first improperly applied to some evidence standard finding that there was a federal a federal liberty interest in due process secondly if superintend a vehicle and this and some evidence down now the first argument might meet with some incredulity given the court's recent holdings on superintendent feel but respond i would like to use the appellant would like to direct the court to look at ninth circuit decision was based on tonight circuit cases interpreted the u s supreme court decision that's correct rather and that's basically the difference between most laudner what was loud points out is when the u s supreme court it's this court and that matter is that there was a difference between state action that was inherently private prejudicial and personal action that was may or may not be prejudicial and the u s supreme court found that it had to be a fit had to be the same issue which just can't be the sort of same area i thought the u s to bring court said we can't follow ninth circuit decisions we have to follow us supreme court decisions but it's not actually a court has to follow us supreme court decisions doesn't have to follow ninth circuit decision well it just depends on whether it's clearly established by the law and i thought they want off on that phrase as established by holdings in u s supreme court decisions that's in twenty two fifty four that correct your honor twenty two fifty four does apply here it has to be whatever we're talking about here it has to be a court decisions that were run afoul of the clearly established federal law which would be holding of the united states supreme court part of the holding  so one of the issues with superintendent here was that is the disciplinary hearing that's an adversarial process as opposed to a full hearing like we had agreed halls which in parole hearings that's a non adversarial were sort of bound by what they you know well in sas of course in sas and in irons the big stick that was rejected and in both cases they found that the board had acted correctly and that biggs was not clearly established by the law they didn't make it it's clear  interest claim that they you know they take a different that well it was very clear on that and what i'm asking or what the responded it's hard for us as one panel to you know to to completely ignore another pair i thought that the the  the some evidence standard is there some evidence here that's what i wanted to get through that's the second argument in this case there is some evidence what is this some evidence your honor is there is evidence of premeditation and the fact she took  which is another part of the california tast you have multiple victims so it's a it should be a first degree murder and it's multiple victims instead she's gotten concurrent sentences for second degree murder is it fifteen years or seventeen it's seventeen years wrong i know  it seems a little confusing on an abstract a judge when actually said twenty two years but it should be seventeen years because of the different numbers so that based on the circumstances of the crime that's correct you are she could spend the rest of her life in prison it depends on the board in the board's judgment your honor because she could go just on the circumstances and she's been turned down nine times i don't have that information for me she's that size she has been turned down more than what that's your basic position is that she could cold blooded murders is that are their problem keeping somebody locked up for life i don't think i don't think so your honor i mean if she was just asked if the board thinks that if they behave nicely in jail it's a possibility roger but it's irons in the dish record and biggs got it wrong is they're putting rehabilitation before public safety when under california law and the penal code and all the cases it's the number one priority is public safety and that comes down to the board because the board sits in the room with her they're the only ones the court hasn't had the opportunity to sit there and examine her in person and look at her entire prison central file and make that judgment they're going to they're the ones that have to make the call in the end and they're the ones that have to live with it and they're the ones that are trying to to to evaluate everything everything that how this is what you're going could she do i don't i don't honestly and she the supreme court has said in greek holds she's entitled to an opportunity to be heard and to be told why she was denied parole being told why it could be because she did you committed a really bad crime years ago and ye y and then our court has said there has to be some evidence in addition to committing a really bad crime years ago at the that you were convicted of for keeping you when for t there are cases pending as far as this exact issue your honor i'm sure that there are i have i think i have argument on one and about a month in a case called moseby which is one in which we prevailed on in the district reason for going island there's some evidence standard is a it's for an adversarial process and in this case when even beyond what the standard has said it has been claimed to be in the ninth circuit under great holes it's enough to listen through her and tell her why specter and the only problem with those rulings is they haven't been very clear as to exactly to say exactly that this is not clearly established federal law and that the district courts should not be following it and irons they even they created further data in which they discuss whether somebody served the minimum term or not however in the day after irons a different panel came forward and found that whether somebody made the minimum turn of or not is really not an issue says clearly established a law and then has a