favor saying that the conditions of confinement were unconstitutional due to lack of treatment and it was one thousand nine hundred four when the district court judge dwyer entered the injunction it is now two thousand and four s remains under injunction conditions have not significantly changed as found by the district court and as banned by this court in the state's appeal of that order in that context we are raising three claims and proof instruction and a claim about the conditions of confinement let me begin with the burden of proof instruction although of course i'm happy to answer questions and any of the other claims on the burden of proof instruction error you look to the balance of the jury instructions to see if there's any other instruction that might have cured the error and that's particularly important in a case like this where the error is in the critical burden of proof instruction  error case and it's said that you look at the jury instructions alone and see if there's any other instruction that could have possibly cured the error because you don't know what the jury is thinking when they have all this different evidence if you do go to the evidence in this case i think that you will find that there was competing evidence on the critical question here the question is future dangerousness was he more likely than not to commit one of these crimes again the sta discussion they said it was important enough to reject an overturned preponderance of evidence findings and in turn was a direct appeal to believe sullivan versus louisiana the curtain of proof instruction case that i've given you is a direct appeal case also but i and i know of no hevia this case which allows a review of the evidence where the burden of proof possible jury couldn't stand on that materiality was not proved that was not a burden of proof instruction i think it's different with the burden of proof instruction but even if you looked at the evidence the evidence on this point that's correct even assuming that beyond a reasonable doubt standard gets you ninety five or ninety seven percent certainty you're asking the jury to get ninety five to ninety seven percent certainty of a fifty one percent proposition more likely than not and the cases that require the clear and convincing evidence standard require clear and convincing evidence on not just mental abnormality but also also future dangerousness so we know this case showing unconstitutional conditions of confinement it was made part of the superior court record in this case it was addressed on direct appeal it is a part of the record in this case it was raised as a double jeopardy eighth amendment and fourteenth amendment problem i'm not arguing the double jeopardy ex post facto issue for obvious reasons the fourteenth amendment and the eighth amendment problem were not dealt with at process having to do with the definition of mental abnormality they never addressed the claim that we're raising here and in fact the eighth amendment claim in the fourteenth amendment claim a very different from the double jeopardy claim the eighth amendment applie and the whole debate about what this is whether it was still a criminal is therefore relevant here same with the fourteenth amendment we know of course that the fourteenth amendment applies to civil cases younger versus romeo was the civil commitment  submitted this morning and from the regular sort of death penalty penalty phase eighth amendment cases like kolker versus george and detailing when that particular penalty is disproportionate incarceration has been at a prison in a prison like stepping without treatment under the fourteenth and the eighth amendment incarceration for civil purpose mental problem for civil commitment without treatment alone is punishment and since it is a civil case for the purpose of treatment any punishment at all is cruel and unusual punishment and just representing the respondent in this case this court review is limited by twenty eight u s c twenty two fifty four d and that statute prohibits the granting of relief homeless the state court decision was court's decisions in this case were objective lee reasonable a reasonable reasonably applied supreme court precedent and for that reason the district court promptly denies relief addressing the two issues raised on opening argument i'll start with the jury instruction issue just a court instruction complied with kansas versus sandra the supreme court in kansas versus hendricks said that simply commit a person if the person has been convicted of especially violent offense the person suffers from a mental abnormality or disorder and that makes the person likely to engage in predatory acts of sexual violence it's kansas first as hendricks includes the language likely to engage in such acts that is the exact instruction given by the trial court in this case the instruction to set out  excerpts the record for sixty two to sixty three and the state court repeatedly reminded the jury that the state had the burden of proof beyond a reasonable doubt the state had to prove beyond a reasonable doubt those three elements prior conviction of a sexually violent offense the mental abnormality and the likelihood or and the fact that men don't mental abnormality would make the person likely to engage in specially violent act the statue complies with kansas versus hendrick and started the instruction complies with qantas versus hendrix the state court reasonably determined that the jury instruction was proper did not render the trial fundamentally unfair likely is the standard the supreme court used in handor ex and other words that this mental disorder or abnormality makes the person likely to engage in such acts the state had to prove that element end of reasonable doubt and the jury instruction told the jury the state had to prove that it's not that far but that means you well your honor it's not that the person the the malady makes you beyond a reasonable doubt that you're going to commit these offenses that's not what the jury had to find they didn't have to find it beyond a reasonable doubt this person is