                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0992n.06

                                            No. 10-5137

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                     Sep 07, 2012
JOSEPH P. DYER,                                           )                   DEBORAH S. HUNT, Clerk
                                                          )
          Petitioner-Appellant,                           )
                                                          )
v.                                                        )    ON APPEAL FROM THE
                                                          )    UNITED STATES DISTRICT
JAMES MORROW, Warden,                                     )    COURT FOR THE EASTERN
                                                          )    DISTRICT OF TENNESSEE
          Respondent-Appellee.                            )




Before:          BOGGS and GIBBONS, Circuit Judges; and RUSSELL, District Judge.*

          BOGGS, Circuit Judge. Over the last decade, Dyer, a Tennessee prisoner, has challenged

the state’s denial of parole for his 1975 murder conviction, arguing that it violated the Ex Post Facto

Clause of the Constitution. The district court, perhaps breathing a sigh of relief in granting

respondent’s motion for summary judgment, declared that “[t]his case has a long and tortured past.

The time has now come to put it to rest.” Unfortunately, rather than putting this case to rest, this

court must now resurrect it, in order to give the Tennessee state courts an opportunity to determine

in the first instance whether Dyer’s 2009 parole hearing was conducted in accordance with the parole

standards in effect at the time of his conviction in 1975—instead of the present-day standards—and

thus complied with the Ex Post Facto Clause of the Constitution.



          *
       The Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
No. 10-5137
Dyer v. Morrow

                                                    I

        The procedural posture of this case is indeed long and tortured. In 1975, Dyer was convicted

of two counts of first-degree murder and two counts of grand larceny and was sentenced to death.

Tennessee’s death-penalty statute was declared unconstitutional while Dyer’s appeal was pending,

and his sentence was commuted to life imprisonment. In 1993, the parole board denied Dyer’s

request for parole due to the seriousness of his offense. In 1998, Dyer was again denied parole on

the same basis. At both hearings, the parole boards relied on Tenn. Code Ann. §§ 40-35-503(b)1 and

40-28-117(a),2 both enacted after Dyer’s conviction. The standard for granting parole under these

statutes differed from Tenn. Code Ann. § 40-3614,3 which was in effect at the time of Dyer’s


        1
          Tenn. Code Ann. § 40-35-503(b) (1998) states: “Release on parole is a privilege and not
a right, and no inmate convicted shall be granted parole if the board finds that: (1) There is a
substantial risk that the defendant will not conform to the conditions of the release program; (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; (3) The release from custody at the
time would have a substantially adverse effect on institutional discipline; or (4) The defendant's
continued correctional treatment, medical care or vocational or other training in the institution will
substantially enhance the defendant's capacity to lead a law-abiding life when given release status
at a later time.”
        2
          Tenn. Code Ann. § 40-28-117(a) (1998) states: “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 . . . .”
        3
          Tenn. Code Ann. § 40-3614 (1974) states: “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

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conviction in 1975. For simplicity’s sake, we refer to the statute in effect in 1975 as the “earlier

standard” and the statutes in effect in 1998 as the “later standard.”

         There are two primary differences between the earlier standard and the later standard. First,

the later standard added an additional ground on which parole could be denied: “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.” Tenn. Code Ann. § 40-35-503(b) (1998). The earlier

standard did not include consideration of whether parole would depreciate of the seriousness of the

crime.

         Second, the earlier standard was mandatory and required that a prisoner “shall be allowed

to go upon parole” if the parole board determined that a reasonable probability existed that he could

“live and remain at liberty without violating the law” and that his release “is not incompatible with

the welfare of society.” Tenn. Code Ann. § 40-3614. The later standard changed the mandatory

“shall” to a permissive “may,” stating that a prisoner who could “live and remain at liberty without

violating the law, and [whose] release is not incompatible with the welfare of society . . . may be

paroled.” Tenn. Code Ann. § 40-28-117(a) (1998) (emphasis added).

         After the denial of parole in 1998 based on the later standard, Dyer appealed. First, on

January 11, 1999, he filed a petition for certiorari in the Davidson County Chancery Court. Dyer

asserted that “in considering Petitioner for parole, members of the Tennessee Board of Probation and

Parole violated the Ex Post Facto clause of State and Federal Constitutions and also violated due


prisoner shall be allowed to go upon parole . . . .” (emphasis added).


