under clearly established supreme court authority the only process due to mr tolle over was an opportunity to be heard and a decision informing him of the ways he fell short he got that process second the district court relied on the big stick as a basis for granting parole igs is only dicta this court has disavowed it in a published decision in sas this court refused to apply it in an unpublished decision co the district courts in the circuit courts should not import a test that has not been used what in your view specifically within how pointed with the supreme court decision need to be for it to be applicable in your view i think it has to be directly on point your honor given the decision in who's live where there was a test concerning participation by a state actor that could be deemed to be a violation of the right to a fair trial when the influence was by members of the public the court said that was not enough because there was no holding on that specific point similarly in landrigan when the court was looking at whether there was a problem with counsel's performance in presenting mitigating evidence there were cases that held that when counsel decided not to do it improperly that could be ineffective assistance there were cases when the well let me just start with what we do have because those are really trial procedure cases and it seems to me it's a hard stretch to try to apply those in this situation so if you take green holmes which is the applicable supreme court well which basically says if you have language that creates a presumption as california statute does then you do have a liberty interest in parole so are we on the same page that far i would agree that this court has found there is a liberty interest and i understand that's been decided by this court the warden's position would be however that that's not necessarily clearly established but even if it were your honor maybe you could explain to me because i think we need to start somewhere and it may be that if we get on the same platform that you would then diverge from what that means but if you take allen read together what do you think those cases stand for those are supreme court cases correct yes your honor presuming a liberty interest does exist in parole presuming the state statute creates one i think those cases tell us that the process that would be due because this is such a minimal liberty interest it's merely a hope of release the only process that is due the only process that is necessary to assure that the decision is not arbitrary is opportunity for the inmate to be heard and a decision explaining to him how he fell short indeed in green holds the court refused to require the board to set forth specific evidence that it must cite to support its decision and if it didn't need to set forth specific evidence how can it be that the some evidence test applies similarly in green holds the court contrasted parole decisions which are subjective predictive and there is one other difference not adversarial apologies where as disciplinary decisions are retrospective adversarial and object of decisions that need to be made so it wouldn't make sense for the same test to apply in this context and given that the supreme court has not yet said that this test applies here it's not appropriate for the district courts to assume that it does because the new cases make it clear that under ed the only jurisprudence that's relevant is that of the united states supreme court and unless the united states supreme court has given this court a green light to bring in a test it shouldn't go there and therefore the state court decisions were not an unreasonable application of clearly established federal law i'm not sure i understand your argument are you suggesting that under green halts and alan assuming there is a liberty interest not a good example but no matter how unsupported by anything in the record that's all that's that's needed at this point yes your honor because green holt noted that the liberty inference was that minimal that the process alone was sufficient certainly if there were a completely arbitrary decision that might present a different question but here we don't have that in the state of california the inmate is give an individualized consideration there's the exercise of discretion and there is a decision that is presented to him explaining the reasons and that decision was reviewed by the state courts which are presumed to be able to interpret and determine whether there was a violation of his federal due process rights the ski courts found there was not and  using some of the decisions from this nice to get into actually inserting themselves in the parole suitability determinations and determining whether they find the inmate suitable that's not the question and that's one of the problems in tal overs arguments on a where he suggests that twenty to fifty four d doesn't apply he's trying to say that his petition attacked the governor's decision that's not what it does it attacks the state court judgment that rejected his claims about the governor's decision twenty two fifty four d applies to review his case as this court held in white and as reflected in shackleford the second issue that we need to discuss is related to  concerning the appropriate remedy and in any case where there's a due process violation the appropriate remedy is for the process he suggests that release would be appropriate and that would be usurping the state's executive authority in a very much state area of concern but what if if if there is a position somewhere between release and your position which is that we should the governor basically says well it was a bad crime then i had what is there a middle ground here for some kind of a an additional review by the governor no your honor two to two problems with that question not with the question but yes that's a nice to look at case law that makes it so confusing your honor for us for the courts and i'm sure for this panel as it sees the decisions out there from the ninth circuit and from the u s supreme court you've invoked the phrase minimum term that arises in irons the iron's rehearing