                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0330p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                            Petitioner-Appellant, -
 JOSEPH P. DYER III,
                                                     -
                                                     -
                                                     -
                                                          No. 04-5478
          v.
                                                     ,
                                                      >
 JAMES BOWLEN, Warden,                               -
                           Respondent-Appellee. -
                                                    N
                      Appeal from the United States District Court
                 for the Eastern District of Tennessee at Chattanooga.
                    No. 01-00392—R. Allan Edgar, District Judge.
                                    Submitted: April 24, 2006
                              Decided and Filed: August 30, 2006
              Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: Angele M. Gregory, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Respondent. Joseph P. Dyer III, Pikeville, Tennessee, pro se.
        GILMAN, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined.
SUHRHEINRICH, J. (p. 11), also delivered a separate concurring opinion. ROGERS, J. (pp. 12-
14), delivered a separate dissenting opinion.
                                       _________________
                                           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 postconviction 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


                                                 1
No. 04-5478            Dyer v. Bowlen                                                               Page 2


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:
        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
No. 04-5478           Dyer v. Bowlen                                                             Page 3


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, 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.
No. 04-5478           Dyer v. Bowlen                                                            Page 4


        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).
        When a state court fails to address the petitioner’s federal claim, we review the claim de
novo. Howard, 405 F.3d at 467. If, however, a state court does not squarely address the claim but
engages in what resembles the proper constitutional analysis, we review the record and the law, and
will reverse only if we determine that the state court decision was contrary to, or an unreasonable
application of, federal law. Filiaggi v. Bradley, 445 F.3d 851, 854 (6th Cir. 2006).
B.      Requirements for proving an ex post facto violation
         Two issues, both regarding the parole board’s retroactive application of the new parole
provisions, are now before us: (1) Did the parole board commit an ex post facto violation when it
retroactively applied the may/shall provision, and (2) did it commit an ex post facto violation when
it retroactively applied the seriousness provision? Because these two inquiries employ a similar
method of analysis, we will discuss them together.
        The Constitution prohibits states from imposing ex post facto laws. U.S. CONST. art. I, § 10,
cl. 1. An ex post facto law possesses two elements: (1) “it must apply to events occurring before
its enactment,” and (2) “it must disadvantage the offender affected by it.” Lynce v. Mathis, 519 U.S.
433, 441 (1997) (citation and quotation marks omitted) (holding that a Florida statute canceling
provisional release credits violated the Ex Post Facto Clause). Retroactive application of parole
provisions falls within the ex post facto prohibition if such an application creates a “sufficient risk
of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones, 529 U.S.
244, 250 (2000) (citation and quotation marks omitted).
        The Supreme Court has not articulated a precise formula for determining whether a risk is
“sufficient.” See Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 509 (1995) (“We have
previously declined to articulate a single ‘formula’ for identifying those legislative changes that have
a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition
[on ex post facto laws], and we have no occasion to do so here.”). Despite its failure to proclaim a
particular formula, the Supreme Court has consistently required petitioners to proffer actual
evidence, rather than mere speculation, regarding the retroactive application’s disadvantageous
effect. See, e.g., Morales, 514 U.S. at 509 (“The amendment [in question] creates only the most
speculative and attenuated possibility of producing the prohibited effect of increasing the measure
No. 04-5478           Dyer v. Bowlen                                                             Page 5


