kirkland and ellis on behalf of michael bailey twice in the last seven years this court has explicitly recognized that a probe board's reliance on false information in a profile would constitute a due process violation in an appropriate case this is that appropriate case in keith the ohio supreme court confirmed that ohio law creates a constitutionally protected liberty interest in accurate parole records although ohio's parole statute is discretionary keith recognized limits to that discretion the pro board may not rely on pro records it knows or has reason to know are factually inaccurate and when an inmate credibly alleges and inaccuracy the pro language but go ahead so i think that this case is cognizable under two thousand two hundred and fifty four and mr bailey did bring this case in the ohio state courts he pursued that case all the way up to the ohio supreme court before filing his and fifty four dollars the other one come to grips with this twenty two dollars of the core language that it's only on the ground in custody in violation of the constitution which seems tricky given that  it was a situation where it was a death penalty case so the court was coming to grips with whether a specific method of execution was constitutionally permissible and the court did grapple with the price or another will that change the judgment if you're challenging the method of execution the court did not say it did in that case it would go to the validity of the judgment though correct if the sentence is unlawful and the judgment incorporates the son's doesn't that mean there's a defect in the such well i mean is there any precedent that says the district court is bound to construe the claim to be different in kind of construed to be under a different statute than than the one that specified as opposed to you know reading liberally certain factual allegations or that sort of thing or wherever said a district court has an obligation to correct the section number well in in the entitled to have their actions treated as claims for relief under the civil rights act which i think is precisely what we're asking here but i would push back a bit judge kaplan on the notion that you know his claim is different i mean his underlying constitutional claim remains the same he just put it in the wrong bucket of twenty to fifty four versus nine hundred and eighty three and going back to judge sutton's point he he went through you know a lot more procedural hurdles and he would have had two hundred and eighty three be there also could be i suppose i'm not sure for mr bailey what the issues would be but i think a broader concern that this question have is you know what to do with kind of the other plaintiffs that are in mr bailey shoes great even if there is no time bar for mr bailey who is in prison indefinitely perhaps for another prisoner there could be a time or issue i don't think it would be equitable for the court to just dismiss the claim because he happened nettles you know there are other cases from other circuits in which the courts have vacated the district court's decision and remained it precisely to allow a pro se plaintiffs to amend their pleading avoid any potential bar issues and bring it back up under one thousand nine hundred and three recognizing that supreme court and every circuit that i'm aware of you know construe per se plaintiff's claims very liberally and what's your best case or your best argument for  case from the circuit and again i recognize that that's an adams and adams as well and if you read those two together it's at least it's hard to see where the line is and certainly i can't imagine a person a prisoner being able to tell i also think know that's one of your best arguments i agree so it's not intuitive or the line is but sadly there is a line well the question is where is the question is it a line of overlap or is it a line of segregation and so the question becomes what types of claims can be brought under each of those various headings and i guess my question to you would be in supporting this petition what is it about this petition the truth makes it fit within an overlapping area so the trail case was a case in which a federal prisoner brought a hate peace action about a specific parole procedural issue it was a believe of whether the federal courts could have a video conference here so i find it very difficult to read that case and then look at you know mr bailey's claim here and say that you know after talking about well let's just treat it as a one thousand nine hundred and eighty three claim i'm not getting you know there is a line between those we don't think of them as just the same right so maybe i'm understanding your two arguments maybe that's part of my right know i grew with that but then you have to say ok let's now look at twenty four and then that's compared to twenty to forty one and under twenty to forty one c you've got these five options and i'm going to guess terrelle doesn't spell out that it was granny relief  have to fall back to the point that for a pro se plaintiffs this is a very complex question and i don't think that the courts would hold that level of knowledge for press a plaintive to understand the there i don't know about that but there could be depending on again he has to do grievances and things like that so i'm not sure and my main argument as well is there is a remedy here and the ohio supreme court information in their profile and if there's false information to get that corrected i mr bailey pursued mandamus on a different issue in that decision you have a supreme court cited their decision in ke argument