please the court mr sylvester morning honors my name is jim halle i represent craig dawson mr dawson appeals the district court's denial of his his corpus petition challenging to actions of oregon board of parole on ex post facto grounds mr dawson committed a murder on may thirty thousand nine hundred eighty five he was sentenced about four months later after a stipulated facts trial to life in prison at that time oregon had an indeterminate sentencing system under which a judge would imposed a sense since as the judge did in this case of life and then the or of parole would make a determination of how long the prisoner actually would serve in prison pursuant to statutes and rules in effect at the council you're challenging the board action is number five and six correct  thirty six months of supervised release correct yes and there isn't any doubt that that was a penalty to which he was subject they may not have given the correct reasons i mean i've given any reasons number five correct yes and in number six he was again given thirty six months pursuant to a new statute perhaps pursuant to a new statute passed by in the state right view the record bit differently your honor but here here's my question is his term was never increased and other words the first term that it was given under board action number five was thirty six months the term given under board action number six was thirty six months there may have been some oregon state law errors along the way which is to say that the board may not have given reasons the first time you gave thirty six months but i'm traveling difficulty figuring out what your federal claim this has he penalty was never increased he perhaps could have gotten twelve months the first time but that's not what the board gave him so where's the where's the federal constitutional claim the violation is that the one in effect before nine hundred ninety three he was still subject to a thirty six month term was he not he could have been he could have been and that's what they gave him but the board would have had to have had made findings right but is not an oregon state law problem in other words they the penalty that he got under both board actions was thirty six months this he was statutorily subject to a thirty six month supervised release term each time they may not a follower in law in the way they imposed it they may have given sufficient reasons or than they have used the rule of statute the second time so why are those federal constitutional cleaves the test is whether or not the action of the board presented a significant risk of an increase in punishment if the board had followed the rules in effect on the date of mr dawson's offense being or s one four four three ten and away are two five five nine zero zero zero two mr dawson would have been based on all that can be determined from the record he would have been given a year you don't know that they gave him thirty six months they may not have given reasons but we can't say that they didn't have reasons you can because firstly they didn't express any reason but then they later in number six come out and make specific reference to the new statute which they didn't do in number five so as i look at it it seems more likely that they decided a serious offense what not we're going to extend the period of oversight to thirty six months they may have failed to give reasons required by state law but the question posed by judge her wits is what does that make that federal because when they do come out and act based on the new statute which gives you the potential basis for your ex post facto claim it's the same result it's the same thirty six months but it but it is a different result the board acted with the belief that it could use senate bill nine thirty six and the rule adopted pursuant to that requiring a minimum period of supervision it didn't increase the punishment he had thirty six months before he had thirty six months after it's not a test of whether the punishment is actually increased this question of whether it's a significant risk of increased punishment mr dawson doesn't have all the answer appears to be no because the punishment wasn't in fact increased  it's the risk and here's the risk if the board had followed the rules in effect at the time of mr dawson's offense it would have been posed to your supervision mr no it's not iron because you've already told us that's not true you told us they could have given an extended period and it's clear that they could have given an extended period if they gave reasons because the court has to view the record based on what is there and there's nothing there that says that they found the factors that they would need to find under the rules in effect in one thousand nine hundred three to impose a longer term so they would if you resume the opposite in this context how are we supposed to presume the opposite isn't this a situation or expected to give deference to the states judgments yes you're supposed to give deference to the states judgments but it's clear from the record that they were acting pursuant to a statute and rule in effect after mr costin's affirms it overlooks the test of significant my colleagues have ask you both of them have indicated to you and i agree that there was thirty six months throughout there was no new the risk was not hire as thirty six months before thirty six months after i would ask you this given the fact we're dealing with and had a situation here are you familiar with any supreme court case that would allow us to overturn what occurred here based upon the fact that the board did not explain its reasoning as it was required to do one of the nine hundred eighty five wall anything that would help us on that no not off the top of my head your honor and i'd like to have the opportunity to it a constitutional issue that we should be aware of because right now as my colleague indicated we're dealing with the question of whether there is a federal constitutional violation here in new york this case and expos fact violation where the supreme court has said that what occurred doesn't work under federal law my colleagues have indicated and i agree that you had thirty six months under the eighty five rule you had thirty six months under the ninety three rule so the only difference is they didn't explain the increase is that sufficient under ad gets you over the hump and i'm asking you is there a supreme court case that says that i can't a fifteen year minimum sentence in circumstances where the original sentence available to the defendant was three to five years and increased supervision to life and the court no let me try this again and just make sure i understand your argument correctly what if the state of oregon board in imposing the original thirty six month supervised release and board action number five had given reasons would you be here today no no i don't think there would have been an argument then because they would have applied ok in effect on the dais over the fence so this is why i'm having difficulty because their absence of reasons strikes me as a failure to comply completely with oregon law but the constitution didn't require reasons and board action number five did i argue that the constitution does require the board to follow its own rule ok so your argument your constitutional argument is that the board must follow state law then the board