phrase following the comma as determined by the supreme court of the united states we have this line of decisions about how people behave in the court room that led to the button decision and must live no buttons supreme court had not said no buttons we had that there was a dissent from denial of rehearing on the supreme court took it and they said no court a statute that says as determined by the supreme court of the united states and that's that really means something and what's more it has to be holdings  i don't really see why we have to pay any attention tonight circuit decisions that say any more than three holes and angry holds it seems really solid it says there's nothing in the due process concepts on page fifteen agree hold have to misbehave in prison or there has to be something more than the fact that they got convicted years ago of a paid crime and it just doesn't seem to be there so we go one way california can go another and on  california we have to follow the supreme court not our own decisions i don't get where there's any more choice well to two responses or our first as far as in a slot and goes in the slot and do not deal with the language in williams retailer which says that it can be a violation under eight before a state court to unreasonably refuse to extend a supreme court principle to another context where it logically applies now one thing that was interesting in the slot and was that in reaching their own  result they noted although obviously wasn't dispositive what lower courts do that there was a lot of confusion in amongst the circuits about whether or not this particular night circuit tell you when you heard something that they said actually have made might be a really bad idea for a judge to allow the buttons in the courtroom nevertheless we haven't said so so maybe it can't be granted on that right but there is no similar confusion here and i would submit the conspicuous from the attorney general conspicuous by its absence from his attorney general showing i really any case that supports the notion that a government decision that can be reviewed under the due process clause can be arbitrary capricious and not supported at least by what we are conse but that was a really bad crime so we're not going to let you out well i think on the gut level nothing and i want to get to later how the gut level doesn't control now under the attorney general's view of something not being arbitrary capricious i submit that that's what they're advancing and if you read green holes to say we don't have to look beyond the face of the decision as long as someone was handed a piece of paper then you're indorsing potentially arbitrary and just the president's decision making it culturally only if the reasons given to arbitrary capricious missed call what's arbitrary and capricious about saying you've been real well behaved since you've been institutionalized but your crime was just really bad so we're not going to let you out of the bottom end of your ad partially indeterminate sentence maybe later will change your mind really bad is not the standard the california has enacted and i want to get to that we don't have any say over the standard that california has enact all we can do is decide whether california has violated supreme court holdings well we're looking at you separate questions we don't get to the question of whether there's some evidence to support what california did whether there's whether there's any parole because of your numerous records of prison just disciplinary infractions during your lengthy incarceration the attorney general would say well she got a statement of reasons and that ends the issue but we know ms called ricin does not have any record at all of california rule actually say that the board can rely on the gravity of the fast as the reason for denying the rule speaks of the preparatory part of the regulation speaks of the gravity of the defense of the offense and there is a lot of loose language in the opinions of the state and federal level that speak of callous disregard for life aggravated murder which was the language recently in cancun versus months minimum elements particularly egregious and so on hon and charles manson have a legal impediment to get out now that's well that we have to go through the regulations that the board is entitled is required to apply and the california supreme court though they use them so loose language themselves like i just described in the rosenkrantz case and then in her case they make this clear that the question is some evidence based on the factors specified by statute and regulation the governor's discretion and that was on page six fifty eight on page sixty the governor's discretion must be based on the factors that restrict the bourque down in berkshire the same effect page t details standards and criteria resort ability and indiana vary the question before the court was really not just have to how do we figure out what some evidence as the question before before the court was the interplay between suitability and and uniform terms page ten ninety five the board must apply detail standards and the california supreme court as the court of appeal have done to apply those factors they apply have relied on the human suffering in the trivial motive factor so the question here is the case specific inquiry going down each and every finding factor sounds like a difference what's the matter that i start that's reasons they have to give reasons they can't be arbitrary and capricious they gave reasons and the reason i have to be supported by some evidence in my example if there is if the denial had been well she has a horrible record in prison we know she doesn't happen that not be a due process violates reasons here we're not a horrible record in prison