465 F.3d 280 (6th Cir. 2006), 04-5478, Dyer v. Bowlen

Docket Nº:04-5478.
Citation:465 F.3d 280
Party Name:Joseph P. DYER III, Petitioner-Appellant, v. James BOWLEN, Warden, Respondent-Appellee.
Case Date:August 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 280

465 F.3d 280 (6th Cir. 2006)

Joseph P. DYER III, Petitioner-Appellant,

v.

James BOWLEN, Warden, Respondent-Appellee.

No. 04-5478.

United States Court of Appeals, Sixth Circuit.

August 30, 2006

Submitted: April 24, 2006

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga., No. 01-00392—R. Allan Edgar, District Judge.

COUNSEL

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ON BRIEF:

Angele M. Gregory, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,

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for Respondent.

Joseph P. Dyer III, Pikeville, Tennessee, pro se.

Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

In 1975, Joseph P. Dyer, III was convicted in a Tennessee state court on two counts of first-degree murder and on two counts of grand larceny. He was sentenced to death, but his sentence was commuted to life imprisonment because Tennessee's death penalty statute was declared unconstitutional while Dyer's direct appeal was pending. His convictions and sentence were affirmed on appeal.

When Dyer was granted his second parole hearing in 1998, the Tennessee parole board used the statutory parole standard in effect at the time of the hearing—rather than the standard in effect at the time of his offenses—to determine that Dyer was not eligible for parole. Dyer filed a petition for post conviction relief in the state-court system, claiming that the parole board members violated both the Ex Post Facto Clause of the United States Constitution and the Due Process Clause of the Fourteenth Amendment to the Constitution when they applied the parole standards enacted after his offenses. The Tennessee courts dismissed Dyer's claims.

Dyer, acting pro se, subsequently filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254, asserting the same grounds for relief. Reviewing the decision of the Tennessee Court of Appeals under the deferential AEDPA standard, the district court denied Dyer's petition. For the reasons set forth below, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

At Dyer's first parole hearing in 1993, the parole board denied his request for parole because of the seriousness of his offenses. Dyer was granted a second parole hearing in 1998, but the board again denied him parole on the same basis. Following the 1998 hearing, Dyer filed a petition in the Chancery Court of Davidson County for a writ of common law certiorari to review the actions of the parole board. In his petition, Dyer claimed that the parole board committed ex post facto and due process violations when it applied the current parole standard rather than the standard in effect at the time of his convictions.

The relevant parole standard in effect at the time of Dyer's convictions provided:

Tenn. Code Ann. § 40-3614 (1974): parole being a privilege and not a right, no prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board is of the opinion that there is reasonable probability that if such prisoner is released he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society. If the board shall so determine, such prisoner shall be allowed to go upon parole ....

(Emphasis added.)

In contrast, the relevant parole standard in effect at the time of Dyer's 1998 hearing and applied by the parole board provided:

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Tenn. Code Ann. § 40-28-117(a) (1998): parole being a privilege and not a right, no prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board is of the opinion that there is reasonable probability that such prisoner, if released, will live and remain at liberty without violating the law, and that the prisoner's release is not incompatible with the welfare of society. If the board so determines, such prisoner may be paroled ....

Tenn. Code Ann. § 40-35-503(b) (1998): release on parole is a privilege and not a right, and no inmate shall be granted parole if the board finds that:

(2) The release from custody at the time would depreciate the seriousness of the crime of which the defendant stands convicted or promote disrespect for the law.

(Emphasis added.) Dyer claimed in his petition that the application of "harsher, more severe" statutes at his 1998 parole hearing caused him to be denied parole, and that "[i]f the laws and rules which were in effect in 1974 had been used, the outcome of the parole hearing would have been different."

Rather than analyzing Dyer's claims based on the statutory changes, the Tennessee Court of Appeals treated Dyer's petition as if it primarily relied on Rule 1100-1-1-.06 of the Rules of the Tennessee Boards of Parole (the good-candidacy rule), an earlier parole rule that provided: "The Board operates under the presumption that each resident who is eligible for parole is a worthy candidate and thus the Board presumes that he will be released on parole when he is first eligible." Dyer v. Tenn. Bd. of Paroles, 2001 WL 401596, *1 (Tenn. Ct. App. Apr. 23, 2001) (unpublished) (quoting Tenn. Comp. R. & Regs. r. 1100-1-1.06 (superseded)). Once the Tennessee court focused its attention on the good-candidacy rule, it quickly determined that Dyer's claims were foreclosed by Kaylor v. Bradley, 912 S.W.2d 728, 733 (Tenn.Ct.App. 1995) (holding that the parole board's failure to apply the good-candidacy rule in effect at the time of the prisoner's offense was not an ex post facto violation). Turning to one of Dyer's other arguments—that the retroactive application of the new parole standard, particularly the seriousness provision, increased his punishment—the court held that "the [seriousness] section does not affect parole eligibility date or denial of parole, but instead enumerates one reason which the parole board may elect, in its discretion, to deny parole." Dyer, 2001 WL 401596, at *2.

Following this decision in the Tennessee Court of Appeals, Dyer filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. Dyer again argued that the parole board violated the Ex Post Facto and Due Process Clauses of the Constitution when it applied current parole statutes rather than the statute in effect at the time of his offenses. The district court granted the warden's motion for summary judgment, denied Dyer's cross-motion for summary judgment, and dismissed Dyer's petition. Dyer filed a timely notice of appeal. This court granted Dyer a certificate of appealability as to whether the parole board violated the Ex Post Facto Clause when it retroactively applied Tennessee Code §§ 40-28-117(a) (the may/shall provision) and 40-35-503(b) (the seriousness provision) in reaching its 1998 parole decision regarding Dyer.

II. ANALYSIS

A. Standard of review

In a habeas corpus appeal, we review a district court's legal conclusions de novo,

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but will not set aside its factual findings unless they are clearly erroneous. Lucas v. O Dea, 179 F.3d 412, 416 (6th Cir. 1999). The standard of review for state-court determinations, however, is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d). AEDPA provides that

[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id.

For the purposes of AEDPA, we review the last state court decision on the merits, which in this case is the decision of the Tennessee Court of Appeals. See Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. 2005). A state-court decision is considered contrary to federal law "if the state court arrives at a conclusion opposite to that reached by the [Supreme] Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When the state court issues a decision that is contrary to federal law, we review the merits of the petitioner's claim de novo. See Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001) (citing Williams, 529 U.S. at 396-98, 120 S.Ct. 1495); see also Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006) ("The [state] Supreme Court's decisional rule was contrary to clearly established federal law, therefore de novo review is appropriate.").

The application of federal law is unreasonable where "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. when assessing unreasonableness, "a federal habeas court may not issue the writ simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. Factual findings made by the state court, moreover, are presumed correct in the...

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