of course before the court is whether this action is moot because the commitment that mr rose was in custody under the two thousand commitment his second commitment expired  by the time shortly after respondent filed its original brief in the district court if we were to grant the relief that you see what specifically aside from just a straight release on what grounds would you urge us to release mr  new proceeding or to correct whatever your right is or you must release them but the maybe let me ask my question a little more clearly the supreme court cases in analyzing movements refer to whether or not there is any effect of relief that the court can order in in assessing whether or not the case is moot and my question for you is what is it that you are challenging that we could effect hill and in order to prevail on your constitutional arguments as i understand your reasons i think spencer vs ken which is the court of course the case they probably are primarily rely on is easily and remarkably distinguishable it boils down to the fact that and spencer versus canada the petitioner was on the streets he was out of custody and the only thing he was challenging  is unconstitutional because the statutes around lawful the state would have to eventually release them even though at the moment the commitment that he was being detained pursuant to has expired since he we didn't brief the merits of the underlying claims but he's actually asserted both facial and as applied it would be the basis for holding unconstitution judgment from this court was short of declaring the statute unconstitutional on its face with the judgment of this court have any effect prospected flee in other words to keep the district applied to mr rose i think in either case those issues with the rest of the caught between mr rose and the state of california so that any s it would depend on what the reason was that's what invalidating the application when you that's right if it wasn't as applied ruling saying the statutes unconstitutional as applied to mr rose then it would depend on what the grounds for the subsequent commitment are which really gets back to the question i asked of you earlier and i'm not sure you really answered what you know other than a constitutional check attack on the statute itself is there any  equal protection challenges to the statute facially and as applied to him he's made a claim that his particular offense the manner in which is particular that's right your honor i agree wholeheartedly with that statement somebody can ruin it i think that in fact i think it's somewhat ironic that to say that mr rose doesn't have a live play and that he doesn't have a personal stake in this case with each passing year that he spends in custody i think quite the opposite his stake in this case only becomes and greater and he has more of an interest in the outcome and having it fully and completely litigated council have how do we deal with the fact that the statute offers the possibility although it may be remote in your client's case that at some point he may be released the under any circumstance that really was the concession i was looking for that the question i was wrestling with was an analogy to the supreme court cases where they talk about the fact that for movements purposes we can't  there was initially as i understand it a probable cause hearing then there was some case law that came out in the trial court vacated it's probable cause finding in the meantime the two years was coming up again and santa clara da father court petition to extend its commitment those cases now been consolidated he has two civil commitment proceedings pending as we speak and he has probable cause hearing that in july and august the summer on those on those proceedings and it's interesting your honor if it's and this is clear from the record if you look at the exhibits page one of the appellate excerpts then try to make a lot of the fact that these are separate cases these are separate proceedings in fact there's been one case in santa clara county and there have been three sets of subsequent petitions filed in that case there's one case d theory i think in a way these are separate commitments but in practice the way it's been handled in santa clara county there's been one and tenuous civil commitment proceeding that's my client and the last time the jury looked at in two thousand i forget the precise month there was probable cause finding initially on his third the third petition first commitment and that those findings were vacated by the judge after a supreme court case they have not sent and there's not since then another is he still in custody and i don't have a good answer to that quite honestly i think if that's truly the state of affairs and i have to represent that this is all hearsay to discussions with this with the trial counsel i don't have all those documents he really didn't have any answers as to why he's still here now i'm told that the counties are getting quite backlog and it's quite common actually in santa clara county for there to pending petition which is not then resolved and another petition is then filed at the two years and then they're consolidated because they still haven't resolved the first petition there's a number of those consolidated cases ar i think one of the things that strikes me about this case is there's no there's no real supreme court cases obviously having to deal with civil commitments but the closest to me was the tech decision which had to do with psychiatric issues the petitioner was incarcerated in prison and because of psychiatric issues transferred to a mental facility and the challenge that behind the civil commitment proceedings is that there's an underlying psychiatric issue which is not going to go away it's not going to resolve itself absent intervention and  capable of my incision in the unavailing review exception he said in his written order that there is no basis for concluding that he has to have a chance to have federal review and that's not what the supreme court said in the national bank as well as this court's prior cases the relevant tribunal for purposes of calculating the time period is the ninth circuit or the supreme court i don't even think the district court counts and i would no twenty three twenty two twenty three months just to resolve this in direct appeal and then he still had to go to the california supreme court and then the district court you know there's no precise time frames in which the california court of appeal has to rule on basis of a factual determination that occurred in two thousand when the statute assures him that the commitment will last no longer than two years and then he has to be the subject of a renewed petition and another jury determination that his dangerousness as a sexually violent predator continues and i appreciate the fact that the trial court calendars are crowded but i'm concerned about holding a man for four held as a result of that but those are orders that are separate from the one that's here and he's being held there not because of something that was done by the v a or whatever that we don't know exactly what happened  held and neither of you can tell us by what authority this person is being held maybe this is an appropriate case for the issuance of the rape if for no other reason than to require the state to establish the lawful basis on this man continues to be held in custody but he's not that petitioning it based on the fact that he's being held right now on some subsequent petition he's basing his petition on the fact of an order that expired two thousand and  to produce the evidence nationalist to show what you know why he's being held i mean we don't know that and we can't speculate as to that now he's saying that you know there is a live case of controversy in this case and in his brief attacking the facial the liberty of the act there's nothing specific or unique about that suggestion as to him and the federal district courts have repeatedly and consistently issued opinions finding valid yeah and his case the judge says this is unconstitutional and it becomes final goes through appeals or appeals or abandoned it's it's kind of between the two of you and the state and him right and he's going to be able to when they say well you're still here now we're going to bring another act we're going to bring another case to put you in for another two years and it is very same statute but  there's no time limit on those other than maybe a reasonable time i had some of those cases here where the psychiatry just were taking too long to get back to them with their reports and so on but this is what's happening in this case knowing there's no indication there's any fault on the part of the state on part of the task if their own terms are prolonging the case i can't you know say that if you at least get through the full of holes at state review that you really feel also need to exhaust federal collateral remedies it would be my position that they does not include federal