petitions are pending both sides have answered our position on the rehearing was that the minimum term language itself is a questionable route to take because to the extent irons suggest that possibly after the minimum term considering the crime would violate due process that doesn't make sense in california because an inmate can't be considered for parole until you serve the minimum term so the courts there would suggest that the board and the governor never could consider it but with respect to the difference between the governor's decision and the board's decision the governor has independent authority to review the record and come to a different conclusion but the governor's decision does need to be guided by the same rules and regulations as the board correct that is correct your honor he was given the authority by proposition eighty nine he was required to look at the same factors that the board did but he has the authority and was given that authority to be a check on the board and if he can't come to a different conclusion then the authority would be s be a rubber stamp he is empowered to have a different opinion and as long as his opinion follows california law which doesn't violate due process then that opinion was properly upheld in the state courts and the district court shouldn't have granted relief so in the case of mr tyler who seems to be that the main thing standing between him and parole if you read the governor's decision is his crime of conviction in your view if they continue to deny him parole well there at some point be a point in which due process is breached because of the mandatory parole statute that's not for me to stay that's for the supreme court to determine that it is going too far california has found that it doesn't violate due process to continue to rely on the crime when as here it contains elements beyond the minimum necessary to sustain that conviction because that's the very idea of parole here especially whether it's safe to put someone back out on the streets and you want to be very cautious and i should say the governor in the four do not the court wants one wants to impossible to commit a murder without doing something more than just they absolute minimum that you need to commit i mean this is it what how does this murder differ from any other this murder was committed in response to a threat to the man's home nearly a thought that a gang member might come and shoot up his house he went premeditation in arming himself and his codefendant and and searching out trouble when it had not yet come to him or not seeking help in another way and the governor isn't illegal here which preemptive war because he went looking for someone and wound up shooting someone in the back you'd never know who was innocent and running away while that follows the same pattern  i can't say that it wouldn't your honor because he may have been that it could have qualified for a gang special circumstance might have to go back and check the record more authority for those points but the fact that he did arm himself and what everybody keeps saying this thing over and over when it goes beyond you know i'm just trying to understand what does that mean because i'm just i think there's a lot of phrases in these cases but then i never really stop then analyze them so i'm i'm trying to take each one of these little phrases and i agree with you it's not always a second degree murder because they were in the wrong place at the wrong time and the codefendant was the only one who fired the gun i think that might be a little different but do you think this this is this kind of discussion is this what bothers me is this really a question of federal law that we're supposed to be dealing with you know your honor again you're correct that's what we know i'm just asking the question because in one sense it is a question of a federal law if they're supposed to be some evidence to support the conclusion and under federal law and the conclusion seems not to have any evidence of i mean you're just assuming that this looks i'm not saying that it does but you know just assuming looks just like just an ordinary second degree murder and then you could say well there's no evidence in the federal sense and you have to say that looks like you're deciding a question of state law this i find is very difficult it is a different question and it goes back again to whether the some evidence test even applies and given and the language in green holds that's probably why that test doesn't apply because parole decisions are predictive you're trying to guess is it safe to let the inmate out it's not a question of did he do x or y and he should be disciplined so we can see yes there are some evidentiary basis for that this is more about the state developing a parole system an inherently state question coming up with a system that gives the inmate the opportunity to present his case and then the state courts reviewing that decision and upholding it and there's no clearly established supreme court authority that precluded that and on that basis the district court should be reversed and unless the court has additional questions i would like to reserve my remaining time f this a matter of federal law it is a matter of both federal and state law and the most important thing that i could emphasize for the court today is that this is the life for cases must be addressed in a two step process the first step in the process and it's what a lot of courts do is to determine whether there is some reliable evidence to support his or the board with the governor's decision most courts don't do and what the board and the governor don't do in many many cases is the second step and judge patel emphasize this in her decision and wills first is kane she says having determined that there is a due process right and that some evidence is the evidentiary standard for judicial review the next step is to look to state law because that sets the criteria to which the some evidence standard applied is one must look to state law to answer the question what are some evidence of what yeah and then at the bottom of page thirty nine in our great