S. at 34 n. 18, 101 S.Ct. 960 ; see also Garner, 529 U.S. at 253-54 , 120 S.Ct. 1362 (discussing the role of discretion). I would therefore reverse and remand for the entry of a writ conditioned on a parole board consideration applying the law without regard to the “seriousness” provision.

I note the contrary possibility of affirming on one of two different independent rationales. First, it might be argued that although the state court erred in finding no ex post facto violation, the state court decision was at least reasonable and therefore should be upheld under the deference required by AEDPA. See Lopez v. Wilson, 355 F.3d 931, 939 (6th Cir.2004) (upholding as reasonable state court application of federal law in conflict with then-existing Sixth Circuit precedent), judgment vacated on other grounds by Lopez *295 v. Wilson, 426 F.3d 339 (6th Cir.2005) (en banc). In my view, however, the state court upholding of retroactive application of the “seriousness” provision is an unreasonable application of Lindsey, Weaver, and Miller , at least under the modified AEDPA deference provided by Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005), and Filiaggi v. Bagley, 445 F.3d 851, 854 (6th Cir.2006).

Second, affirmance might be warranted on the ground that, as stated in Respondent’s brief at 18, when Dyer was convicted, parole was not available to persons convicted of his crime for at least 30 years. It could be argued that because at the time of the crime the punishment was not qualified by the possibility of parole for the first 30 years, the “seriousness” provision, combined with 1985 emergency legislation making earlier parole available together gave Dyer more generous substantive criteria for parole, at least during the first 30 years of his imprisonment. While this argument may have some persuasive force, the argument was not presented in these terms by the state. In particular, the state has not explained how the pre-1985 statutory scheme precluded parole during the first 30 years of imprisonment.

While on balance affirmance is not warranted on either of these grounds, it should be noted that under either of these two arguments for affirmance a remand would not be warranted to ascertain additional facts.

Indeed, the factual inquiry on remand in this case may have puzzling aspects. What if the board has generally applied the new rules, and only failed to do so in Dyer’s case? If something like that happened, how can discovery be limited to “a class of inmates with comparable convictions and sentences”? Even if the board has consistently applied the new rather than the old scheme, what is a comparable conviction and sentence? In a case involving a procedural change, an empirical inquiry can be made into grant rates before and after the change, where the numerators and denominators are fairly clear. Where there is a substantive change in the criteria for granting parole, however, it is more difficult to define just what is being measured. If the relevant pool is prisoners who are precluded from parole by the new substantive rule, the risk of increased punishment is going to be very high. If the relevant pool is some larger category that includes prisoners who are precluded from parole by the new substantive rule, it is not at all clear how broad that larger category should be.

In the alternative, the court could take testimony on the issue of whether Dyer would have been paroled if the board had applied the criteria in effect at the time of his crime. If that is the answer in the end, then we have arrived at the needlessly impractical point where a federal court is trying to divine what a state agency would have done, rather than merely sending the case to the state agency to do it.

Instead of creating these problems, there is a course that is perfectly respectful of state prerogatives, practical, and consistent with Supreme Court precedent: issue the writ and have the board make its determination under substantive criteria no more onerous than those applicable at the time of Dyer’s crime.

. Indeed, the Miller Court stated that, "[a]l-though the distinction between substance and procedure might sometimes prove elusive, here the change at issue appears to have little about it that could be deemed procedural.” Miller, 482 U.S. at 433 , 107 S.Ct. 2446 .

. Rooney was cited with approval in Weaver for the proposition that the proper ex post facto inquiry "looks to the challenged provision, and not to any special circumstances that may mitigate its effect ...." Weaver, 450 U.S. at 33 , 101 S.Ct. 960 .