she's wonderful in prison she's taken anger management she teaches anger management she's learned to deal with a broken heart i think she said and good stuff in prison the reasons they gave had to do with the cry coldblooded to victims premeditated and why i reasons well i will go down the list premeditation i would submit is not a reason if you the attorney general focuses on premeditation i kind of take a different view than justice marino's dissension in danbury i think the regulation recognizes the fact that cases are going to come before they're going to be first degree they're going to be second degree and they cut to the chase and they say let's look at what actually happened and none of those none of the factors for unsuitability  premeditation as as an example of something indicating unsuitability the book the regulations presume that first degree murders and second degree murders can be found in title to parole now the precise question precise question b are other than the gosh is that nasty or is that not a nasty question that has to be answered was does the inmate pose an unreasonable risk of danger to society if released from prison and that that answer has to be evaluated was the board's answer supported by some evidence having some indication of reliability restated i think reasonably without without exaggeration the question that the parole board is supposed suggest this crime was an aberration or saying we should just reweigh all that you know i'm saying you need to look at the evidence that was in the record and say given that was all this evidence of suitability and at most the only potential factor of sister or daughter or friends who got involved with this woman after she got out you'd be kind of nervous accessibly and the reason you'd be nervous is that despite all the wonderful things from prison and teaching anger management and stuff look at what she did to her last time a lover just or she killed two people but i would like the attorney general or perhaps your honor to tell me so we can we define the terms of the debate what is the archetypical model  not worry about him because he's behaved ever since it's a long time ago it's not a question of behaved ever since i think eichmann probably had those down a lot of other factors of on of poor ones i don't know i heard he was a wonderful fellow after nine hundred forty five well he got caught well the only factor is not the only factor to look at we thought he was a wonderful fellow after he got caught but there's still a history yes there is still that history and i submit where you have someone who's shooting up malls where you have the fellow is rich in your check you can't answer that you can't you can't you would be able to answer the mental illness question right but you're answering scuse me all the fav all the suitability factors factor into her favor the only thing i i know it sounds horrible to say are you doing your own i just don't see how you get test results in which respect now quote there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid i spoke to an attorney who had represented mr rosenkranz who has since been granted relief in federal and state court is now out he argued a case i think he said the name was smiley recently that that's or just as a as a final thought the district courts in the ninth circuit have seen when they've developed quite a bit of confusion about these issues and following on one hand following the prior ninth circuit precedent and superintendent detail and also going off on a tangent on the bigs versus terra hoon style and then now at this point after irons and the minimum term language most of the district court judges are asking for supplemental briefings to discuss arms and it seems to respond that this is something that really needs to be resolved at a very fundamental level and the court seems to be you know going towards the green hole switch which responded believes is the correct direction to go in these cases really quite a bit more than some evidence and looking at the loss of a few human beings because under california law on under california law a crime is sufficiently egregious if it's you know there's a bunch of different things there's you know multiple victims which we have here we have the deliberate work to put deliberation and preparation which was a big thing you original rosencrantz and we also have the triviality of somebody that killed two people because she felt humiliated that they were moving on or laughing at really i just can't so i will compute about the reference to hill as superintendent versus jill was about good time credits rather than parole and i had understood that good time is as long as you behave in prison you automatically get the good times to track them from your time to serve it's an entitle me while parole is entirely discretionary and is not a good time at all just understanding that  process that's involved i mean it's an adversarial process with the right to cross examine and all the other you get when you get sentenced to twenty years federally of course there's no parole but there's nineteen times fifty eight days of good time so you get thirty eight months off your twenty year sentence and your title to that you're entitled to get out in seventeen years if you've already got the time was that's it's separate really when you look at superintendent detail and its application to the over what's the confusion about hill i think that the court it was pretty kerry versus muslim and i think that the court was reaching for something to use as a standard in order to address this because for killing two human beings i mean there is a possibility and circumstances where that would be reasonable and it's up to the board and under state law and under the state scheme thank you