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process when they retrospectively [sic] applied new, more restrictive laws in considering petitioner

for parole, rather than the more lenient laws in effect at the time of his crimes; and the use of a 1982

law to bar his parole release.” Ibid. No evidentiary hearing was held. The court granted judgment

for respondents on September 20, 1999. Dyer appealed that judgment to the Tennessee Court of

Appeals, and the judgment was affirmed. In 2001, the Tennessee Supreme Court denied permission

to appeal.

        On October 9, 2001, Dyer filed a federal habeas petition challenging the “retrospective

application of TCA 40-35-503 . . . at his 1998 parole hearing,” arguing that the “application of this

statute at petitioner’s parole hearing violated the ex post facto prohibitions of both the United States

and Tennessee Constitution.” The district court dismissed the petition.

        On appeal, this court disagreed and reviewed the state court’s opinion de novo to determine

“whether Dyer has proven that a sufficient risk of increased punishment is inherent in the wording

of the statutes themselves or, alternatively, that it results from their practical implementation.” Dyer

v. Bowlen, 465 F.3d 280 (6th Cir. 2006). This court was unable to answer that question with the

record before it, so it remanded “the case to the district court with instructions to conduct an

evidentiary hearing on the practical effects of the statutes’ retroactive application.” Id. at 288.

Specifically, we stated: “Given Dyer’s lack of opportunity to present relevant evidence, we are of

the opinion that the proper remedy is to remand the case to the district court for an evidentiary

hearing.” Id. at 290. The import of the remand was to give Dyer “the opportunity to acquire data

evidencing the practical implementation of the parole provisions in question.” Id. at 292. We left

“it to the district court to work out the details of how best to comply with our instructions.” Ibid.

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       On remand, appointed counsel, along with the State of Tennessee, “devoted considerable

time and effort to obtaining all available Tennessee parole records.” The district court found that

“it became manifestly evident that the State simply did not have records from which Dyer can

demonstrate what effect, if any, the new standard has had on the granting or denying of parole.” On

March 27, 2008, the state held another parole hearing, purporting to comply with the later standards.

On November 7, 2008, the state filed a motion to dismiss, arguing that Dyer’s petition was moot,

as the March 7, 2008, parole hearing was “conducted under the standards in place at the time of his

conviction,” and that he thus had received “the relief he requested—a parole hearing under the

standard in place at the time of his conviction.” Dyer countered that the hearing was a “‘sham

hearing’ designed to” moot and dismiss the case. Appellant Br. at 22. However, the district court

was unable to determine from the record “whether the old parole standard was used at [the March

7, 2008,] hearing.”

       Trapped between the Scylla of this court’s mandate and the Charybdis of the inadequate

record, the district court sought to ensure that Dyer received a parole hearing that comported with

the Constitution. On March 31, 2009, the district court, exasperated in its efforts to comply with this

court’s mandate, effectively threw its hands in the air:

       After herculean efforts by Dyer’s appointed counsel, as well as much time and effort
       expended by the State of Tennessee, it is now manifestly evident that Mr. Dyer will
       not be able to make the showing that is the purpose of the remand. The State simply
       does not have records from which Dyer could demonstrate what effect, if any, the
       new standard has had on the granting or denial of parole. Thus, as a practical matter,
       it is impossible for this Court to comply with the instructions of the Court of Appeals
       to conduct an evidentiary hearing that could reach any meaningful conclusion.



                                                 -5-
No. 10-5137
Dyer v. Morrow

       Where do we go from here? It seems that the only means available to insure that Dyer
       has not been treated less favorably under the new parole standard is to direct that the
       State parole board conduct another parole hearing for Dyer using the standard that
       was in effect at the time of Dyer’s crimes. This hearing must be transcribed by a court
       reporter; and an attorney from the State Attorney General’s Office must be present
       to insure that the old standard is utilized. This remedy was suggested in the dissent
       to the Court of Appeals opinion. (See 465 F.3d at 295.)4

       On April 1, 2009, after ordering Tennessee to hold another parole hearing , the district court

denied the motion to dismiss in a one-paragraph order that referred to the court’s memorandum but

made no mention of any potential mootness issues. On June 25, 2009, the parole board held a new

hearing. The parole board denied Dyer’s request. The chairman closed by saying he would see Dyer

again in 2011. The chairman noted that Dyer has “a limited right to file an appeal.”5 On October

19, 2009, Tennessee filed a motion for summary judgment, arguing that “the Board [gave] Dyer a

supplemental hearing using the standards in place at the time of Dyer’s conviction.”