of punishment for covered crimes, and such conjectural effects are insufficient for any threshold we
might establish under the Ex Post Facto Clause.”).
         The Supreme Court has held that the retroactive application of parole laws is unconstitutional
where inmates can demonstrate with certainty that their punishment increased as a result of the
retroactive application. In Lynce, for example, the Court considered whether Florida’s retroactive
elimination of provisional-release credits for certain classes of inmates constituted an ex post facto
violation. 519 U.S. at 435. The petitioner in Lynce was released early from prison partially as a
result of his accumulation of provisional-release credits awarded by the state of Florida to alleviate
prison overcrowding. Id. at 436. Shortly after he was released, the Florida legislature cancelled
these credits, and a rearrest warrant was issued for Lynce. Id. The Lynce Court held that “the actual
course of events makes it unnecessary to speculate about what might have happened,” and that the
retroactive application “has unquestionably disadvantaged petitioner because it resulted in his
rearrest and prolonged his imprisonment.” Id. at 446-47. As a result of this clear adverse effect on
the petitioner, the Court held that Florida’s actions were unconstitutional. Id; see also Weaver v.
Graham, 450 U.S. 24, 35-36 (1981) (holding that Florida violated the Ex Post Facto Clause when
it retroactively applied a statute eliminating gain-time release credits because the elimination “makes
more onerous the punishment for crimes committed before its enactment”).
         In contrast, the Supreme Court has refused to hold the retroactive application of parole laws
unconstitutional where inmates’ claims have been based on speculation or conjecture. In Morales,
for example, the inmate challenged the retroactive application of a law that maintained the date of
his initial parole hearing, but granted the California parole board the discretion to increase the
interval between parole hearings from one year to three years if the board determined that there was
no reasonable probability that the inmate would be suitable for parole in the interim period. 514
U.S. at 504. The Court emphasized that the statute applied only to inmates whose chances of release
on parole were “quite remote,” and it focused on the fact that the law in question created “only the
most speculative and attenuated possibility of producing the prohibited effect of increasing the
measure of punishment for covered crimes.” Id. at 509. In response to the inmate’s claim that there
is “no principled way to determine how significant a risk of enhanced confinement is to be
tolerated,” the Court stated that “[o]ur cases have never accepted this expansive view of the Ex Post
Facto Clause, and we will not endorse it here.” Id. Without evidence beyond pure conjecture of
a sufficient risk of increased punishment, the Court was unwilling to hold that this procedural
change in California’s parole laws violated the Ex Post Facto Clause. See Garner, 529 U.S. at 250
(classifying Morales as a case involving a purely procedural change to California’s parole laws).
        The Supreme Court considered a similar scenario in Garner, where the parole board in
Georgia retroactively applied a law that increased the interval between subsequent parole hearings
from three years to eight years for inmates serving life sentences who had previously been denied
parole. 529 U.S. at 248. Although the Garner Court acknowledged that the requisite risk could be
inherent in the statute, it also reached the following conclusion:
       When the rule does not by its own terms show a significant risk, the [inmate] must
       demonstrate, by evidence drawn from the rule’s practical implementation by the
       agency charged with exercising discretion, that its retroactive application will result
       in a longer period of incarceration than under the earlier rule.
Id. at 255. Because the lower courts had failed to ascertain beyond mere speculation whether
retroactive application of the Georgia rule created a significant risk for the inmate in question, the
Garner Court held that the record did not support a holding that the state had committed an ex post
facto violation. Id. at 256-57.
No. 04-5478           Dyer v. Bowlen                                                             Page 6


