that the government doesn't struggle with the actual substance of his complaint instead the government focuses on relief mr burnett never sought in legal theories he never endorsed my argument today will focus on two points that pled out to wife with possibility of parole no your honor he does have the possibility of parole so he's had several hearings so what is it that that  violates his due process the critical change occurred in november of twenty thirteenth approximately two weeks after his two thousand and thirteen parole investigation will hear real change yes your hon is there any suggestion that up until that time they could not consider the crime that the person had been convicted of i don't think show no your honor we have no reason to think that it wasn't a permissive consideration that the individual was convicted and the fact that they said no don't forget consider the crime you have to do that in a discretionary that is they are not bound the the governor is not bound by either the investigator or the parole board's recommendation that's correct judge kelly there are not being affected what's critical here is in the twelve the six contacts that mr byrne and complete contains defendant that in completed she recommended him for parole she cited two reasons in that recommendation one was that he had served nearly twenty years of his sentence and that three years he had good conduct in twenty sixteen that same par investigator did not recommend parole she didn't mention that he had served three more years of a sentence or that she had three more years of that conduct she mentioned one thing and recommending against parole that was the heinous nature of his crime and she listed details in that no in that two thousand and sixteen report that she knew about and reported and her twenty thirteen report that's sufficient to raise an inference that the november twenty thirty nine amendment change which occurred two weeks after her november or her two thousand and thirteen report but that as applied to him that mandate changed her analysis and this is this is based on you're still in the due process argument and you're arguing that there's  near the governor does not have to heed that that's correct your honor and so why does it make a difference as you suppose a different parole or investigator had come up with this new recommendation without the change in can had been completed by different perl investigator or different prole or the same person had recommended releasing on post if recommendation had been that he be considered for parole sure  genuine opportunity for parole he clears the first discretionary hurdle the parole investigator says recommended him for parole but in twenty sixteen he didn't even clear that first hurdle well he still had to clear the hurdle with the governor and you don't and you don't expect in the plea agreement that the prosecutor can guarantee you that the citizens of the state aren't going to elect a governor that's tough on crime and he's going to deny parole to people who have committed violent crimes right that's right and i agree judge and so doesn't i mean a lot of what you plan your complaint is how conservative and tough on crime is governor is doesn't that defeat  you process claims your breach of plea agreement and your general due process claim no your honor argument isn't that he was actually entitled to parole or that under the new guidelines he would get parole argument is that the way the new guidelines were applied to him in twenty sixty effectively render him unsuitable for parole because that was a single consideration the defendant didn't had when she recommended against parole whereas the same parole investigator under the old guidelines recommended him for parole argument is that effectively her application of those guidelines to mr burnett who's crime he pled guilty to was first degree murder the seriousness of his crime will never change and now that that's a mandatory of a of a right to have the same for all investigator continue all the way through his sentence or to have your a right is that that once it's recommended for parole will never be consideration for proly candidate the change respectfully no your honor that's not what we're arguing what we're arguing is that the change in a member twenty thirteen for the first time to mandate to require consideration of the underlying  for someone like mr barnett who pled guilty who gave up his constitutional right to a jury trial believing that the essence of that promise was that he would have a genuine possibility of parole in oklahoma he's lucky he got that well in twenty thirteen under the old guidelines when the government performed on its promise you're right he did get a genuine opportunity for parole when those guidelines change and mandated consideration of that underlying offense first degree murder which will not change our argument is that sufficient facts a parole they could have looked at his behavior in prison and said you know what even though he did commit the same crime we're going to recommend parole and see what the governor said correct the parole board does have discretion so i mean i i'm having a place depositions were taken and it came out exactly who she just it still is nothing but a recommendation to the governor and it doesn't change is right under the plea agreement life with the possibility of parole the key here again judge kelly is that i know i know with your position is right but i don't understand it given it with the statute says the governor may not grant parole that's correct after this date then i'd look at it quite differently but the statute was never change the change in the statute was only to require consideration of the underlying offense because we talk about ex pos facto that's your second claim the second cleanups is ex post facto clean the i think where we disagree most with the government is with respect to the second requirement whether or not mr burnett can possibly allege that that change in the guidelines as applied to him increases risk punishment under governor we know that the presence of discretion does not destroy litigants ability to show an increased risk of punishment here or the court looked to good time credit which isn't part of the sentence it's outside of the sentence if you could is at the reduced opportunity to earn good time credit in turn earlier release was sufficient to show in a huge difference between good time credit because it's just a mathematical calculation there's not it's not the aggression ery so you're talking about actual edition all days in prison when you start changing the good time credit calculation here even when it was recommended that your client be granted parole the heating get past the first stage because the parole