is with the parole it already so if you and the ohio supreme court has said you have this right to have accurate information in your profile and they granted a mandamus action for keith so there is this remedy available for him and he can pursue it and he just never house that was that why the actually did file was denied they say hey you lose because you didn't see this quote in mandamus know his action which he filed with a bunch of other inmates was the difference between old law and new law inmates and i thought i thought there was some litigation the state courts where he said myra the record of the pro board is inaccurate in describing my crime he did file some kind of motion to correct the record in the ohio court that he trial court i think it is criminal case like that's not where you file and the actions of the i get the he's barking up the wrong tree point but is that how they say is that why they rejected the claim or did they reject on the merits i thought from reading the bri he did do something no they corrected the data completing two different things there was a procedure they filed in his trial court criminal action to my knowledge to correct the record and i believe they said they didn't have jurisdiction i'm not certain about that but because the case is long and final but he wrote letters essentially using the grievance action that is available to inmates in prison saying i'm not happy with this my record contains false information correct and they said we're correcting this and they also said that we didn't no longer believe what the prosecutor version of the facts was so that he's got responses but that's the grievance procedure again that's not a court action there is in keith they said we have this court action you can get mandamus relief if you if you have to show us that you have false information in your profile they later corrected that they said it doesn't mean it can't be all there was a nd keith and they said it can't be all false information it has to be material and misleading information so like in keith i think said you say that i completed a course that i didn't complete and they were the highest records they were not agreeing to hear you would agree here if is down the victim because the victim walked away from the scene of the crime and they said well that's kind of a distinction without a difference and then they said you shot and killed the victim and he said no the victim lived for nine days so that you know so there are some disparities so it's not entirely clear that his belief in the version of the facts and what his codefendant did or did not testify to that the ohio supreme court would say that was material or not material under stood that he pursued his factual inaccuracy in his parole record all the way to a final decision by the ohio supreme court now is that incorrect he did pursue the claim but the issue is is that the proper procedure for pursuing that claim and i believe i can't remember but i think the head of appellate court said we don't have jurisdiction over this i'm not sure if you attach that to his petition or that's just for me looking at it because again we're on a roof or so i don't know what said it couldn't say that there wasn't a person exactly and they said ok we're going to correct the date of your conviction and we're going to correct it to say post conviction and nothing else none of the factual issues that he writes were ever alter i'm not sure about that i believe they did take out some thing about whether the person was shot execution style but i don't know about other i mean again we are left with the record that he filed so but anyway to be filed under two thousand two hundred and fifty four they can't use the twenty to forty one i believe it said the twenty to forty one was really relegated to pretrial detention like a double jeopardy type doesn't allow this it's a claim on the twenty to forty one well  i'm not sure which one came last i'd have to look at that but in any event it's my understanding like for federal inmates they have to use twenty to forty one for a method of execution like a execution of the but in addition i would argue that the ohio supreme court's decision did not find liberty interest in parole records they found that essentially under our statute to give meaning to our statute and to provide the integrity of the process we expect that the records are accurate inaccurate records could benefit the inmate or could harm in that there's a i mean there's nothing in the process that said it was mandated that all favorable information be corrected but no unfavorable information be corrected that's not it issue here isn't it isn't hasn't he made a specific request for what he seeks yes he has and he was there he wants damaging information to him that he believes has resulted in denial of parole for fifteen years beyond the time that he was sent specifically said he could be considered for parole rick but the issue is is did the ohio supreme court's decision make a liberty interest in these parole records and nothing in there directed the ohio parole authority as to how to pursue or proceed in these parole hearings what outcome to come to it just said you have to have accurate information when it's meant you have to i don't we have don't we have your organs in our court it did come before kitty but what explained was it was the precursor it's there is no decision or any buying circuit precedent that for closes the possibility that in an appropriate case a parole boards reliance on unconstitutional factors or even false information in the parole file could constitute