       On January 13, 2010, the district court granted Tennessee’s motion for summary judgment

and denied Dyer’s petition for a writ of habeas corpus. The court noted that the “only means

available to insure that Dyer has not been treated less favorably under the new parole standard was

to direct the Board to conduct another parole hearing for Dyer using the standard that was in effect


       4
          In a subsequent memorandum, the district court similarly noted that “it became manifestly
evident that the State simply does not have records from which Dyer can demonstrate what effect,
if any, the new standard has had on the granting or denying of parole. Thus, as a practical matter, it
is not possible for this Court to conduct a meaningful evidentiary hearing in accordance with the
instructions from the Court of Appeals.”
       5
          The record does not indicate if Dyer ever appealed the 2009 parole hearing through the state
courts, as he had done initially in 1999 following the earlier parole hearing. Whether any relevant
state statutes of limitations were tolled during the pendency of these federal proceedings is discussed
in Part V.

                                                 -6-
No. 10-5137
Dyer v. Morrow

at the time of Dyer’s conviction.” The district court found that the only question at issue was

“whether the June 25, 2009, parole hearing was indeed conducted in accordance with the standard

that was in effect at the time of Dyer’s convictions.” The district court answered this question in the

affirmative: “There is now no question about what was said and done at the hearing.” After

reviewing the transcript of the proceeding, the district court found that “Dyer has now received a

hearing under the statutory standard that existed when he committed his crimes and was convicted.”

The court made no mention of any issues of mootness and did not discuss the appropriate standard

of review for a federal court sitting in habeas under AEDPA.

        Dyer appealed the district court’s grant of respondent’s motion for summary judgment and

the dismissal of the writ of habeas corpus, arguing that the decision in the 2009 parole hearing was

not in fact based on the earlier standard.

                                                  II

        There is a fundamental structural problem with the posture of the case—which neither the

parties nor the district court raised—that prevents this court from considering the merits of the

appeal. Dyer’s initial petition for a writ of habeas corpus challenged the 1999 parole hearing as a

violation of the Ex Post Facto clause. The district court dismissed Dyer’s initial petition after

considering, de novo, the 2009 parole hearing that the court had ordered, without the benefit of any

state court consideration. It is undisputed that no state court has ever looked at the parole transcript

to determine whether it was conducted in accordance with the older standards.

        This court’s prior recitation of the proper standard of review under AEDPA is the law of the

case:

                                                 -7-
No. 10-5137
Dyer v. Morrow

       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 (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); 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. Factual findings made by the
       state court, moreover, are presumed correct in the absence of clear and convincing
       evidence to the contrary. 28 U.S.C. § 2254(e)(1).


Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006). In this case, there was no “last state court

decision on the merits” with respect to the 2009 parole hearing. The proceedings of the parole board

do not constitute a state court decision on the merits. “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.” Taylor, 529 U.S. at 411. A federal court sitting in habeas certainly cannot exercise

its “independent judgment” of whether a parole-board decision “applied clearly established federal

law erroneously or incorrectly.”



                                                -8-
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        Thus, all subsequent proceedings after the June 2009 parole hearing could not properly be

before the district court until the issues were exhausted in state courts, whose decisions could then

be assessed under AEDPA. Likewise, these issues are not properly before this court.

        Petitioner argues that there are other potential defects in the 2009 parole hearing, such as the

fact that absent members did not meet face-to-face with Dyer and were not informed of the

appropriate standard. Petitioner also argues that the 2009 hearing was a “sham” because board

members merely paid lip-service to the older standard.6 These allegations, and any other state

mootness issues,7 cannot be answered on this appeal and should be considered in the first instance

by a state court.

        Dyer exhausted all remedies in the state courts following the 1998 parole hearing prior to

seeking collateral review from a federal court. He did not do so here for the 2009 parole hearing,

and thus the district court should not have entertained his attack on the parole board’s proceedings.




