The opinion
MERRITT, Circuit Judge,
concurring.
I concur in Judge Cole’s opinion. In essence, we are simply following the Supreme Court’s ex post facto opinion in Garner v. Jones, 529 U.S. 244, 250 , 120 S.Ct. 1362 , 146 L.Ed.2d 236 (2000), holding that a prisoner must allege and then show that a new state law creates a substantial “risk” of increasing the time the prisoner must serve. The prisoner has clearly so alleged in this case in his complaint and in his objections to the magistrate’s repox-t. The District Coux-t exToneously dismissed the claim under Rule 12(b)(6). The prisoner should now have an opportunity to prove his claim in accordance with standard trial procedures.