a due process violation then it says that's not the case here which then we have keith and then keith fits right into the they can do that and they still don't create a liberty interest there are many reasons why a state would create process and not all of them are vindicated through the us constitution through the due process clause and here this is one of them it would be odd to say ok ohio pre keith everything was discretionary there was no liberty in your view that there can never be a liberty interest and parole proceedings because proles discretion no my belief is that you have to look to the law and the law says if you place substantive limits on official discretion particular eye standards or criteria that great guides the decision makers and you mandate the outcome to be really has to be reached finding relevant criteria as has been met here none of that is present in the key decision they simply say when it's material and misleading information it should be corrected and that's to give effect to our statute or statute has to have meaning and in order to have meaning you have to be judged by your own criteria they decided that based on their own precedent their own view of their statute under ohio law and nothing in there but if your hypothetical were just seems odd that you wouldn't have a liberty interest i mean one reason you have cl parole is to put in new facts it turns out sometimes people the wrong person is convicted or it turns out the crime was very different and they should have been convicted if at all for something very you know quite a bit less maybe they were trying to save somebody no one knew it at the time that comes out in the parole hearing and your position is even this incredibly stark contrast between the record of conviction and the record of the parole hearing they can they don't have to honor what comes out in the pro hearing  cart to make the determination that the adult parole authority may not rely on information that it knows or has reason to know is in accurate because again that doesn't tell the already what to look at but it says you can't look at inaccurate information but it doesn't say how much weight to give certain criteria or what result to roche is struggling with because if it's say as if you have a case that says parole board you may not rely on inaccurate information we overrule an earlier case that stage you could what more does a court need to say there is an allegation based on the record at trial and what is known to be before the parole board that is a reasonable comparative informational pieces from two documents that show a parole board that there are inaccuracy in the parole record and your position is this case doesn't say you can't do that right and in fact there is case law from the u s supreme exact arguments i tried to make the the u s supreme court they rejected them and they said if you do something utterly irrational and implementing parole even though it's discretionary it is still going to implicate liberty interest protected by the due process clause that's u s supreme court decision rejecting ohio's position about parole early irrational like i mean they're going darts that was the example that killed us in that case so i know the issue pretty well and i think you're pushing a little hard and saying there's no liberty interest at all in this type of thing that you know maybe this case that might be true but i wouldn't push the point to sweepingly the i mean the the the supreme court cases speak for them so you know you know what or do you know the case i'm talking about i  standards there's a different filing fee there's a different exhaustion mechanism there's all sorts of differences in the two dollars procedures that are you not objecting to that i mean you're the represent of the state it's not you know somebody who's not in the it was that what happened he just picked the wrong avenue not sure i'm not sure but certainly there's nothing in the court of appeals decision that would tell us either way nor with jurisdictional charge in the in the briefing before this court the government correct right on the question of viability of the claim under nine hundred and eighty three dollars nettles provides provides grounds for conversion whether if of the twenty to fifty four action it remained just to let you know have a chance to respond to my modest anxiety about this argument i get the idea we construe prosecco points liberally but speaking off the cuff my time bar get everything is done i just where i personally way prefer that i want you to respond to me but the reason i way prefer it is otherwise it makes people even looser about this stuff and before you know it it's ninety eight thousand three hundred and twenty two  supreme court precedent in this area which i don't find career so if this court were to create a bright line rule i think that that is fine for a future if you don't really want us to convert it to twenty to forty one do you that puts more lawful ground to do that yeah that's a point to something that's contrary to law of the district court and i'll just be candid i'm struggling to say the district court acted contrary to law when it did not su itself convert the twenty to fifty four to one thousand nine hundred and eighty three or direct him to amend it to that effect i mean i'm not aware of any law that said that just a court had that obligation and so i'm struggling to see th is really lucky thank you so much for representing him that helps us obviously it helps him it helps the system so we're really grateful thank you all right the case will be submitted in the