morning may please the court my name is david porter i'm an assistant federal defender from the eastern district of california and i represent the appellant warren david rhodes what happened to mr rose in two thousand and one violated a most fundamental principle of justice what happened to mr rose in one thousand nine hundred ninety nine was that after a trial he was found not to be a sexually violent predator less than nine months later he was charged again with being sexually violent predator and after a trial in which no new material evidence was presented he was found to be a sexually violent predator because the trial court failed to apply collateral estoppel now the district court in its findings and recommendations on page forty which will find it excerpt from the tab six of the excerpts of record so that it would be inclined to apply collateral estoppel if the earlier finding was that there was no mental disorder but that in this case it would not well that makes no sense whatsoever all elements of an  inconsistent with federal law and i guess my question is have we ever held that there is a constitutional right to collateral estoppel approach this court the ninth circuit has not held that your honor but as far back as one nine hundred seventy seven the massachusetts supreme court in commonwealth versus travis which is a three sixty one northeast second at four a one said we conclude that as a matter of fundamental fairness under the due process clause of the fourteenth amendment a finding that an individual is no longer sexually dangerous must be as immune from that we have that word from the supreme court really well i disagree with that you're on that's not what twenty two fifty four d says twenty two fifty forty says that federal hate us relief may not be granted unless the state court adjudication is contrary to or not a reasonable application of federal law as determined by the supreme court of the united states you know this court has said on numerous occasions that doesn't i mean you have to have an identical situation in the supreme court to apply and there's justice o'connor setting williams versus taylor there are cases where the state court on reuse notably fails to expand the supreme court holding two cases where it should apply sort of your right and what's the closest u s supreme court case to this kind of a factual matrix well we have we have many supreme court cases talking about how collateral federal law in the case of ash versus when seen in one nine hundred seventy the court says that collateral stoppel was first applied in civil litigation before it was applied in criminal states supreme court where it said it is a fundamental principle of jurisprudence arising from the very nature of courts of justice and the objects for which they are established that a question of fact or of law distinctly put an issue in directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties and it says the principle is as a political to the decisions of criminal courts as to those of civil jurisdiction so we have cases going back to the early part of last century saying the collateral estoppel is firmly established federal law so the only question i think is reasonably debatable here is whether in the words of justice o'connor that very firmly established federal stunned that case has never been decided by the united states supreme court but certainly the many supreme court cases on shackling can be applied to this new context and it's not surprising that effect collateral stop there were new no it wouldn't because there were only new facts there were not new material facts in the district court if you look at the district court's very thorough findings and recommendations magistrate judge mold compared the one nine hundred ninety nine trial in the two thousand and one trial that the testimony of the two trials and said that the doctors testimonies paralleled the earlier one nine hundred ninety nine testimony when the new evidence the profile ation was mentioned it was mentioned only in passing in the words of turner those doctors did not explain whether or why that new evidence was material to finding that he was now a sexually violent predator when only nine months before the petition was filed he was found not to be so there's no doctors in the doctors though we're saying that the nature of the parole violations indicated that this the doctors did mention that dr jim the doctors did mention that in passing and it's important to focus on what those two violations were not keeping a log and which he admitted and proportionally to speaking that this is a case on direct appeal and that there was insufficient evidence for the jury to find that he was sexually violent predator well i mean even even if the court credits those findings and i think the magistrate judge does their job in saying why it shouldn't be credited by this court the issue is whether the person is likely to engage in sexually violent criminal behavior and the statute and under roe bearish than the california case it says that the defendant mu present a serious and wealth around at risk of committing sexually violent crimes if released so how is it that nine months prior to the to the time when it's when this subsequent petition was filed he was found not to be a sexually violent predator how could the fact that he failed to keep a log book failed and interesting things in the law books and it may be that he was seen talking to ten sixteen year old boys constitute a serious and well founded risk of committing sexually violent crimes or for least i don't see that as being a reasonable interpretation of those those facts i just want to  briefly just the jury issue the jury instruction issue the supreme court in this case we do have very simple clear supreme court authority in hendrick's a page three fifty eight it says these added statutory requirements serve to limit involuntary civil confinement to those who suffer from avant volitional impairment rendering them dangerous beyond their control that was the instruction he asked for the trial court in clear violation of that supreme court  this crane change that many were cream which happened two years after this this proceeding only changed it in terms of saying you don't have to show he's totally unable to control his behavior but the control complete inability to control behavior as the california court instructed it it's likely to to be unable to control his behavior and that has been found adequate constitutionally in her  woman who had two young children two young boys he admitted that he did that and that he did not report that he admitted that he that he had lied to his parole agent originally and that was the reason his parole was violated had he not put himself in that position he would not have been in the position of having another petition made against him when he returned to prison the fact is that once he put himself in that position the state was well