is clearly established that custody credits are subject to due process protection that's the wolf this is not the full plan a plea of due process rights that we associate with the criminal trial we're talking about here is it is this mandatory is there a liberty interest right is now what we're talking about well this supreme court has moved away from mandatory in sand but this is a liberty interest because the  the credits affect the amount of time that the person will serve in custody you think that alone is enough to make it a liberty interest that's what will set it doesn't take much more than that but that's established that custody credits are protected by the due process clause right but but but but the question is is there a liberty interest in it such that he can get the kind of relief he's seeking well the liberty interest you seek custody credits in california are uniform scheme both granting custody credits taking the way and if you get the quote credits taken away if you're a good boy for another good prisoner for another year they can be restored so it's all part of a unified scheme and if custody creates taken away implicate the due process clause there's no principle distinction between taking the way and of an effect suspending them based upon the possibility that you may be compliant with the rules and regulations of the prison for a year in which case you get them back so i don't see the distinction i don't see i don't think there is a distinction and seems to me you're just assuming away the problem at l i'm wrestling with you got a district court case is exactly the opposite of what you're saying i mean the district court case in here you know a lot of ones too but the but the what i'm worried about we have cases that kind of go both ways depending on how they construe the regulations some regulations say may some say shall the question is is it a requirement and we've got this is this is kind of an eck were poised thing where the regulations say shall you know be specific in the statute because the regulations are generated through the ins the particular administrative agency or institution itself rather than the legislature but their effect the refinement of what the statute provides and well it's as you pointed out earlier it seems to me that the supreme court moved away from that view of things in sand  where the nice circuit says with respect to sand in the sand ins holding pertain to internal prison disciplinary regulations and standards holding was that the mandatory view that was set forth in guess was green holds was going to be limited and would not apply to internal regulations so i think this is i think it's a question of whether the statute is mandatory rather than whether the regulations are minutes well i don't know that the notes or sand didn't distinguish between a statute or regulation as being the subject of a due process protection i mean the point here is that credits are subject to due process protection the question is whether or not it makes any principal distinction between taking away credits and providing that they can be restored if the prisoner behaves himself well i mean as a matter of logic i agree with you that it makes perfectly good sense to try to encourage prisoners to be saved well so they can get previously deprived of good time credits back that make perfectly good sense but there seem to be a lot of exceptions and they and the administrator in i'm missing something here sand then said we're moving away from that as a distinction i mean it's personal it doesn't seem to make a lot of sense to me to decide whether or not something is covered by the due process clause as to whether or not i mandatory or voluntary because even if it's meant even if voluntary is abuse of discretion which is also within the the penumbra of the due process clause but the issue here is not is simply whether or not wolf clearly established that credits are covered by the due process clause which would include this is spend should have those credits based on bad behavior and the restoration based on good behavior it makes no sense to divide the baby here it's all one issue one concept one thing that is subject to the due process clause protections well i'm not sure i understand what due process violation h always some evidence made up to good enough may not be persuasive but there's a but here there was zero evidence it was just like this all the evidence pointed to the other person and the officer said he believed that my client was involved too but there's no evidence of that and this is what due process would protect we say you have to have some evidence and officers believe it is not evidence it is opinion and with that i'll reserve the two minutes and two seconds all right a petition for a state prisoner so it's governed by at and under at this court looks to whether or not there is clearly established federal law there is no clearly established federal law in this case while mr vickers relies on wolf and kill those concerned cases where the inmate possessed the credits he had a right to them he owned them keepers asked them and the state was trying to take them away this is different here mr vickers only had the possibility of possibly getting credits back he'd already lost those credits they were gone so he was seeking to get them the crimes he says that under the regulation  he had a right because the regulation is uses the term shall so he had a right to get those credits back under the very terms of the regulation unless  the exceptions was satisfied yes you are the regulations are by and an opportunity for a prisoner to reacquire those credits back but it's still just a possibility until he fulfilled the i thought the since the disciplinary infraction leading to the credit forfeiture and then there are various things refuse to perform work etc cetera so if the regulation is governing here it doesn't leave any discretion it says shall be resort unless one of those exceptions is met yes or no but it's still it's not certain it's not he's not what is the word shall mean doesn't mean that the prison authorities have the right to say you know the regulation says we shall do this but the heck with that  we don't feel like it today so we won't do it your honor it shall if certain conditions are met yes so what this goes to the question that was raised by you have asserted the end of his argument what was the evidence that he had possessed pornography or the like your honor of that whether or not there's some evidence supporting that disciplinary decision is not one of the conditions that are necessary before an inmate can get those credits back having a disciplinary free period or other conditions must be satisfied before an inmate is entitled