         The relevant Supreme Court precedents, at least from a factual perspective, provide us with
little guidance in this case. At one extreme are Lynce and Weaver involving near-certain increased
risks of punishment, whereas Morales and Garner are at the other end of the spectrum in which the
inmates provided only speculation regarding such risks. Dyer’s case, as analyzed below, falls
somewhere in the middle. Intuitively, the retroactive application of new parole statutes that reduce
the level of discretion afforded the parole board might effectuate a sufficient risk of increased
punishment, but the ultimate result depends upon how the parole board actually exercises its
discretion. Regardless of the factual circumstances, however, the Supreme Court has made clear that
in order for us to conduct the necessary ex post facto inquiry, we must determine whether Dyer has
produced specific evidence of a sufficient risk of increased punishment. See, e.g., Garner, 529 U.S.
at 255-57 (holding that the Eleventh Circuit erred in basing its decision on nothing more than
speculation of increased punishment).
C.      Dyer’s claims
        Dyer’s first claim alleges that the retroactive application of the may/shall provision created
a sufficient risk of increased punishment in violation of the Ex Post Facto Clause. This provision
is nearly identical to the provision in effect at the time of Dyer’s offenses, except that the 1974
version of the statute compelled the parole board to parole an inmate if two conditions were met,
whereas the 1998 version allows the parole board discretion to parole even if the inmate meets the
same two conditions. Compare Tenn. Code Ann. § 40-3614 (1974) with Tenn. Code Ann. § 40-28-
117(a) (1998) (containing essentially the same language except for “shall” in the 1974 version and
“may” in the 1998 version). In other words, Dyer claims that the 1998 statute gives the parole board
discretion where it once had none.
        Dyer also alleges, in addition to the may/shall disparity, that the retroactive application of
the seriousness provision—the statute with no parallel in 1974—constituted an ex post facto
violation. See Tenn. Code. Ann. § 40-35-503(b) (1998). He contends that he has no chance of
parole because he was convicted of “especially serious offenses.” In support of this proposition,
Dyer notes that the three parole board members who voted to deny him parole in 1998 based their
decision on the seriousness provision. For this reason, Dyer alleges that the risk of increased
punishment is not purely speculative or attenuated.
         We note at the outset that the Tennessee Court of Appeals failed to address Dyer’s claims
individually. It did not cite the specific provisions challenged by Dyer or analyze their
effect—choosing instead to rely on the trial court’s characterization of the provisions as purely
procedural. See Dyer v. Tenn Bd. of Paroles, 2001 WL 401596, at * 2 (Tenn. Ct. App. Apr. 23,
2001). Addressing Dyer’s claims collectively, the state appellate court found persuasive the trial
court’s holding that “[t]he current statutes do not affect the length of the petitioner’s life sentences,
do not change the application of sentence reduction credits to parole eligibility data and do not affect
eligibility for parole consideration in any manner.” Dyer v. Tenn Bd. of Paroles, 2001 WL 401596,
at * 2 (Tenn. Ct. App. Apr. 23, 2001) (quoting from Dyer v. Tenn. Bd. of Paroles, No. 99-86-III,
slip. op. at 3 (Tenn. Ch. Ct. Sept. 20, 1999). Further reasoning that the seriousness provision
“enumerates one reason for which the Board may elect, in its discretion, deny parole,” the Tennessee
Court of Appeals held that retroactive application of this provision “does not affect parole eligibility
date or denial of parole.” Dyer v. Tenn Bd. of Paroles, 2001 WL 401596, at *2 (Tenn. Ct. App. Apr.
23, 2001).
       The district court held, with little analysis, that the state court’s classification of the post-
1974 changes as “procedural in nature” was neither contrary to, nor involved an unreasonable
application of, clearly established federal law. See Dyer v. Bowlen, slip op. at 5-6 (quoting from
Dyer v. Tenn Bd. of Paroles, No. 99-86-III, slip. op. at 3 (Tenn. Ch. Ct. Sept. 20, 1999); see also
No. 04-5478           Dyer v. Bowlen                                                             Page 7


Morales, 514 U.S. at 508 (holding that the retroactive application of procedural changes does not
implicate the Ex Post Facto Clause). We respectfully disagree.
        Although the Tennessee Court of Appeals failed to address Dyer’s claims individually, its
decision bears enough of a resemblance to an ex post facto analysis so as to require us to review the
decision under the deferential lens of AEDPA. We will thus not reverse unless the decision was
contrary to, or involved an unreasonable application of, federal ex post facto law. See Filiaggi, 445
F.3d at 854. The Supreme Court held in Morales that a successful ex post facto claim requires only
that an inmate demonstrate a sufficient risk of increased punishment. 514 U.S. at 509. Garner
further defines the framework for determining the requisite risk by instructing lower courts to first
consider the risk inherent in the wording of the statute itself and then, alternatively, to explore the
evidence of the statute’s practical implementation. 529 U.S. at 255. Although Dyer’s claims are
factually distinguishable from those in Morales and Garner, the rule of constitutional law
pronounced in those cases remains the proper standard by which to measure an ex post facto
violation. See, e.g., Morales, 514 U.S. at 509; Garner, 529 U.S. at 255.
        The Tennessee Court of Appeals, however, required that an inmate show an actual increase
in punishment. Dyer v. Tenn Bd. of Paroles, No. 99-86-III, slip. op. at 3 (Tenn. Ch. Ct. Sept. 20,
1999) (“The change [] is not imposition of a greater or more serious punishment than was proscribed
by law at the time of the offense.”). This approach runs contrary to the constitutional standard set
forth in Morales and Garner because it placed too great a burden on Dyer. Rather than requiring
Dyer to prove that the retroactive application of the parole statutes created a sufficient risk of
increased punishment, the state court demanded that Dyer prove he actually received a more serious
punishment. In doing so, the state court subjected Dyer to a more exacting standard—a standard that
is contrary to the clearly established law as stated in Morales and Garner. Cf. Magana, 263 F.3d
at 550 (holding that the state court’s decision was contrary to clearly established Supreme Court
precedent when it required a petitioner to demonstrate with absolute certainty, rather than reasonable
probability, that the ineffective assistance of his counsel prejudiced him).
         Regarding the seriousness provision, the state court held, with little analysis, that altering
the level of discretion to which the parole board is entitled does not constitute an ex post facto
violation. Dyer v. Tenn. Bd. of Paroles, 2001 WL 401596, at *2. The Supreme Court has explicitly
held, however, that discretion in parole considerations does not insulate the state from ex post facto
violations. See Garner, 529 U.S. at 253 (“The presence of discretion does not displace the
protections of the Ex Post Facto clause . . . .”). By failing to acknowledge Garner’s warning about
discretion, and by disregarding the proper standard for demonstrating an ex post facto violation as
pronounced in Morales and Garner, the state court reached a decision that is contrary to federal law
as determined by the Supreme Court of the United States. We are thus required to review Dyer’s
claims de novo, see Magana, 263 F.3d at 551, analyzing 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. See Garner, 529 U.S. at 255.
D.      Reason for remand
        Because the record in this case does not allow us to fulfill our mandate, we remand the case
to the district court with instructions to conduct an evidentiary hearing on the practical effects of the
statutes’ retroactive application. We do so because Garner requires an inmate to demonstrate a
sufficient risk of increased punishment that is either inherent on the face of the new statutes or is
evidenced by the statutes’ practical implementation. 529 U.S. at 254. Dyer, in our opinion, has been
unable to show the requisite risk in the wording of the statutes themselves.
       We are unable to determine the effect of the may/shall provision without evidence of how
the parole board has actually exercised its discretion. See Garner, 529 U.S. at 250 (“Whether
No. 04-5478           Dyer v. Bowlen                                                           Page 8