        6
            The district court denied petitioner’s motion for sanctions based on allegations of bad faith.
        7
          Biennially scheduled parole hearings might outpace the speed at which litigation regarding
a prior hearing could be fully exhausted through the state and federal systems. Strictly speaking, if
a state holds a second parole hearing in order to remedy an alleged defect in the first parole hearing,
the petition regarding the first hearing is moot. However, mootness may be defeated in such cases,
as any reoccurring defects in these hearings could be “capable of repetition yet evading review.” Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983); see also Spencer v. Kemna, 523 U.S. 1, 17 (1998)
(holding that the exception applies where “(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.”); Padilla v. Hanft, 547 U.S. 1062 (2006)
(Ginsburg, J., statement in dissent of denial of certiorari) (noting that the doctrine of “capable of
repetition, yet evading review” applies in the habeas context).

                                                    -9-
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                                                  III

        Perhaps the least-worst course of action in this type of situation—and what the district court

did, in essence—would be to grant the writ conditionally unless a new parole hearing was held in

accordance with the correct standards.8 Otherwise, the writ would be granted, and Dyer would be

released—really, the court’s only possible remedy under habeas.9 Once the parole hearing was held,

the writ would be dismissed, and the court’s supervisory powers under AEDPA would cease,

permitting the state courts to consider the new hearing de novo. This is roughly what Judge Rogers



       8
          See Wilkinson v. Dotson, 544 U.S. 74, 89 (2005) (Kennedy, J., dissenting) (“But the
common practice of granting a conditional writ—ordering that a State release the prisoner or else
correct the constitutional error through a new hearing—already allows a habeas court to compel the
type of relief Justice SCALIA supposes to be unavailable.”). But cf. id. at 86–87 (Scalia, J.,
concurring) (“The dissent suggests that because a habeas court may issue a conditional writ ordering
a prisoner released unless the State conducts a new sentencing proceeding, the court may also issue
a conditional writ ordering release absent a new parole proceeding. . . . By contrast, the validly
sentenced prisoner who shows only that the State made a procedural error in denying discretionary
parole has not established a right to release, and so cannot obtain habeas relief—conditional or
otherwise. Conditional writs enable habeas courts to give States time to replace an invalid judgment
with a valid one, and the consequence when they fail to do so is always release. Conditional writs
are not an all-purpose weapon with which federal habeas courts can extort from the respondent
custodian forms of relief short of release, whether a new parole hearing or a new mattress in the
applicant’s cell.”).
       9
          See Dotson, 544 U.S. at 86 (Scalia, J., concurring) (“It is one thing to say that permissible
habeas relief, as our cases interpret the statute, includes ordering a ‘quantum change in the level of
custody,’ Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (Posner, J.), such as release from
incarceration to parole. It is quite another to say that the habeas statute authorizes federal courts to
order relief that neither terminates custody, accelerates the future date of release from custody, nor
reduces the level of custody. That is what is sought here: the mandating of a new parole hearing that
may or may not result in release, prescription of the composition of the hearing panel, and
specification of the procedures to be followed. A holding that this sort of judicial immersion in the
administration of discretionary parole lies at the ‘core of habeas’ would utterly sever the writ from
its common-law roots.”).

                                                 - 10 -
No. 10-5137
Dyer v. Morrow

suggested in his dissent and essentially what the district court did.10 After the new parole hearing

was held, the district court inspected the transcript to determine whether, on its face, it was compliant

with the older standards. The district court found that it was. It appears this initial facial inspection

was completed, and because the district court was satisfied that the older standards were adhered to,

it dismissed the writ.

                                                   IV

        This case also raises the question of what the correct course of conduct in this situation would

be in light of Cullen v. Pinholster, 131 S. Ct. 1388 (2011). Under Cullen, district courts are

prohibited from holding evidentiary hearings to supplement the record on habeas:

        We now hold that review under §2254(d)(1) is limited to the record that was before
        the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in
        the past tense, to a state-court adjudication that “resulted in” a decision that was
        contrary to, or “involved” an unreasonable application of, established law. This
        backward looking language requires an examination of the state court decision at the
        time it was made. It follows that the record under review is limited to the record in
        existence at that same time i.e., the record before the state court.


Id. at 1399. In 2006, this court, prior to Cullen, directed the district court to hold an evidentiary

hearing. Cullen would seem to foreclose such an order.

