has refused to set a parole day for him in accordance with law and has done so in an arbitrary way that violates the united states constitution that was his claim in two no because it's still there it's the point is he is still being imprisoned wrongfully without a parole date it hasn't gone reason really why the court should find that i mean there's a little tension here between speedy relief provided by federal habeas corpus and what do you call it deference to state authorities giving them the first chance to correct well isn't what you want remain and and you then want to exhaust what you have the new things that you have to exhaust and do it all together right so that it's all i would do that if i had to hasn't given me a parole date i'm entitled to a parole date and i think all of the evidence can be brought to bear at that point in time because he has exhausted that  exhausted what happened since you know what happens and i know that you're saying he doesn't need to that he can do it all together but if for example we feel that he does need to exhaust what has occurred subsequently then you would have to developments and then has it all her together i don't think that should be required because the federal court will never catch up to the current situation that way but mr price did fairly give the state a ch the governor has never given mr price a date that has vested that's a valuable right a parole date your conjugal visits with it you have the prospect of release you can get your custody minimized the whole idea of the california law says give a eligible prisoner a poor old date when he first comes up for parole unless the parole authority determines that to do so would an unreasonable risk because it's good for a prisoner to have a parole date a definite time when he knows he's going to be released instead of this kind of random this that goes on when you forever and ever deny a parole date and  parole date in hand and of course we know if that constitutional violation had been remedied at any time he would have been released in two thousand and one because that's the parole going back to your original question your honor of capable of repetition yet evading review that's what we've had here we have a record that shows that mr price is now being that i probe by the throat board repeatedly mr price should not be entitled to a parole date when it's a single act of criminal violence in its entire life when he has no criminality at all but a driving under the influence of friends when he had no juvenile record when he was in the service for many years when he raised a family and was a conforming contributing member of society when since that offense he has spent twenty years in prison without a single disciplinary violation when he's that single act of criminal violence in terms of his alcoholism so that he has done and everyone has agreed that he's done everything he could possibly do in the prison to show that he and he's been suffering from that constitutional violation at least since one thousand nine hundred ninety nine and we're in the year two thousand and six now and i think it's proper for the federal court having given the state the chance weigh in and cure that constitutional violation to now say we're going to look at this whole situation and provide you whatever relief is appropriate and necessary at this time to cure that vallance have your time because i would like to hear what they have to say on the show and that will give you more time to respond to that because we do know the underlying facts that you're going through at this point  and by the board of prison terms no were parole hearings finding mr price unsuitable for parole having subsequently obtained a decision by the board finding him that decision the ninety nine decision was super he does still keep coming up what he says i mean these things do return like a bad penny i mean it doesn't you know people are going to keep trying to get paroled until they get paroled or you know or otherwise so it does seem to repeat itself and if it's let's say that you he then you know he has this this decision here where t c challenging the merits of saying you know that that obviously i mean a lot of people on motorists don't get out of parole on parole and they're never going to get out of parole he percents a little bit of a different situation in that he had a fairly law abiding life he has to situate you know i'll be you know it's i don't want to minimize to a victim whatever the crime is but i'll be there's a situational you know he has a beef with this landlord and all of those things you know how is he ever really going to be edible to deal with the merits of what happened  mean i don't know to me if i were sitting in prison you know the good news is you get parole the bad news you get to stay here you know that's i think that they really want to get out that's understood your honor but the process in california allows for the governor to exercise a separate constitutional and statutory authority the board's decision that was challenge has been relieved by the two thousand and three decision finding him suitable mr price needs to do now is challenge the governor's decision and give the california courts the opportunity to determine whether governor schwarzenegger properly found a basis to deny parole if he's successful in that endeavor he will get the relief he will be able to set aside a gubernatorial decision decision that's keeping him in custody presently and that's the distinction he's gotten that's kind of a parallel track in other words apparently they have to separately challenge what the governor does is opposed to what the board  is apparently challenged at