good morning your honor may it please the court a name is tom mchugh i'm a third year law student at the university of notre dame appearing under the supervision of attorney robert palmer on behalf of the appellant mr jesse swenson your honors mistress winston has been incarcerated for nearly seventeen years on charges of white collar fraud all his current previous petition does not challenge is underlying conviction mr swinson is challenging several decisions made by the wisconsin department of corrections to wait list then summarily remove him from eligibility for the earned release program or be created under wisconsin statute three zero two point zero five your honor this court should reverse the decision of the district court for three main reasons first because the district court erred in concluding that mr swenson failed to properly present his federal constitutional claims before the state court second and alternatively even should this court find mr swenson's claims procedurally defaulted it should nevertheless excuse the defaults and hear the merits of those claims in order to avoid a fundamental miscarriage of justice and third because weight listing and then summarily removing mr swenson from eligibility for the e r p resulted in a violation of his constitutional rights to equal protection and due process and acted as an ex post facto law moving to the first to raise it federal constitutional issue in this in the state courts however this court has held and will soon be brierly that four factors are used to determine whether a petitioner has successfully raised federal constitutional claims before state courts importantly to in this case your honors there is no it's not contested that mr swenson did raise his constitutional claims before the federal district courts and indeed mr swinton's claims before the federal court stemmed from the same pattern of facts as all of these claims for the state court additionally mr swinson state court pleadings framed his constitutional team excuse me framed his constitutional claims in terms so particularly as to call to mind a specific constitutional right which satisfies this court standard under wilson further mr swenson references the very phrases of the federal constitution and his claims citing to the due process an equal protection clause is and claiming that the wisconsin department of corrections way of administrating the earned ro acted as an ex post facto law and so any conclusion that mr swinson failed to properly raise these constitutional claims must simply ignore the plain text of the documents that he submitted before the supreme excuse me before the state courts as they explicitly reference these constitutional claims is that enough just to say my due process rights with respect liana no it's not it's a combination of both pleading constitution federal constitutional claims and the underlying facts surrounding the case however because mr sherman since claims before the federal court were held in its agreed they did in fact raise these federal constitutional claims and they involve the same underlying facts it stands to reason that when he put those same facts before the state courts and in combination with citing directly to the explicit language of the constitution that he does and didn't fact sufficiently raise these claims in the alternative your hono even should this court find mr swenson's claims procedurally defaulted it should nevertheless excuse the default in order to avoid a fundamental miscarriage of justice as this court is held to be the standard buyers the passenger your honest while traditional is corpus petitions are held to are rather traditional b b s corpus petitions seeking an excuse for procedural defaults are held to an actual innocence standard it's bears mentioning that such a standard is in a political in this case as mr swenson is not challenging his underlying conviction instead this court should evaluate the fundamental miscarriage of justice issue in light of the specific facts of this case including the charges against mr swings in the reason for his incarceration his incarceration and in light of this court's precedent u s p schmidt's it's the facts rather than the length of incarceration that matters for the purpose of turning white collar crime one of the things you raises exclusion from the drug rehab program yes you're on it and did he have a drug problem respectfully or on of the record is not entirely clear and that's in large part because the wisconsin department of corrections never conducted an evaluation of mr swenson for eligibility for this program nevertheless it found it they did decide to wait list him for the program presumably acting upon some underlying him to show that he did meet minimum criteria for participation then it summarily removed him from that wait list without hearing or explanation wasn't there a change in the statue a couple changes in the statute first was for alcohol or drug and alcohol rehab then it was broadened substance of the of the program have remained the same and mr swenson's challenges to the decisions made by the wisconsin department of corrections and their officials in the administration of that program again which is not change throughout the world but ok so the theory is that he has a protected liberty interest in when he is declared wait list eligible that range that's correct your honor  you for a program that he might or might not ever get into and might or might not ever complete successfully right respectfully or on a heap it's the economic position that he was in fact admitted when waitlisted he was we merely awaiting his his next evaluation at which he is summarily denied access to the program so i guess that seems like a pretty tenuous claim of entitlement to liberty respectfully  on the waiting list for this program or you might be able to earn this this earlier release sounds a little short of an entitlement to me but i'm respectfully and it's not merely that he was told this just once and asked to participate in the program and this was the response of those wisconsin department of corrections was to hold that regularly let me put it this way what's what's your best support for saying that this sort of sentencing inmates for immediate mandatory release and that further his his liberty interest in this matter was increased when the state further decided to place him on that wait list and that at that point in time it was no longer  merely a hope for that for that participation in the program but it became more actual ised and not one which could be taken away without due process of law thank you go in there to there's generally when you have these programs to address a condition proble and that's what i mean you know you know they've to offering this program for you know wouldn't you switch back and forth but but you don't even know if the record shows that he had a drug problem there is yes he had a big reflect at his sentencing hearing mr swenson was encouraged by the sentencing judge to participate in certain programs available within the wisconsin department of corrections there's also testimony by a family relative at the time that might suggest that he was suffering from