retroactive application of a particular change in parole law respects the prohibition on ex post facto
legislation is often a question of particular difficulty when the discretion vested in a parole board
is taken into account.”). Similarly, even when the seriousness of the offense was but one
discretionary factor for the parole board to consider, the parole board might have determined that
Dyer’s offense of double-murder was so serious that his release was “incompatible with the welfare
of society.” See Tenn. Code Ann. § 40-3614 (1974). But, as Dyer argues, because the nature of his
offenses under the 1974 version of the statute was but one factor among many evaluated, the parole
board might have released him in light of his rehabilitative progress while in prison. See Tenn.
Code. Ann § 40-3614 (1974) (authorizing the parole board to consider many factors to determine
if the inmate should be released). The new provision, in contrast, makes the seriousness of the crime
sufficient in and of itself to justify the denial of parole. Dyer bases his claim on that fact.
        The governing standard as announced in Morales, however, “requires a more rigorous
analysis of the level of risk created by the change in law.” Garner, 529 U.S. at 255; see also
Morales, 514 U.S. at 506 n.3 (“[T]he focus of the ex post facto inquiry is not on whether a legislative
change produces some ambiguous sort of disadvantage . . . but on whether any such change alters
the definition of criminal conduct or increases the penalty by which a crime is punishable.”) (citation
and quotation marks omitted); Richardson v. Penn. Bd. of Probation and Parole, 423 F.3d 282, 292
(3rd Cir. 2005) (recognizing “the intuitive force of the argument that adjudication under stricter
standards is more likely to lead to an adverse result,” but holding that the inmate was required to
demonstrate evidence of an actual disadvantage).
        In Garner, for example, the Eleventh Circuit Court of Appeals held that retroactive
application of the new parole guideline seemed “certain to ensure that some number of inmates will
find the length of their incarceration extended.” Garner, 529 U.S. at 249 (citation and quotation
marks omitted). The Supreme Court reversed and remanded, holding that “[t]he record before the
Court of Appeals contained little information bearing on the level of risk created by the change in
law.” Id. at 256. Without evidence of an actual disadvantage to the inmate (or at least general
information regarding the operation of the parole system), the Supreme Court was unwilling to hold
that the Ex Post Facto Clause was violated. Id.; see also Morales, 514 U.S. at 508-09 (rejecting the
proposition that all changes that might “create some speculative, attenuated risk of affecting a
prisoner’s actual term of confinement by making it more difficult for him to make a persuasive case
for early release” constitute ex post facto violations).
        The Third Circuit’s decision in Richardson, 423 F.3d at 291-94, demonstrates the necessity
of evidence in performing the “significant risk” inquiry. In Richardson, an inmate convicted in 1984
argued that the retroactive application of parole amendments enacted in 1996 constituted an ex post
facto violation. Id. at 284. The inmate demonstrated that the parole board did in fact apply the
amendments retroactively, but the court held that he was required to show that the retroactive
application individually prejudiced him. Id. at 292-93.
        Although the Richardson court acknowledged “the intuitive force of the argument that
adjudication under stricter standards is more likely to lead to an adverse result,” it held that the
“evidentiary requirement of jurisprudence must be honored.” Id. at 292. The court distinguished
Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), an earlier Third Circuit case in which the
panel granted habeas in light of statistical evidence suggesting that the retroactive application of
parole guidelines increased the inmate’s period of incarceration. Id. In other words, without actual
evidence demonstrating that Richardson was subject to an increased risk of incarceration, the court
was unwilling to hold that retroactive application of the parole statute was unconstitutional.
       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. The state
repeatedly contends that Dyer has failed to proffer evidence of an actual disadvantage, but we find
No. 04-5478           Dyer v. Bowlen                                                            Page 9