brief we say what the critical question the governor was supposed to decide in determining whether releasing the streets all over posed quote an unreasonable risk of danger to society that's from the california code of regulations section twenty four zero two subdivision of title fifteen such that quote consideration of public safety requires a more lengthy period of incarceration for this right petition it was not always clear that heaviest law would apply but i guess that that's what applies now so we were what are we dealing are we doing directly the parole board decision think the target of the court's concern should be the governor's discharge decision that is what we are challenging now of course that was that decision was also reviewed in post conviction proceedings in the california state court it seems to me that we have to accept may or may not have quite a disciplinary proceedings but that's not the issue here and do you have any authority that it wouldn't apply to a parole proceeding question if we review the california court of appeal which is appears to be the last reasoned decision they issue a decision that says the record contained sufficient evidence to support the governor's decision based on the nature of the commitment offense and other factors if he is supplies isn't it the california court of appeals decision that we're looking to yes ok and if the california court of yes that there is sufficient evidence based on the nature of commitment and other fact that's certainly not contrary to any supreme court law correct that is contrary to hill versus superintendent which says that some reliable at that a decision of the prison board must be supported by some reliable evidence you know not be otherwise arbitrary now in your memory and it's a new and reasonable application point we would never have any havey is granted anywhere in the country like she's saying well we've have you have nebraska that has a statute in supreme court said that parole statute has  provides it protectable due process liberty interest we can't have there's no clearly established federal law and courts are prohibited from granting federal hey i don't think that's what she said you know there has to be a case directly on it here is here is what i think she said remember she can stand up and tell you this is where you get to it is it's not that there isn't that the supreme court has never consider the california case it's that even in considering green holds which might be considered comparable that what the supreme court said is that we find nothing in the due process concepts as they have evolved so far that require specify the particular evidence that on which it rests its determination so i think what she's saying is there's never been a supreme court case that says you need some evidence standard or that you can't simply take the decision as long as it's made in a rational manner right but green holds all green hold says is the board doesn't have to articulate evidence but says hill superintend vs hill so there has to be some reliable evidence or not otherwise arbitrary and so so if we let's just say that we take those three cases you know  back to the governor's decision here which rests primarily on the crime of conviction and if the governor says in his view the crime of conviction is such that it still represents dangerous how do we second guess that well it's not sucking guessing and that's why it's so important for the court to take that second step and determine whether that evidence that the governor has cited in relied on means that the that the inmate is a current danger to society and how can you say after twenty six years on a seventeen time life sentence when mr tolle over the category x program where he's gone through extensive psychological reviews the psychiatry says given the evidence review during the course of this assessment his potential for future violent actions presently seems marginal we read that but so that makes the state decision and unreasonable application of of federal law to these facts exactly well so does that mean that we are now going to have to go through every parole decision to determine whether or not it's in any reasonable application whether to see whether whether we agree with you fight about whether it's reasonable or unreasonable i just i'm having some problem here our role in haiti is consistent with the statute if you read this role the court's role is here today i the attorney general we might not have a court would you be i don't think that the attorney general would have appealed the case we have a very conservative magistra judge and district court judge were not known for granting he was who have both granted a b s the district court judge denied the motion to stay the judgment even after irons was decided saying there is no board i don't know about the governor maybe you can tell me if there are any cases where the governor has been overruled but certainly we've seen the parole board over rule in this case the california court of appeals has know that there is some evidence think what the court does is he takes the second step it says yes the court state court of appeals said there was some evidence to support the fact that the crime was cruel and heinous atrocious and cruel ok but that's only the first step and the second step that wasn't done by the court of appeals here but that was done by the district court and the by the district court is whether that evidence means that mr tolle currently poses a risk of danger to society if released and we're not stepping on the state's toes here because it's the state statute so if if  even under the state's statute if you have a crime that's particularly heinous and then you run it through the factors the result can be that a judgment can be made that even though it's an old crime that a heinous crime can still be a basis for future dangerousness correct yes the regulations are especially heinous atrocious or cruel that can be a factor ok so let's say that then  how are we to judge if someone says that it's particularly heinous and therefore there go it's leads to tension future dangerousness