must follow its rules that's the essence of the ex post facto claim otherwise there's nothing left of the ex post facto claim if there's a discretionary option and i think that maybe i don't understand the cases as well as you do but i i didn't think those cases dealt with the situation where the original law permitted in this case a thirty six month extension basically had thirty six months of provision and the new law was the same i thought those cases dealt with a situation where the original law had forgot what the term was but far less than what was later imposed regards been pretty clear about that but we're all struggling with the fact  think that you had thirty six months before you had thirty six months afterwards there is no increase in the statute the issue really seems to be they didn't explain why and you've been asked whether that's a federal issue and i think you can see to it that but for the board's failure to give a reason you wouldn't be here is that correct because in those circumstances it'd been clear on the record that the board had apply the rule in effect on the date of mr dawson's offense as opposed to going to a statute and rule adopted later that made what was the maximum thirty six months the minimum thank you i can see i'm out of time thank you very which requires because the action occurs in one nine hundred ninety three so what if they had said gee you're subject to the mac to the minimum thirty six month requirement of the nine hundred ninety three statute that  cases talked about in our briefs it not only has to be a retrospective retroactive application of a new statute but actually disadvantage and result in the long but let's let's let's play that through for a second i don't know what what underlay board action number five because the board didn't say let's assume that at the time i think it's correct that mr dawson committed the crime if he violated his supervisor here he was he was subject to twelve i'm sorry when released he was subject to twelve to thirty six months of supervised release that was the possible penalty when he committed the crime when he's released the only possible criminal he has thirty six months because the new board because the new nine hundred ninety three starters come into effect and the board says they didn't say it but let me just play off the hypothetical we'd like to give you twelve months but we can't because now it's thirty sixth or nothing is  you're saying that's not an expose facto violation because it's just a retrospective application of a new sentencing stature yeah i think the important thing to keep in mind about this is one sees serves the twelve months once he serves the period of supervised parole that is set forth and he is not entitled to anything right that's a separate question i'm just i'm just trying to figure out now because i take it his argument is i'm more if i'd only gotten twelve months i probably wouldn't have been on supervised release when i committed the violation i and that's a pretty speculative argument but just i'm not focusing on not at the moment i'm just focusing on is it your view that that term of supervised release to wh was subject at the time that he committed the crime can be mandatorily increased later and that mandatory increase can be applied to the defendant without violating the ex post facto clause yes because it is merely a speculative disadvantage to the to the parolee because once he serves that period he is not entitled to anything as a matter of state law he is not entitle to discharge he not entitled to terminations of the sentence he is not entitled to reduction to unsupervised parole rather all that period does is that the fines a point when a parole board is going to look at him and make a decision whether to want to continue parole to reduce or unsupervised or to terminate parole but that is whether it's twelve months or thirty six months doesn't make any differ and says what ultimately happens now what patricia speculation has no foundation in this record because the poll actually took a look at him i think at twenty six months and said no we're we're not going to discharge you from parole we're going to continue parole because you are a change or there's no basis in this record to assume it which meet at determination after twenty six months had made it earlier after twelve months would come to any different decision do we know what statute board action number five was taken and we can't i mean the i mean if it was taken under the earlier statute there should have been a reason if it was taken to the one thousand nine hundred three statute there was no reason for board action number six right well to the extent of petitioners now saying well that the state failed to comply with its own laws when it may be a due process violation but we're not here talking about due process what he didn't alleged do process violation he alleged the next post facto violation no i understand i'm just trying to just trying to get a factual three september and he'll yeah it was it came out just a few weeks after that the law was changed the new aunt took effect that requires a thirty six month period and so it's not clear whether the  face of the order in which is that e r fifteen it says the board applied the rules in effect at the time of the crime now it is true when you look at that that whole sentence it is talking about a particular decision it's making but there's nothing on the face of the sport here that suggests that that work was doing anything other than applying the law at the time petitioner committed his crime when it made all the decisions they're in so i would have been a nine hundred five all right because he didn't state reasoned that must be because they were applying the new law one one what role if any as the supreme court case of lindsay versus state of washington play in our consideration here my recollection of that case and i'm sorry if i'm gotten previously and that's where they had a what previously was the maximum sentence became the minimum so it's very similar to what happened here in the sense of the thirty six months so i'm interested to see in your view  years and then there is end of filming commits his crime at that time and then the laws changed to say no did this type of defendant shell serve at least five years now if in fact if that new laws apply to the defendant and he gets five years he can say i was disadvantaged because i had an opportunity to have a shorter sentence that was taken away from me and i think that's what we're not for that lives of you but here what is going on is that the term approach roll in i think this is the crucial part in this the term or parole once he serves that he is not entitled to anything he is not entitled to discharge is not entitled to reduction is anything that is something that comes later and and so in the case of the person who gets the five year minimum sentence he is have otherwise and you can't say that with his one year or three years on the parole supervision that is an increase in punishment because the punishment is determined when the board ultimately makes a determination whether to help your position from your perspective i guess right now and you know if you think this kind of obvious case is that unusual situation when you have expos facto claim in the in the court determines at the sentence or or the administrative agency