this argument unpersuasive considering that Dyer was never afforded the chance to prove otherwise.
Without providing Dyer with an opportunity to access data pertaining to the effect of the retroactive
application of the parole laws on his own prison term (or the terms of others similarly situated), his
claims will never rise above speculation—and will ultimately fail. The state attempts to take
advantage of Dyer’s quandary by acknowledging that even though the may/shall provision might
have increased the parole board’s discretion, Dyer’s claims rest on speculation rather than proof.
        Our decision to remand for an evidentiary hearing gains support from Garner itself, where
the Supreme Court noted that the courts of appeals are entitled to cure insufficient records by
ordering discovery. Garner, 529 U.S. at 257 (“Respondent claims he has not been permitted
sufficient discovery to make this showing [that retroactive application created a significant risk of
increased punishment]. The matter of adequate discovery is one for the Court of Appeals . . . .”).
         Our dissenting colleague, however, would flat-out reverse the district court’s decision. The
dissent makes much of the distinction “between situations where the substantive criteria for parole
. . . revocation are changed, on the one hand, and situations where the methods or procedures for
applying those criteria are changed, on the other.” Dissenting Op. at 12. The dissent classifies
Dyer’s complaint as one challenging the substantive criteria for parole and, as a result, concludes
that the retroactive application of the seriousness provision violates the Ex Post Facto Clause
because it “makes parole less available depending on the seriousness of the crime—a factor not part
of the previous scheme.” Id. at 13. Moreover, the dissent contends that an evidentiary hearing is
unnecessary where the change in the parole criteria is substantive. Id. at 12.
        We acknowledge that language in various Supreme Court cases lends credence to the
substantive-versus-procedural distinction. See e.g., Miller v. Florida, 482 U.S. 423, 433 (1987)
(“[N]o ex post facto violation occurs if the change in the law is merely procedural . . . . On the other
hand, a change in the law that alters a substantial right can be ex post facto even if the statute takes
a seemingly procedural form.”) (citation and quotation marks omitted). We nevertheless believe that
simply characterizing Dyer’s complaint as substantive in nature provides an insufficient basis for
concluding that he has demonstrated an ex post facto violation.
        In each of the cases relied upon by the dissent for its conclusion that a remand is
unnecessary, the Supreme Court pointed to evidence, observable either on the face of the statute or
as applied, showing that the petitioners were substantially disadvantaged by the retroactive
application of parole laws. No such certainty exists here. The Lindsey Court, for example, found
an ex post facto violation “regardless of the length of the sentence actually imposed, since the
measure of punishment prescribed by the later statute is more severe than that of the earlier.” 301
U.S. at 401 (analyzing a scenario in which the new sentencing law changed the maximum sentence
from discretionary to mandatory). In Weaver, the state retroactively applied a statute that, on its
face, eliminated gain-time credits. 450 U.S. at 26-27. After reviewing the statute, the Court held
that the petitioner was “disadvantaged by the reduced opportunity to shorten his time in prison
simply through good conduct.” Id. 33-34.
        The Miller Court reviewed the retroactive application of a sentencing guideline that changed
the presumptive sentence for the petitioner’s offense from between three-and-a-half and four-and-a-
half years to a range of five-and-a-half to seven years. 482 U.S. at 424. Petitioner was sentenced
to seven years. Id. In holding that the petitioner had demonstrated an ex post facto violation, the
Miller Court focused on the effect of the statutory change. Under the prior law, if the petitioner had
been sentenced to seven years, his sentence would have been reviewable on appeal. Id. at 435. But
under the new law, because the petitioner’s sentence was in the presumptive range, the sentencing
court’s determination was unreviewable. Id. Such evidence of disadvantage was sufficient to
demonstrate an ex post facto violation.
No. 04-5478           Dyer v. Bowlen                                                           Page 10