least to some elements of the california's interminable system what what the governor did but no final decision yet from the california supreme court but in the meantime ninety nine decision there's a good argument that it did it seems to me then the governor unmuted it by by scraping it aside and says hold it here's here's what's going to happen you get no relief in the meantime the board goes back to its schedule and then not five says no date so why in there isn't thirst something for the district court to get hold of regardless of what happens in the california supreme court and and run on parallel tracks because your honor it is still the governor's decision that is keeping him in custody governor has a separate basis for reviewing the record and has held by the california supreme court rosencrantz the governor can look at the same same factors in assessing an individual's suitability for parole and the governor has a separate authority to reverse a from or modify that decision and the governor's decision was a never read issue in this case the state needs to be given the opportunity to fully adjud the governor's decision if he's successful anything that happened after the governor's decision would be irrelevant so it's the state's position that the governor's decision is a separate basis and to ignore the fact that the governor says the governor decision is separate would be to ignore california law which contrary to mr price's position sees the governor and the board as having separate authority and having separate bases as for defending their positions moreover that would also undermine the  it's my understanding having checked the supreme court cite that his supreme court petition is pending but again that that goes to one of his arguments here he attempts to conflate the governor's decision and the board that describing them entirely  state when in fact they aren't which is why they've sought to challenge the governor's decision separately they need to challenge that decision they can't ask for the district court matter to be stayed in abated to challenge the governor's rights when the board subsequently found him suitable for the board's actions have been corrected a subsequent decision by the governor reversing that is a separate injury to mr price and he needs to follow through and challenge that one fully of the principal things that is looked at is the timing in the gravity of the offense and the offense would have been that much further away at the time of this hearing i believe this was only the third suitability hearing so a subsequent board can find him suitable and in some circumstances impression of mr price when sitting across from him at the table it may be that they looked deeper into his record it may be that what also sort of lends a little credibility to the fact that after if you know that the governor's supergirl to parole decision you know what's the point to give and someone parole you know i mean we're talking about this is two separate tracks which they are set up is to separate tracks that you know if i were in a perilous position i would argue that that that subsequent hearing was somehow you know tainted by the fact that they already knew that the governor was going to jump over him so why now why give them a date state officer have to be assumed to be following their constitutional and statutory duty to comply with the law and get the and make the individualized consideration to it she's entitled there would have to be a showing that there was some bias in there certainly not in this record if i could focus the court not on a challenge to us pursue the civic action of of the state parole authority you know there it's multi headed it's the governor it's the board they're acting at different times but focused on the allegation of either legal restraint they responded in this case the warden is either legally confining mr price because he's confining him with out mr price having and the mood is argument i think probably goes away incapable of repetition and evading reviews so the fact that he gets a different decision every year doesn't move an earlier decision you can still reach the earlier one but the ninety another way that i think what's before the court is the question of whether mr price has been it's being unconstitutionally confined because he's been arbitrarily denied a parole date with this bill but as of a given time in other words you have to look at the facts and he's got a dynamic situation and he's going to wonderful guy in prison to get another way back when and every year he looks a little more shiny but you have to pick a point in time in which you then let me make an analogy to what mr price i think is in the same position as some prisoner who files a petition for writ of habeas corpus complaining about unconstitutional confinement because he's a guard who comes into his cell every day at three o'clock and that goes on for a long period of time the state court lets it happen it gets into federal court and either that fellow loses his o'clock and i cannot believe that the law tavi as corpus is such that it's going to say well this whipping that took place by sergeant jones is moot now so we're going to dismiss that case and if you're complaining about being whipped by sergeant smith you haven't exhausted or your state remedies we have to defer to the state on this and see if the state because it's a different face behind the constitutional violation is going to remedy this and maybe some years later you can come back to court and the federal hate the is will provide you speedy any effective relief from your whipping every day all right well i'm going to that i'm your of your time by two minutes