board said no so they obviously looked at something other than his conduct in prison because his conduct in prison was pretty good at that point but again i don't see that you've argued something that would support the second prong of an ex post facto because you can't show that there's a significant risk of an increase of his prison time and i agree that good time credits are different with material about the way the court in the ones that is the court looked at conditions outside of the the court relegate on behalf of the state of oklahoma this court has already identified a number of the key holes in the due process claim that appellant brings us i would like to start with the  that discretionary parole by its nature is subject to change and states must have due flexibility in formulating parole procedures if this is true then parole rules in place at the time of the crime cannot be implied  appellant due process claims therefore dependent upon reading something into the plea agreement that isn't there the district court's decision to dismiss that claim can be affirmed for two reasons first the state cannot be bound to think that is not promised the change in the procedures which do apply retroactively to the defendant so you've got the classic satisfaction right there of an ex post facto law right it's applying really well it will apply to burnett yes you're right after he was sentenced after the plea agreement so it's retroactive so then we get to a ok what effect will it have on him  breach of possible have any effect on his liberty interest and he's arguing not that he should be released as i understand it but that he should have a fair shot at being considered for parole that underlying crime that the individual committed and there had not really been put that kind of emphasis on it in their prior procedure right well all we're looking at here is that cut and procedure that's that's what the petitioners talking about here is the change in procedure the parole procedures that are now applied to him that that has changed and now the emphasis is look on look always first at the crime of conviction well the statute says prior criminal history your honor and i don't think that if that look first of those think a window that they're before the under three three two point seven but second are words that you consider the prior criminal history isn't that that was the statutory amendment your honor that yeah ok so there was a change adding that language right yes your honor ok this change in the statute sufficiently increased the risk of his punishment and your honor there has been no change in the way that  present and that was ok then with the very next time that he's up for parole consideration and after this change the same investigator and there's been no write ups as i understand six and we have this report one was a good report and the next one is a bad report and in the interim there's a change in the procedure is not enough to get past the basics i don't believe so your honor i believe that the burnett has made no factual allegations against any actual decision maker the only concrete factual allegation made against the parole board is that they denied him  governor's grant of parole is just far too in ten you waited even if even if that came into play in the whole investigator's change  then going back to just the the text of the statute your honor first the statute does not compel consideration of the infinite offense only per criminal history those have been separate always been permission permissive and not only has it all back both reports the twenty thirteen in the twenty sixteen begin with the description of the crime for which he is currently imprisoned right that's correct your honor and that there is also a separate consideration for prior felonies and that those have always been to separate considerations so i think basing this speculation on this is why it's not only that the change of mind because of this but misread the statute acted inconsistent with their with their practices that we can see from the record and then made it based on that so it get it get even more speculative about a very  in addition not only is it permitted but it has always been used you look at the report and the reports show that it all with the news and in fact i think that the nature of the crime must be considered whether or if they don't consider the crime the risk of recidivism must be weighed against the gravity of the fan of the offense how much deterrence is needed is dependent on what crime has been deterred and different  differently your honor and moreover this must be the statue must be measured within the context of oklahoma's entire parole system if the probe or consider any dynamic back or along with the nature than burnett sentence transformation theory falls apart because the sum of the cumulative factors going from one pearl earring to the next would be variable and you couldn't accurately say that all hope is been taken away because i consider a single immutable factor and if you look at the report the specific dynamic factors complained of age times or behavior the certificates that you earned work report those are all still within the twenty fifteen report and if you look at subsection j the very next but that can it says that the pro board shall consider conduct while incarcerated so that is also another dynamic factor that the parole board must take into into account in addition your honor if you read the very next sentence of that section i it provides a mechanism for all violent offenders and then the very next sentence anticipate that violent offenders will be released but ultimately leave the link between the new rule and parole release to  and so as this court has already touched on you know what we're talking about is a limited non binding recommendation that goes to an advisory board not all of which is appointed by the governor who does the blind vote and make the non binding recommendations to the governor if the governor chooses to grant parole the governor then has to report that legislature and in that report the governor must note the nature of the offense and the length of incarceration if anything it is implied that the nature of the fence will be considered regardless of whether that the statute can a governor bring parole against the recommendation of the parole board  consider the instant offense but you're not required to now even though it is a certainty that you will i think that this remedy remedy would just demonstrate that the new rules are really the same as the old rules and this thirty four says you want to issue thirty four second there's no doubt thank you both for your arguments this morning kids know that our next case for argument is united states versus easier