some of some underlying issues spend somebody else's money you know a program something that osa is going on internally any one of those he would have traded into because that's going to your timing is absolutely honor and mr swenson has completed a number of the programs available to him within the wisconsin department of corrections he's even applied to ones that he is statutorily not eligible for however the current release program is not one of those mr swenson meets the eligible criteria and he was denied nevertheless so diligently ones that he's taken were not please to court there are two major problems with mr swenson's position here number one despite all of his pleadings all of his affidavits in every court in the state of wisconsin and in federal court he has yet to allege that he was suffering from the sort of alcohol or drug abuse that would if and allowed him to participate in whatever program whether we're talking about the pre amendment of three zero two point zero five or post amendment that statute was always directed at prisoners who are suffering from substance abuse and it applies to those who successfully complete treatment the second problem is that we're focusing on the denial of parole mr swenson never directly challenge the denial with his parole in february of two thousand and ten parole was tonight he filed in ministry of appeal which was a night but he did not go into circuit court rather it was only after he was denied reclassification from minute next medium to a minimum security at the end of two thousand and ten that mr swenson not only s review but then sought review in the circuit court for dane county and it was there that the circuit court tried its best to decipher his many claims and ultimately concluded that the claim that survived was whether it was arbitra for the program review committee of the parole commission program riki view committee to deny him reclassification to minimum security the court held that it was not arbitrary and capricious the wisconsin court of appeals affirmed again having to wade through all of the many confusing claims that he presented before concluding that the one that survived the one that was sufficiently articulated was the reclassification claim the record completely contains a motion for a rule twenty three a transfer that we filed a year ago that in the district court allowing mr swinson to be transferred to an institution that where he can speak to serve his needs as a reclassified minimum security community based prisoner so he's actually received the relief that he requested long ago which is he is now in minimum security and has been for quite some time and moreover in community release he's actually released into the community on work release and so did some kind of a halfway house whatever and it's been referred to he's still in the in a and i'm going off the record here but the institution he's now in is called hope he'll so he's still under the supervision of that particular institution i don't know the specifics about whether that properly preserve his could you fairly present his claims of state court mr swenson couldn't just say i was and i do process equal protection ex post facto first amendment whatever which he did he had also present the operative facts the operative facts are all over the place of the facts in support of the due process claim which i believe is really the only life claim left here if any at all and that is on page the document one page seven of the of case four eighty four in its underground two of the petition and i just didn't bite the court it's paragraph one pages seven and eight actually i invite the right the court to read them see if that coherently sets forth an operative state claims that he presented to both of us got support of a pair the district the circuit court rather and the wisconsin court of appeals and claim six is the only thing remotely resembling a due process claim and there's nothing in there about being nothing in that claim or in the statement of facts in support of the claim to in the petition about any sort of weight listing any sort of entitlement to release what rich what this really boils down to is his disagreement with how the legislation section three zero two point zero five has been interpreted implemented understood by the state courts understood by prison administrator as appl inmates and he and back in two thousand and ten which is really what at bottom become matters of state law as a statutory interpretation because he didn't really didn't coherently present his statutory administrative rule claims to the state courts that those were never reviewed and there really is no valid federal claim left mr o'brian if if you imagine another inmate who's in this p program not get off the waitlist is in the program and is one day short of successful completion if he were kicked out of the program with one day to go with there be a potential due process claim there on the theory that that he that he can't be denied that opportunity at the last second because there is a an entitlement for immediate release if he's successful he's successful but if he with one day to go took heroin then i think he'd have a hard no i'm sure but what if there's a factual dispute about whether he did it or not he's found in possession he says it was planted on him by another inmate who knows would he have a enough of a liberty interest at that point to have an opportunity to be heard with the risk of going to future litigation which i would hate to do i because the statute has mandatory language i think he would have a pretty good argument that there  procedurally defaulted because he did not present both the controlling legal principles and the operative facts in support of those principles but in any event there was there was no due process violation because it was no direct challenge to the parole commission's decision and he has never proved or even alleged for that matter that he suffered from the sort of substance abuse issues that would entitle him to participation in this program with that i will conclude my pled the government in this case is sort of conflated those issues as reclassification to minimum security is a requirement for participation in the e r p these decisions were made contemporaneously and again the operative facts underlying his claims did not change throughout his  his original offender complaint through to the district court where it's agreed he didn't fact raise these constitutional claims further your honour's with regard to the due process claim that he has weathered what process if any he was given before being removed from the program not whether or not he is in fact a drug or alcohol abuser but whether or not he was afforded an opportunity to be heard on the matter before he was summarily removed from eligibility and so for the foregoing reasons we respectfully request this court reversed the decision of the district court thank you thank you very much mr mchugh we appreciate your willingness and that of mr palmer and the clinic of notre dame to accept the appointment in this case and the assistant you've been to the court with your client cases taken under advisement on the court will