        What these cases demonstrate, then, is that even when considering substantive changes to
parole provisions, the Supreme Court has relied on evidence of actual disadvantage (or, as stated in
Garner, a sufficient risk of increased punishment). As discussed above, Dyer has been denied the
opportunity to show such risk either on the face of the statute or in its practical application.
        Yet another distinction between the so-called “substantive” cases and the present case is the
level of discretion involved. The provisions at issue in Lindsey, Miller, and Weaver were couched
in virtually mandatory terms. See, e.g., Miller, 482 U.S. at 435 (“Nor do the revised guidelines
simply provide flexible ‘guideposts’ for use in the exercise of discretion . . . .”). Dyer’s fate,
however, depends entirely on the discretion exercised by the parole board.
        Our dissenting colleague minimizes the effect of the parole board’s discretion in the present
case, going so far as to compare the seriousness provision to a hypothetical provision removing the
possibility of parole for rape convicts. Dissenting Op. at 13 (“[T]he statutory provision in this case
really differs [from the hypothetical rape provision] only in the possibility of the exercise of
discretion on the part of the board to grant parole . . . .”). We believe that the distinction cannot be
so minimized. A rape convict could never be released on parole in the dissent’s hypothetical
scenario. In Dyer’s case, however, we can only speculate as to the effect of the seriousness
provision on his parole eligibility in the minds of the parole board, especially considering that the
earlier provision similarly required discretionary consideration regarding the seriousness of the
petitioner’s offense. See Tenn. Code. Ann. § 40-3614 (1974) (requiring the parole board to consider
the “welfare of society” when making its determination).
        We therefore remand the case for an evidentiary hearing—with instructions that discovery
be limited to a class of inmates with comparable convictions and sentences—so that Dyer will have
the opportunity to acquire data evidencing the practical implementation of the parole provisions in
question. On remand, we leave it to the district court to work out the details of how best to comply
with our instructions.
                                        III. CONCLUSION
    For all of the reasons set forth above, we VACATE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.
No. 04-5478           Dyer v. Bowlen                                                        Page 11


                                   _______________________
                                       CONCURRENCE
                                   _______________________
        SUHRHEINRICH, Circuit Judge, concurring. I concur in the reasoning and result of Judge
Gilman’s opinion. I write separately merely to point out the absurdity of postulating that the
Tennessee parole board would, could, ever conclude that Dyer’s “release is not incompatible with
the welfare of society,” Tenn Code Ann. § 40-3614 (1974); Tenn. Code Ann. § 40-28-117(a)
(1998), or that his release would not “depreciate the seriousness of the crime of which the defendant
stands convicted.” Tenn Code Ann. § 40-35-503(b) (1998). In 1975, Dyer was convicted in the
Criminal Court of Hamilton County of two counts of Murder in the First Degree and sentenced to
death by electrocution in each case. Dyer, III v. State, No. 1182, 1991 WL 44978, at *1 (Tenn.
Crim. App. Apr. 4, 1991). In 1977, his death sentences were commuted to life sentences after the
mandatory death penalty statute then in effect was declared unconstitutional, id. a fortuitous event
from Dyer’s standpoint, unrelated to the nature of his crimes and the State’s judgment of them. In
short, in my view, sometimes the technical legal arguments obscure common sense.
No. 04-5478              Dyer v. Bowlen                                                                  Page 12


                                             ________________
                                                 DISSENT
                                             ________________
        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
 Garner 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 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 (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. 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 (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 (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 432.1
         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 (1995). Garner was similar to Morales, and followed Morales without purporting to
 change its rationale. See Garner v. Jones, 529 U.S. 244, 250-57 (2000). The Morales Court


        1
          Indeed, the Miller Court stated that, “[a]lthough 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.
No. 04-5478               Dyer v. Bowlen                                                                     Page 13


 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
 (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 (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 (citations
 omitted).
          Rather than changing the sentencing range applicable to covered crimes, the
          [amendment in Morales] simply “alters the method to be followed” in fixing a
          parole release date under identical substantive standards. See Miller, supra, at 433
          (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 (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. 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 (1977) (citations
 omitted).
       Accordingly, I would not evaluate the provisions at issue in this case under the changed-
 method cases of Morales and Garner, 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 (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; see also Garner, 529 U.S. at 253-54 (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.



         2
          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.
No. 04-5478          Dyer v. Bowlen                                                            Page 14


          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 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.