        In Cullen, there was some dispute between the majority and the dissent about what would

happen if a new claim, i.e., one not argued on the merits below, such as newly-discovered



        10
          Dyer, 465 F.3d at 295 (Rogers, J., dissenting) (“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.”).

                                                 - 11 -
No. 10-5137
Dyer v. Morrow

exculpatory evidence, were to arise.11 As in this case, when there are no records to establish what

transpired at a parole hearing and the state court did not consider those matters in the first instance,

the circumstances may warrant a new evidentiary hearing as to what happened at the original parole

hearing. However, a new evidentiary hearing does not inexorably lead to the court’s mandating a

new parole hearing. Rather than holding an evidentiary hearing to gather existing evidence, a new

parole hearing has the effect of generating new evidence—namely, the transcript, which the judge

ordered to be created. Perhaps future cases may present a better opportunity to explore the tension

in Cullen as applied to a case where evidence cannot be located or does not exist. Due to the unique

procedural posture of this case, however, now is not such a time.

                                                   V

        With respect to tolling and statutes of limitations, this case is in an odd spot. The parole

hearing in question was held in 2009. The record does not indicate whether Dyer appealed the denial

through the state court system, as he did his parole hearing in 1999. Why would he, as the district

court was considering it as a matter of first impression? Thus, the question remains, following

dismissal of the writ, can Dyer now timely appeal the 2009 parole hearing?



       11
          Compare Cullen, 131 S. Ct. at 1401 n.10 (“Though we do not decide where to draw the
line between new claims and claims adjudicated on the merits, see n. 11, infra, Justice Sotomayor’s
hypothetical involving new evidence of withheld exculpatory witness statements, see post, at
1417-1418, may well present a new claim.”), with id. at 1417 (Sotomayor, J., dissenting) (“The
majority charts a third, novel course that, so far as I am aware, no court of appeals has adopted: §
2254(d)(1) continues to apply when a petitioner has additional evidence that he was unable to present
to the state court, but the district court cannot consider that evidence in deciding whether the
petitioner has satisfied § 2254(d)(1). The problem with this approach is its potential to bar federal
habeas relief for diligent habeas petitioners who cannot present new evidence to a state court.”).

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        Generally, federal courts can toll federal statutes of limitations during the pendency of

state-court proceedings. Evans v. Chavis, 546 U.S. 189, 197 (2006) (holding that properly filed

application for state-court discretionary review tolls AEDPA limitations period). However, it does

not work the other way around. A federal court cannot toll state statutes of limitations during federal

habeas proceedings. This is usually not an issue, as most petitioners only receive federal habeas

review after a trip through the state-court system during which, presumptively, all claims filed were

timely (if they were not, petitioner would need to excuse any such procedural defaults). Here, the

district court considered the merits while the state statute of limitations ticked away. This court

cannot opine on whether, under Tennessee law, any relevant statutes of limitations following Dyer’s

2009 parole hearing were tolled during the pendency of these federal proceedings.

        However, after exhausting state remedies with respect to the 2009 parole hearing, Dyer could

file a petition for habeas corpus in federal court. As Justice Breyer noted in his opinion, concurring

in part, dissenting in part, in Cullen:

        There is no role in (d) analysis for a habeas petitioner to introduce evidence that was
        not first presented to the state courts. But that does not mean that Pinholster is
        without recourse to present new evidence. He can always return to state court
        presenting new evidence not previously presented. If the state court again denies
        relief, he might be able to return to federal court to make claims related to the latest
        rejection, subject to AEDPA’s limitations on successive petitions. See § 2244.


Cullen, 131 S. Ct. at 1413–14. If the state courts deny Dyer relief, asserting that the statutes of

limitations have run, “he might be able to return to federal court to make claims related to the latest

rejection, subject to AEDPA’s limitations on successive petitions.” Ibid.



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                                              VI

      Dyer’s petition for a writ of habeas corpus should be dismissed with prejudice.




                                            - 14 -
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        JULIA SMITH GIBBONS, Circuit Judge, concurring in the judgment. The majority

opinion reaches the correct result: affirming the district court’s dismissal of Dyer’s habeas petition.

I write separately, however, and concur only in the judgment because conceptually the case seems

relatively straightforward to me, and I am not in agreement with all of the majority’s reasoning.

        A district court that grants habeas relief to a state prisoner has only two options: issue the

writ unconditionally or issue the writ conditionally. 39 Am. Jur. 2d Habeas Corpus § 5 (updated

2012) (“[T]he only remedy which can be granted on a petition for writ of habeas corpus is release

from custody, whether absolute or conditional.”); see Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.