i'm not sure what our benchmark then even as a federal court as opposed to the state court of appeals i think you go to a judge can be his remarks which are what made this crime especially cruel heinous or don't i wasn't convinced by the deputy attorney general's response these facts are very minimal in terms of second degree murder and that is the that the charge that he was convicted of  the magistrate judge that would be true on the day when he got into prison then it doesn't change that's correct and so for a certain period of time you can say so for people that's what i'm having trouble with here's the answer answer ok first certain period of time you can the governor certainly can rely on that and say yes it's a very cruel and atrocious crime and there's nothing on the other side of the ledger he hasn't done programming he doesn't have realistic parole plans he doesn't have marketable skills he's institutional behavior is bad so for years and years if the other side of the ledger has nothing on it then you should have reached a different decision in this case because clearly established law is the general principle the general principle where hill first the superintendent says that in many contexts we require some evidence to support an administrative bodies decision that combined with green holds and all and see that there is a protected bill liberty it's been made throughout and the california courts have rejected the deputy attorney the the warden's argument here that there is no liberty interest the california state courts have said consistently danberg rosenberg there is a federal yes i you know were i the decision maker in the first instance that seems to me to be a different role than the court of appeals has which is almost in the third instance and board again and you're saying that if not now then when and is the when how are we to judge the when the when is governed by hill and you say is this an arbitrary decision or not supported by some reliable evidence and i submit that it is i have a very brief time and i just want to point out what the magistrate judge said was correct in this case and said page thirty one of the excerpts of record while it is perfectly fine to have a system where no possibility of parole exists for any murder it is not perfectly fine to have a call system that is based on misrepresentation and the second step that mr porter encourages this court to take is one it's precluded from taking under the court has suggested that it is bound by that decision by it but i a murder as defined by state law i'm afraid i don't understand well i think you're saying you can't take the second step point and we can't look to state law the law before deciding whether there's a total absence of evidence in another if you are there any evidence to convict in the first place a jackson against virginia standard could any rational trier of fact and then we have to say well what was the state law what was he convicted of in order to know whether there was evidence sufficient to convict him that's true your honor but that's not the second step i'm understanding this reporter to encourage i'm understanding him to encourage you to ignore what the state law is and  and that's what the governor was taking into consideration here mr porter asks when when it's up to the state courts if the state courts determine that mr the governor has gone too far then we'd be in a different position we wouldn't be questioning that was their their right to interpret their own law or if the united states supreme court gets to the question in another case and finds that reliance on the crime indefinitely somehow implicates due process we'd have a different question but here we don't and we are looking at what the state courts did not the administrative decision that's made clear in white versus lambert which came out after cox and rejected the cox decision saying it's not appropriate to look at the target given the statutory  against how the state court or the state law defines this right to parole which is through the regulations yes indeed merely then look to see whether there's any u s supreme court authority finds the state court on reason we determine that but that is jumping over the cart before the horse with whether the some evidence test actually applies and again i think unfortunately this court went down the wrong path a long time ago when it tried to clump together parole decisions and disciplinary specifics because they somehow like the length of time an inmate has been in custody that's not the case disciplinary decisions are very different and the supreme court made that clear in green ho and that's why it's clear that the some evidence just shouldn't apply or at worst it's not clearly established that it does apply and therefore there's no way the state courts could have unreasonably apply a precedent that was binding thomas counsel has made is that that it's not just state law that it's hill which requires some evidence and then to figure out whether there's evidence you have to look to the state law to see how they define it and if they are reasonably or don't apply their own law then haven't they violated him well again the preliminary question is does hill apply and if it doesn't apply then it doesn't really matter how they used the some evidence test because they weren't bound to follow it because the u s supreme court has never said it's the right test for evaluating under federal law that this court does need to look at moose lodge in and although she didn't cite it we have more recently landrigan saying that when there isn't a clearly established rule that's been greenlit by the u s supreme court the federal courts can't grant it's really the statute is clear and that's why this court in another unpublished decision culberson that just came out last week cited landrigan and most ladan and rejected i believe it was the tenth time he'd been reviewed as well and that petition was denied and properly so and so to hear it's not this court's business it's not the district courts business to be evaluating suitability it's examining state court decisions unless they're objectively