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Tennessee Parole Rules-Changes as Applied to Old Lifer May Violate Ex Post Facto

The Sixth Circuit U.S. Court of Appeals held that a double-murderer convicted in 1975, serving life in Tennessee, was entitled to the benefit of 1974 parole rules which conditionally provided that ?... such prisoner shall be allowed to go upon parole,? and therefore the parole board?s 1998 denial using its new rules version, which states ?... may be allowed to go upon parole,? could violate ex post facto principles as applied to him.

Joseph Dyer III was originally sentenced to death, a punishment later commuted to life imprisonment when Tennessee?s death penalty was declared unconstitutional. He was denied parole in 1993 and again in 1998, notwithstanding a clean in-prison record. He complained that his 1998 denial was based, at least in part, upon the 1998 statutory change in the parole board?s discretion from ?shall? to ?may? (Tenn. Code Ann. § 40-3614 (1974) versus Tenn. Code Ann. § 40-28-117(a) (1998)). His legal challenge was that the change was not merely ?procedural? in nature but actually increased his punishment.

Dyer, proceeding in pro per under 28 U.S.C. § 2254, had been denied relief in every state and federal court below the Sixth Circuit. One Circuit judge would have granted Dyer?s writ outright on the plain grounds that the new rules altered substantive criteria for parole, and were not merely procedural changes. The other two judges took a more moderate approach and granted relief for the purpose of having the district court conduct an evidentiary hearing to determine if Dyer?s substantive rights had been violated.

To prevail in this determination, Dyer would have the burden of discovering and presenting evidence limited to comparable convictions and sentences to demonstrate that but for the statutory change, he would likely have been granted parole.

Accordingly, after an exhaustive analysis of pre-existing U.S. Supreme Court precedent on point, the Sixth Circuit vacated the district court?s dismissal and remanded for an evidentiary hearing and determination consistent with the appellate opinion. See: Dyer v. Bowlen, 465 F.3d 280 (6th Cir. 2006).

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Related legal case

Dyer v. Bowlen