going to go out and commit another sex offense they only had to find that it's likely that he's going to go out and commit a sex offense and that the state has to prove that likeliness beyond a reasonable doubt with that name i mean to a layman more probably the not so they would have to find the on a reasonable doubt that more probably or not this person would engage in such actions so where are we back to that that fifty one percent of ninety five percent or something like that it that sub element is more probably or not but the burden of proof is different than the sub element you have the l if you have an for instance in the criminal arena you have the elements of a crime and then you have the burden of proof and the burden of proof is beyond a reasonable doubt the elements of the crime may or may not necessarily be themselves beyond a reasonable doubt they may be a probability but  i'm i don't have one off the top of my head your honor but what i can say is bringing this back to what i opened the argument with this court's review is limited by twenty to fifty its own judgment disagree and believe that the instruction is erroneous but that is not a basis for granting relief it has to be more than erroneous the state court decision has to be objectively unreasonable and it is not because the standard applied a very standard set out by the supreme court qantas which is hendrix the supreme court may later change that ruling but that does not affect the validity of mr teresa will commit addressing very quickly the issue of harmless error the court has to look at the instructions as a whole and must also look at the evidence presented in determining whether the instruction erroneous render the trial fundamentally unfair and cost actual prejudice and that is the standard on hay vs actual prejudice not it's not the state's burden of proof it's not that the the petition is part of the first court looks at everything in determines whether there was actual prejudice the testimony you did have competing experts but you also have the testimony of the prior victims and as the supreme court indicated in kansas for instance hendrix testimony of prior acts i highly probative of the likelihood of somebody committing a sexual offense in the future so you aren't limited to just two competing experts you have other evidence and a light of that other evidence in light of the jury instructions as a whole invite of the state court repeatedly telling the jury the burden of proof beyond reasonable doubt there is no actual prejudice moving to the conditions of confinement if you as argued in the state's brief these claims are foreclosed by this course decision in young versus western both the one before and after the supreme court three men and this court refers to those young three and you and in the supreme court's decision in sealing versus john and the first young versus western young three a claim was raised of substantive due process based on the conditions of confinement this court denying that claim finding and unsupported by law that he she was not of that mr young did not seek review by the supreme court on that issue he tried to litigate the issue again on remains and in this court recently and i submitted a supplemental citation of authority it's young which is west and three forty four fed third at nine seven six this court refused to even address the claim saying that something of due process claim was previously rejected and i would point out that young was a three anti terrorism and effective death penalty act case so it was under the old standard this case is under the new stand even more than in the young case in trace case his claim fails because supreme court precedent does not support a subset of due process claim in this case and finally on the eighth amendment claim it fails simply because it's not punishment the supreme court has determined it's not punishment this court has to determine it's not punishment if it's not punishment it does not violate the eighth amendment is only avenue is as he has pursued filing a civil rights action to attempt to no you're on a first i strongly disagree with any argument that there is no treatment i think believe that the district court's findings in the most recent one nine hundred eighty three order show that conditions have in fact improved and that's why the court although sanctions are occurring has not actually ordered the state to pay the sanctions but the supreme court in kansas versus hendricks indicated you can even have a situation where no treatment is available so if you have a the test for punishment is the intent you facts test and you look at the intent of the legislature and then you look at the effect of the a fact it's just this court recognized and in the recent young case if you look particular offender you look at the statute and it's a fact that the statute requires in a supreme court this court is up have already determined that this statute does not impose punishment and that is what statute overall is criminal rather than civil we've lost that if civil rather than criminal it's done i have a different argument and you the eighth amendment and fourteenth amendment mr train has been subjected to punishment the supreme court did not address that stealing the ninth circuit did not address that in either of the two young cases the due process issue they addressed was totally different it had to do with the definition of mental abnormality and that's that on the conditions point on the jury instruction point let me quickly go over what the other instructions the argument and the evidence there were no other jury instructions to cure the problem here the elements instruction is what we've discussed beyond reasonable doubt and this mere likelihood the only other instruction on the point was the one that's to find likely to mean more probably than not so no other jury instructions  testify based on the evidence that it was higher than a more likely than not standard and if you look at the closing argument you'll see that the state exploited that problem by arguing that saw if you believe respondent is