amendment to california penal code section twenty nine thirty three point six which governs custody credits for inmates placed in the security housing unit known as the shoe the amendment eliminates custody credits no new information after six years the inmate may be his status may be changed from active to inactive also there is a debriefing process that exists in which yes i understand that it was at that point when he was validated it would not affect his custody credits to undergo that process but it would if successful result in him being transferred out of the security housing unit where there are lesser privileges that also that if he participated in the briefing part of which i take it is informing the authorities of his knowledge of the gang activity and gang associations in other words had no effect on the sentence and when when did become effective as a method of reinstating as credits it it would have upon the effective date of the statute which is january twenty fifth two thousand and ten so that for the time he was in the deep briefing process which according to the sampson case can take about nineteen months but assuming that he went through debriefing and even if you complete all the steps it is the special larry that assuming that he was successful in all of those steps then yes at some point he could resume credit earning status so to certain extent the ability to gain credits was in his hands that is hell yes i would agree with that in general that yes it was in his hands however we would argue that this is an extra condition that he would have to cecile and he alleged that it was a dangerous says to give information against a prison gang while in custody and that this was not a condition for purposes of ex post facto condition this was not a condition that he had to undergo at the time he was convicted validate him were related to his conviction however one of his convictions did involve criminal street gang activity if his vision for forgery would have made no difference he could have invalidated again yes  in effect does is the prison which is concerned about gang activity within the prison facility it cannot deny him credits even though he is independent of his conviction committed acts within the prison that or even validated after the amendment passed his validation rested on having a tattoo possessing a name possessing a birthday card the last of which happened in two thousand and nine about a year before the amendment passed at the time he possessed those items he was not on notice that the that would result in the future loss of custody credits and he was not under any obligation to affirmatively brief and this is akin to what the supreme court discussed in weaver v graham it's heard it discussed this under the prong of the ex post facto analysis not as to whether it's retrospective but whether it disadvantages the offender florida in that case and weaver had argued that you know he actually didn't disadvantage him because he the inmate in that case could still earn the gain time credits i think they were called by complying with certain conditions however the supreme court said that looking at the effect rather than the form of the law it imposed extra conditions that weren't in place at the time of that inmate's conviction and that is it therefore did disadvantage him so of course the prison can impose a system of custody credits however the question here is whether it can change that midstream and the supreme court is emphasized in cases such as weaver and lance that the purpose of ex post facto clause is to protect the right to fair notice the authorities are not increasing the penalty fruit two thousand and three conviction with you're doing is punishing him for being a gang member was in prison honor yes he but that punishment is attached to the sentence for that conviction really because as we just discussed a moment ago had the sense been for forgery in the know going stre criminal gangs association or all the gang validation would still work to deprive him of the credits going forward we would submit that it's not punishment for this gang activity because it there is no independent charge being brought it lengthens the sentence for the underlying conviction whether that conviction was for robbery with gang activity here or for forgery that is the only sentence in question here and as and weaver the state argued that this gametime wasn't an ingredient of that original sentence but again the supreme court said that the important thing was to look at the effect of the law and the effect was to increase his punishment for that conviction if there no if you want to say tha good morning and may it please the court deputy attorney general pamela b hooly on behalf of the respondent appellee warden the district court's decision here is actually entitled to at pedestrians because the summary denial by the california supreme court reflected a decision on the merits as explained in recent supreme court case law such as harrington v richter and cullen vis versus penn holstered pretty clear in the state court determination that there's simply saying you picked the wrong venue that was correct your honor in the superior court but each court in california has original jurisdiction and given that each court has original jurisdiction the review by each court at a higher merits in this case similarly the denial of the ex post facto claim is entitled to a determination that it was on the merits because the supreme court was looking at that on a dyno basis indeed if the court had been persuaded that venue was a problem and the matter should have been sent down the higher court could have done a dismissal without prejudice to bringing an appropriate venue but given the timing of m petition to the california supreme court it's very likely that they were denied on the merits because they had recently denied review in sampson and in f stuff to you through the two california appellate decisions finding no ex post facto problem with this as was properly decided in this court should similarly affirm the district court's decision but even still if the court were to engage in a general review the case law does make clear that there is no ex post facto problem in this case because as the court has pointed out there was no change to the underlying sixteen year sentence there were no there was no taking of mr you know hose was previously earned credits that case your honor was predicated on nothing that the inmate had done after the adoption of the statute in contrast in this case california recognizes that if an inmate is actively associating with his gang and his status is that he is still affiliating with his gang he is housed in the shoe mystery in a hosa could have engaged in the deep briefing process and then he would have been able to eliminate his association with the gang but having gotten notice of the change in the statute he did not take any such affirmative steps so his loss of the ability to earn credits was predicated on his ongoing affiliation with the gang thus there is no ex post facto issue with the application of that statute  no your honor and this court has since returned johnsonville you williams continued to apply the look through presumption to postcard denials from higher california courts one other fact which is that mr you know so was a gang validators a prison gang associate not a prison gang member sampson involve the prison gang member those two are differently defined a member someone who has been accepted into active membership an associate is someone who periodically or regularly is involved with members or associates of a prison gang that difference i think is important as to the ongoing nature of the misbehavior whether one agrees with the california court of appeals reasoning that prison gang membership is ongoing until its disavowed prison gang association turns on conduct and here we'd argue that the  thank you very much for your argument