to have those last credits at the time that he was at the disciplinary hearing and to deny him restoration of his credits no you are if ok if then then my question is in what way did he not satisfy the  conditions he did not satisfy the discipline are there the conditions based because he incurred a disciplinary infraction and the question the court is confronting is not whether this court finds that there is a liberty interest the question is whether the supreme court confronted with this same scenario has found that there is a liberty interest i understand that but i'm still asking and i'm pressing you because he raised it and i think it's relevant what any was there that he had not satisfied the conditions that the regulation prescribe as the only exceptions to the restoration of credits the condition is that the must comply with the condition that they not incur any disciplinary infractions within a set period of time and what was the disciplinary infraction that he  it was the nd disciplinary infraction where he was found to be in possession of up not to have what was the evidence of that evidence was there was information on the computer and that he was he was a user of the computer we seem to have a disagreement about the facts but let's get back to the law issue for a nd here you're part of the basically that the mandatory language issue is just not even a factor law for purposes of under supreme court in c and then turned away from the mandatory language task that had previously been the focus and instead looked at the nature of the right that was  something someone has and losing the possibility of getting what someone wants and understand and from your perspective what did the supreme court say is the new rule of the mandatory harwich to evaluate whether there is a liberty interest t he court would look at whether or not there is a if the action imposes a atypical and significant hardship on the prisoner and there is no supreme court authority that has held that depriving a prisoner of the possibility of having lost credits restored because there is no supreme court authority holding that there is a liberty interest in the possibility of having lost credits restored there is no clearly established law in this court cannot grant relief under and the supreme court has held in green homes and in iraq that there has to be more than just the want or the desire or the possibility of having something returned he or given to you so so from my original understanding the fact was that the pornography incident avoid call it that was what caused the loss of the good time credits  and because there is no supreme court authority that has considered this scenario there is no clearly established law just as there was no clearly established law and was laudanum where there was a there was it was in the same general category of type of conduct but there was a distinction between state sponsored activity and spectator a public activity because there was that distinction just as there's a distinction here between credits a person actually has in their hand and the possibility of getting something back because there is a difference there and there is no supreme court authority on whether or not you can get credit back there's no clearly established law and pub bars relief plus the court further questions the question i think not thank you very much know just three things and i'll answer whatever questions the court has green hold still with parole that's why this statement in there that if you can't always get what you want nd the nature of the right that's where you've been decided by the supreme court credits  are protected by due process are legitimate says say they were agree with you in this instance your opponent says that the good credit time credits were taken away based on  earlier infraction right at the time your client was trying to get them re stored there was another problem and that was the pornography right and that's why i didn't get him back to agree with i agree ok so that's the case then he really not talking about it's mandatory you're saying is the regulation that gives him the possibility of getting it back to press my new process violation it's not a possibility it's a certainty he says if you can see if he said it the regulation says if you you're saying that the pornography was not enough to stop him from get well in the st but that's the other thing there was no if there was nothing on his computer there was zero evidence that he possessed cannot go free i mean can do with the faith that was done by have with it i agree with you that it is mandatory under the regulation of police that the credits be restored unless he satisfies and indeed that's the way the regulation is worded it says shall be restored unless but if he possessed pornography that would be a good reason for saying one of the exceptions have been met you're saying there was no evidence to support that the prison authorities determined in fact that he was a regular user of this computer that had all this pornography no it was enough you know that's that's not no record if you look in one of the briefs i cited every single piece of evidence that was introduced i scanned the actual report in there there was nothing on his computer involving pernod greece zero i mean as i say for a trial lawyer this is an unusual situation to see that but there is zero absolutely zero evidence that he can ask for an r v it's just that the investigating officer believed that because he sat next to this guy he must be guilty too and i don't want to get into guilt by association but bottom line there is no evidence that he violated the rules so you're perfect you're saying that what we need to decide is that there was no evidence and because there was no evidence the regulations as you get them back no that's that's not before the court was before the court is whether or not this subject matter comes within the protection of the due process clause and remain and the district court would then determine whether or not there been a violation whether the prison expectancy it doesn't give him a line under it but this is not mere expectancy when i read a statute that says you will get that the court shall give you the following but it's not a statute it's in the regulation regulation where is the statute is permissive not mandatory true but the regulation is not permissive the brig elations mandatory and in california regulations have the force of statu e the legislature can change the regulations if it wants but until a legislature acts they have the for the force of statute and the regulation says shall i think your point and the other question thank you thank you very much for both of your arguments the case just argued is