since we don't have a lot of time i sort of want to jump to the point you're taking the position that that in this case is not moot is that correct that's correct and  the exact relief that the state is seeking here i think if you just talked about that you feel that judge carlton might be on the bounds of what he needed to do and that was going to non published decision correct that's correct collateral estoppel offensively against the government that's that's right your honor enemy the any eastern district specifically built the local rules allow for citations to unpublished just worried about that's right and and i think another consideration is this ruling is that two governors had unconstitutional policies it's an important decision i excuse it can i ask a question i'm sorry this case or an appearance of bias which stems from a cuny area or personal interest they would have had to present evidence to the area of personal interest largely goes to the appearance of bias that's i mean here we have direct evidence it's in the air we have direct evidence that at least one member of a board commissioner gillis was being influenced at least by what he perceived to be a governmental policy there is testimony that he specifically didn't know the law that he was going to commissioner gillis was that commissioners like himself reporting to lady and gillis who had law enforcement backgrounds were no more likely to hold unfair parole hearings so to the extent there might have been wasn't on the board evenly even if he makes remarks that gillis supposedly stated you're saying it should have been believe that it should have been accepted but you know i keep coming back to the district court that's all it had before it so was it clear error for the district court did the district court have a duty to ask for more evidence the district court erred in making any finding regarding the ninety five hearing because none of the avenue if the thickly addressed the ninety five hearing member the evidence even mentioned shuffle and van court the two other commissioners all at that hearing who comprise the majority and other evidence indicated that commissioners such as gillis and specifically gillis were not biased and were no more likely to hold unfair parole he with regard to gillis it would be error to conclude that he was biased because mr levy gave affirmative testimony that he wasn't so making a finding of bias where he specifically said he wasn't b the court in mclintock on behalf of the petitioner remains in custody i think it's clear from your questions that all members of the panel clearly understand the clear stand as it applies to the question about this if the evidence is factual findings by the district court and i'm just going to go ahead and let me ask you to stand before you just before you say i totally understand let me ask you guess why doesn't the evidence just support that not we're saying the evidence supports a no parole policy some people back home how do i reconcile that you know well you have to keep in mind your standard review so the standard review is not that you would have come to a different conclusion based on the evidence presented to you if you were just  we know that it's and how do we know i guess what i'm saying is that i could say ok people got paroled because there were commissioners that didn't follow the no parole policy that would be the argument i guess i would make if i was in your level it doesn't matter what whether it really was their policy if it had the effect of the belief had the effect on the person or the group of people in their training in how they implemented the regulations in the statutory rules about discussing paro commissioners changed how the decision or review changed and all these pieces fit into a puzzle that demonstrated and i think there is certainly it's not clear that there was a no parole policy the fact that six people out of twenty five hundred might have gotten through the system doesn't show that there is not you know pro policy just shows as you mentioned that it's not always applied in every case with every rule there are going to be some exceptions even under gray davis there were some people who got out with it was just because of battered women board's appeal were moved what is your impression about what use can be made of the opinion below i think it depends i was moved if well moving is really brings up address that they don't have to risk having to require mr coleman to be released from prison enforcing the writ that was not complied with and still get to overturn the underlying judgment that they didn't seek a stay for that they're going to having and complied with something is a logical matter you have to address whether the remedy the conditional writ was complied with if you conclude that it was not complied with then you can address the substantive appeal on that they've raised is there sufficient evidence and i think this given the clear error standard any one of those simple pieces of evidence is sufficient evidence under that extremely deferential standard of review let me ask you that let me just go to the direct question  burden to show sometime if they show evidence to show that it has been complied with and i think we met that burden kind of goes back to the net it's akin to what the state is arguing about presumptions of regularity in proceedings we have a information we have about the ongoing governor review and the process and training of the commissioners but all of that evidence doesn't make a price a showing of some kind of bias that i think presumptive bias well what we have in this is where i think the clear error applies to judge carlton's ruling on the remedial motion is that we've got is the evidence before the court if you review the depositions and explanations of how board members and deputy commissioner training is that we don't have a here's the role it's very on the job training it's shadowing people around in order to understand what your job is and how you do it and so we've got we have evidence that when under budget that a member of the very forward review your clients of parole or any had been influenced by the policy in my view both of those problems are critical haven't addressed the finding with regard to governor davis it was error for the district court to make any finding regarding governor davis because no claim was presented in the petition and the petition to finds the claims that are properly presented in a hideous corpus action further no second the court did not focus on the governing legal standard and there was plenty of evidence before the court that indicated that many hearings during the wilson in ministration were unbiased and i think the board is entitled to a finding based on the governing legal standard and based on a proper application of the evidence even if to because of the finding just caught me again because of the media horder there's almost like a presumption you know that just my state continued on into the new hearing and once you make some kind of very administration pressured the board to be bias not the boat board was biased on its own and once those administrations are no longer in existence there is no evidence and there was no finding two to conclude that the source nigger's administration was biased the issue was did the district court based on the evidence before it with regard to coleman's motion make the correct ruling cor control the timing of his motion and he admitted we presented no evidence to support it are on that all on on that basis the district court did not air and denying a motion that was unsupported by any evidence now coleman may argue well the district court does not excuse me the board did not allow us we asked informally for information the board did not provide that well there's formal discover procedures and this is formal litigation they control the timing of their motion if they believed that they needed evidence to support that they should have requested discovery through the district court but they should not get two bites at the apple all right  available regarding the two thousand and five remedial hearing the analogy that i'd like you to consider and i think this fits although there are differences about it if you've got it in ministration that is biased in the image of the person history and from my life experience that you need the came to mind when i was thinking about this too other days george wallace standing in the university of alabama school house gates saying you know trying to enforce his inaugural address about segregation now segregation tomorrow segregation forever those informal policies those formal policies that mindset still exists and lets the people who are making the line decisions are retrained or formal staffs are taking take strongest evidence you have seen those pointed out it was it was over but it is a challenge but what if any and i keep asking this question i don't think i saw anything on the record others there your position that a policy was implemented during those two administrations and that somehow we have to presume it carries on was there any specific evidence that either of the two commissioners at the two thousand and five hearing was in any way biased against your client or against granting parole  to statements or admissions from specific commissioners is not what his claim was about it's not what the judgment found so i think the analogy to the racial context has some force to it the only other evidence that we have about th revealing at the july two thousand and five hearing deputy commissioner richard made the comment in her closing remarks about unsuitability which she just volunteered that i what i don't understand is why the board did not respond to the december two thousand and four findings recommendations if the if she knows what that is is evidence that no one has come to her and said look this is the proper way you're the regs but you have to look at is a linkage between x y and z factors in person's current dangerousness and you have to put aside the presumption there's not a presumption of x y and z there has to be remedial training her statement shows that there was nothing there was no response and if you know the question