of custody and as the supreme court has repeatedly recognized the statute does not attempt to mark the boundaries of custody and as prize are recognized in traditional function of the writ is  set of circumstances or a different set of facts that make it stronger than the past case because otherwise we're left with skinner versus dark and  would i would state that that both of the complaints that my client is making here which is that the he is in custody in the constitution both because he's been investment we can find in the shoe and also because within that language right you know where you're quoting specifically recognizes two cases johnson the avery and will wording be swenson and in both of those cases haiti is jurisdiction was found to be appropriate and the court instructive here because the facts are almost identical the inmate there was complaining about the unconstitutional process by which he was detained in solitary confinement and he was seeking release from that level of custody to a less  and also we can go back to cries or and this they specifically cite in re barner which is also very similar to the facts here where that inmate was in custody at a level that was inconsistent with this statute of conviction and he was seeking release from that higher level of custody to a lower level of custody within the institution so there is a i think there's a long line of supreme court cases that say that census is pace with respect to being released from the shoe to a lower level of custody within the institution is cognizable under hate years so that would be a strong distinction between this case and the previous case but also if we look at the issue with respect to her role in this case it is also extremely compelling and there is also a long line of supreme court cases as well as not circuit cases that would support this in those challenges where are the supreme court has said it's c there's a potential that the individual might get released sooner it is far more tenuous connection then it is here if we look at gaar law the fordyce in that case the individual was serving two concurrent life sentences and was likely not going anywhere anytime soon and that individual was simply trying to get an earlier date on which he might become suitable for parole and that's similar to docking which was serving one hundred years and was deemed a dangerous offender don't argue that one but ok then in terms of the designation of a gang associate under california regulations thirty three forty one point five that individual is deemed such an extreme danger to the institution that he must be confined and in solitary confinement now the only issue with respect with respect to released on parole is whether an individual presents a current danger and it is simply  argue that someone that the institution has been deemed so dangerous to the inmates and to the institution that he must be insults or confinement that a parole board could turn around and say oh well never mind he doesn't present a danger to the community if he was released that nless he is able to to get it removed and that is what he is seeking to do and that is where the harm is coming from now every six years he's up for assessment to figure out whether he gets out of the shoe or not but that doesn't determine whether or he seeks release from one prison housing unit to another within the same institution by challenging an internal discretionary prison classification cision held that the language opposing counsel cites johnson be a very great honor and and some criminal conviction his sentence did not allow him to be in the custody of the state so he was seeking there was a very different kind of release in that case the state authorities had no jurisdiction whatsoever to hold him so he was seeking complete release from state custody is a quantum change in the law of custody that was discussing parole for the difference in terms of being physically confined in prison as opposed to out on parole with a very different type of custody only constructive  custody that also is not analogous to moving from one prison housing unit to another prison housing unit which could also still be very restrictive apart from the shu there's administrative segregation level for institutions it's not analogous to the type of quantum it's based on complete speculation as to how a future parole board may or may not view him as a parole candidate so that as i have just in the argument that that the most important factor in the parole determination is whether you're a danger to the community and that the gang validation is based on you are a danger to the community and so so long as have validation is on his record then he will never be eligible for parole that as the argument as i understand it let's let's start with that argument what's wrong with that argument is that it incorrectly conflates prison management issues with the question before the board with the c d c are is looking at in terms of gang management is an attempt to prevent gang activity from  when they're looking at these validations and putting inmates into restrictive housing to cut back on their ability to communicate they're trying to take down a complete organization and breakdown its ability to function by putting them in these restrictive conditions it's not necessarily an indication that any particular inmate is physically dangerous but as is the gang validation it seems like santos is deemed and i think it's called a severe threat to the safety of others removal or the expansion of the gang validation not affect his parole eligibility his hearing on the board has discretion to look at the facts and determine for themselves how important it is or is not some of the game validation criteria here were things like symbols having contact communication for other people that have been identified as being associated with the gang a programmer could certainly look at those circumstances and find that they're relatively  regardless of the decision to house him in the shoe however another one of the game validation points here was a stabbing incident the board could also look at that and decide regardless of whether or not they think that's a gang related stabbing they could reject for themselves the idea that it's gang related so as to support a validation but still decided that the very act of the stabbing itself would make santos too much of a danger to release so it's not the fact of this validation existing or not existing that would control the board's discretion there was a recent california appellate case in randall blanc that's right somewhat analogous here in footnote four of that opinion the court was reviewing a parole denial and they noted that the inmate had a recent disciplinary or possession of a controlled substance and they brought it up because the board did not cite that disciplinary as a basis for denying this inmate parole and therefore the court noted that they would not consider it either just to demonstrate that simply because there's something negative on an inmate's record does not that correct and he returned credits at this point it's he's already had an initial inspiration hearing it can't be held any sooner so given what the commissioner should consider in determining whether one should influence how the board exercises his discretion the board certainly consider it one way or another appeal not it's complete speculation as to how it would weigh in with the entirety of his record spree incarceration the circumstances of his commitment offense understanding that commitment offense whatever else is in his post conviction record all of that discretion erodes that necessary connection to factors only if he brought on nine hundred eighty three action challenging the  has imposed and accepted the limited remedy that congress has said is available under twenty two fifty four and so the two statutes are not mutually exclusive and it does seem strange that that the state is arguing that this individual who has shown deference to the state and given the state is opportunity to correct the issue and accepted a very limited remedy instead of the more general remedies available under nine hundred eighty three that he could somehow be preempted by nine hundred eighty three that just