2006) (“[T]he sole distinction between a conditional grant and an absolute grant of the writ of habeas

corpus is that the former lies latent unless and until the state fails to perform the established

condition, at which time the writ springs to life.”). Here, as the majority suggests, the district court

effectively issued a conditional writ when it “direct[ed]” that the state conduct a new parole hearing

under the old standards—a remedy our court, albeit in a dissent, had roughly suggested. Dyer v.

Bowlen, 465 F.3d 280, 295 (Rogers, J., dissenting). This course of action was rather unremarkable.

See Satterlee v. Wolfenbarger, 453 F.3d 362, 369 n.5 (6th Cir. 2006) (“[T]his court has consistently

endorsed the use of conditional writs . . . .”); see, e.g., Mickens-Thomas v. Vaughn, 321 F.3d 374,

393 (3d Cir. 2003) (remanding state prisoner’s case “to the [state Parole] Board for further

proceedings consistent with this opinion, including a new hearing for Thomas”).

        After the state conducted a new parole hearing, the district court was required to consider

whether Dyer’s habeas petition was moot. This too was unremarkable. See N. Carolina v. Rice, 404

U.S. 244, 246 (1971) (“Even in cases arising in the state courts, the question of mootness is a federal

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No. 10-5137
Dyer v. Morrow

one which a federal court must resolve before it assumes jurisdiction.”). And in order to determine

whether Dyer’s petition had become moot in light of the new parole hearing, the district court had

to inquire whether, at least facially, the hearing was conducted as directed under the old standard.

After performing this facial analysis and concluding that “Dyer has now received a hearing under

the old statutory standard that existed when he committed his crimes and was convicted,” the district

should simply have dismissed Dyer’s petition as moot. Unfortunately, perhaps because the state had

moved for summary judgment rather than to dismiss, the district court granted the state’s summary

judgment motion and thereby engendered some confusion. But the only way to understand the

district court’s order is as a dismissal of Dyer’s habeas petition as moot. See Jalowiec v. Bradshaw,

657 F.3d 293, 306 (6th Cir. 2011) (acknowledging a “facial inconsistency” and “misleading

language” in the district court’s opinion, but overlooking those flaws by relying upon “a

common-sense reading of the opinion as a whole” as well as Supreme Court precedent). This

dismissal was not in error, and therefore the proper outcome is to affirm the district court.

        The majority appears to embrace this straightforward reasoning. (Maj. Op. 11.) At the same

time, however, the majority discerns a “fundamental structural problem” with the case, reasoning

that Dyer failed to exhaust his state-court remedies after the new parole hearing and was required

to return to state court. (Maj. Op. 7–10.) The majority concludes that “all subsequent proceedings

after the June 2009 parole hearing could not properly be before the district court until the issues were

exhausted in state courts.” (Maj. Op. 9.) But as explained above, the question of whether Dyer’s

petition was moot was properly before the district court. And Dyer was certainly permitted to argue

that the parole board did not abide by the correct standards—he simply was not entitled to receive

                                                 - 16 -
No. 10-5137
Dyer v. Morrow

more than a skin-deep review for mootness. If Dyer seeks a deeper review of the parole board’s

actions, only then he will have to return to state court to exhaust his remedies.

       Furthermore, the majority’s observation that “[o]nce the parole hearing was held, the writ

would be dismissed, and the [district] court’s supervisory powers under AEDPA would cease,” is

also problematic. (Maj. Op. 10–11.) First, for the reasons already stated, the district court can and

must exercise its “supervisory powers” at least to consider the question of mootness. Second, to

extent this statement implies that a federal court is without jurisdiction to consider whether a state

court has complied with an order granting a conditional writ, it is erroneous. See Gentry, 456 F.3d

at 692 (“A federal district court retains jurisdiction to determine whether a party has complied with

the terms of a conditional order in a habeas case.”); see also Patterson v. Haskins, 470 F.3d 645,

667–68 (6th Cir. 2006) (noting that district court and appellate court jurisdiction was proper to

“evaluate[] compliance with the terms of the conditional writ”).

       In addition, after reaching the correct conclusion (Maj. Op. 11), the majority then discusses

in Parts IV and V several issues that are not necessary to the outcome of Dyer’s appeal. Given that

the application of Cullen and possible future limitations issues are not germane to resolution of the

issue before us, I would refrain from any analysis on these points.

       With the foregoing observations, I concur in the judgment of the court.




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