joins there that does provide an exception because it's normally and that exception under the statute again is where the gravity of the offense shows that public safety concerns require postponement of the setting poor old bait i e where the prisoner is shown to be continuing risk such that again in a regulatory language he would present an unreasonable risk it's released on parole  board to set rules to implement its statutory command that prole be the rule and denial the exception and this is not the board so the board's rules mention that fact or the board's rules say that if there is especially if the crime is especially heinous atrocious or cruel that that is a factor that weighs into the determination of whether the prisoner provides an unreasonable the overarching consideration the courts have made clear though is that while that the factor that you would have to show that that risk represented by the offense continues to was undertaken here by mr mostly in his companion you would have a manslaughter so we have a murder and you're right your honor it's not particularly substantial provocation but long as you've been in prison now he no longer has he been and has been in prison now something like fifteen years but we are talking about the initial hearing and it's statute that says you're entitled to day at the earliest possible time this was a remedial statute designed to provide for the early setting of a parole release date so that you would have predictability and uniformity of prison terms guy who's yelling racial epithets at a nigger and also wielding a golf club and so they do act rationally and jump in the car and proceed to to  does the actual shooting and whether there was any intention even on his part to kill two of the shots go wild when one does hit so that mr mons b has his conduct you if you're trying to gauge the potential danger he presents by determining whether he nice his conduct has been not only heinous atrocious and cruel but especially heinous atrocious is otherwise arbitrary and that's where the second facet of mr most peace claim is because independent of the question of whether there is some evidence the board has acted arbitrarily because his claim is that this language where that sets up a program as the rule at the initial hearing the parole board arbitrarily disregards that statute in every case i understand you're making that claim i don't want to boom stand someone's well especially heinous atrocious and cruel crime compare it to mr mosley who's driving doesn't even do the actual killing some provocation obviously it's insufficient to justify the crime or or necessarily substantially mitigate it but it withdraws it from the notion that this is an especial as normally yes but what that means or it doesn't necessarily apply to any one case it doesn't give you as an individual right it may be that of one hundred people fifty five or sixty or thank you ok just functional this case and the hundreds of similar cases pending in the california federal courts should be about whether federal courts have any authority to review the evidence or sufficiency a mistake parole decision following not have in that sense an intervening supreme court precedent that would permit us to disregard other circuit precedent so does that mean only an end i think we have to follow i or even if we think there's tension within there's a lot of so what might be helpful just tell to let us know whether we have to grapple with that issue of the nature of the crime fact that he had not gained additional education degree at this stage and th social history of escalating crime this time like he's no evidence he's doing terrible things in prison right so why don't you review what the evidence is that would as any violent crime can be not to minimize it but you know he has to fifteen years in prison so it's not like he's asking to be let go with no that should matter in the federal courts even under the some evidence standard of review addressing you to those issues is a very weighing of the facts and the evidence and that is not proper even if some evidence is the standard  probably did the closest review to hell that we've seen in a lot of federal courts in sas what they really looked at was whether or not the board exercise discretion and and finding the time for did exercise address that but even under the hill some evidence standard that standard is only whether there is anything supporting the decision and looking at the facts of the crime deciding whether it's heinous looking at a spectrum of severity or gravity is exclusive jurisdiction of a parole board and that it's beyond the authority of the federal courts even the consider whether the evidence whether whatever evidence that was or no evidence is sufficient you say we have no authority to consider based on the fact that some evidence is not clearly established in the context that is that is true even though under some evidence that  arts weapon i'm not sure what they call them none tax i think number shocks yeah and so there is evidence in the record of escalating criminality you know first making a deadly weapon then whatever other problems there were and then the shooting so i mean you have you have some evidence in this record i would think that you could argue so i am not sure why your position is to not argue some evidence there is well your honor we believe that the record is clear on th prior pattern of violence and what we have here is a minor criminal record as characterized by the counselor in this case and you can find that in the acts of service record at forty six free you have the psych saying he stands above and beyond the normal prisoner in terms of his maturity and changed since the a stance i think the best argument that can be made is the one that judge friedman made but it just doesn't the level your honor of especially heinous atrocious and cruel because just because this is not the most mitigated murder doesn't mean it fits within the exception and the bottom line here well enough counsel might have such an obligation you had to have some basis forty characters make an allegation and they say what what basis do you have to say oh i'm waiting for discovery to see if i can prove it i mean you can't just make an allegation that regarding its law what's the federal authority that would say that jeffrey doppler in that setting would get relief i think at the pentagon i'm not i'm not equating your client with jeffrey parole as a matter of law because there's an arbitrary disregard and nobody's getting parole but it that would be released and that would have to be fashioned by the district court that requires the probe or hey start following the law start normally granting parole and consider mr most be under under standards that does pay that do pay due regard to the statute that would be one type of relief it would seem like that might be it or cross over your honor but i don't think the defendant is or the prisoners precluded from haiti's relief that would be flexible and sufficient to address that due process violation by a civil rights action would be an a lternative way to go but all to ultimately the argument is if belonged was followed mr mostly would be granted a parole date and would have a uniform proportionate term set for him as the legislature invasion so if