it please the court he'll ivans appearing on behalf of petitioner appellant on how rivera the premise of the government's responding brief seems to be that the petitioners allegations can be disregarded entirely that they count for nothing and that therefore there's there is no there there in terms of his allegations were guarding proceedings his requests for assistance with obtaining witnesses and his statement that you know under penalty of perjury he's solely for the say whether there sufficient evidence no hill is the some evidence standard so right was the evidence we do if we accept the evidence without any analysis of procedural due process then the standard is some evidence but he also challenges the proceed and said that the standard is not some evidence that there is that the th circuit case that the parties both discuss in their briefs the thing that is different here arguably is that there is a declaration from the disciplinary hearing officer mr cortez and the government points out that because mr very didn't make these very specific allegations about you know not having as witnesses etc in his very st appeal that somehow that means nothing he said in his petition or in his nd appeal should be considered but it appears from the record that his very st appeal was actually filed without him having the benefit of having reviewed the disciplinary hearing officers actual report  if you look at the date he submitted that appeal before he received a copy of the dieppe just plain hearing officers actual written report and if that's true all he had what was what was said on the  record and if that's the case we don't have a transcript what we have is the post hoc his appeal statement that he didn't ask for witnesses and so until he saw that that's what the display hearing officer said he didn't really have a reason to say hey but i did ask for witnesses and and so his signature on these documents what do you make of that so he put in his materials that he filed were provided to him and that it was the u t c officer who filled them out entirely and then he was just you know he's in handcuffs and given them to sign so that's what he says there he doesn't say i didn't read them but that is certainly the implication is i i did ask for witnesses i didn't fill this form out i was in the shoe i was in handcuffs right that we're faced with a situation where that's going to be at the presumption of  signature of course which i know you're familiar with and you have a declaration and other documentary evidence so we on his a due process claim what do you think is the strongest argument he makes on that point shows and the contrary narrative is you know officer griffin came in we're all sitting around and he says someone's going to have to take a shot for this broken smoke detector and then he takes me and the other guy in the shoe and then i get hit with it and he does a lot of filing of stuff in asking for things i mean that's his his narrative is to the contrary of the record narrative and so to go back where i started so what is the standard reviewing that so that is an excellent question and i wish i had thought case to tell you exactly the right answer but we have a petition with his allegations signed under penalty of perjury where he a eges his narrative which is contrary to the written record and so we get back to the question of do those allegations matter in terms of making a determination and in the normal course a complaint we treat that as the allegations are treated as true unless they're proven not true and so is it enough for the government to just point to a preexisting record write the the record that they are pointing to exist prior to his allegations and the one thing that they you know add would be the declaration of the hearing officer where if there's a sentence that says you know he didn't ask for witnesses well th of course and under your construct there would never be any end to this because here's the documentary evidence here's the file from the institution and then here's a sort of after the fact and i'm not saying he made it up but there's an after the fact complaint if you will with facts that completely are contradicted by the record so the district court here said there was sufficient evidence  procedural due process claim court ordered air well with the district court basically said was the the district court as well as the government they are not giving way to his allegations and i think the question is when of petition is filed and signed under penalty of perjury by the petitioner do they have to give it some weight and if they give it some weight the th circuit case that we've discussed would say you have to have  hearing i mean if we're going to discount his allegations and credit the government's position factual findings like that have to be done after hearing which if i'm right about that takes us to the mootness point well do you want to work the th circuit not the nd circuit this court has dealt with that issue and said that when there is a chance that a finding could affect you know the supervised release term which this is that case and there's a live controversy between the parties then we have not a non moot situation how with this case affect his term of supervisors rulers well just as in the supreme court's decision in johnson the early one in two thousand not one of cases that talk about if it can affect supervised release by saying there was there is no controversy for us to determine therefore it is moot and that was your honour's opinion and in this case there is a controversy determined so under  supervised release from his release date would be november th but in that most and he could say the court the court of appeals you know reversed this and we had a hearing and it was wrong and i should have gotten my forty one days and indeed i should have been allowed to finish my can he get relief that's an in prison program correct right but he would be able to point out to the district court you know i did everything for our gap and the only reason i wasn't allowed to do the you know  of this and so he programmed incredibly well until this happened during his basic argument as that these change in these days in the discipline would be in favor of what the evidence submitted by the parties and it determined that mr rivera's due process rights had been afforded to him as a matter of fact it then went on to determine that there was evidence in the record that supported the da chose determination that he had been in possession of a cell phone and therefore was appropriately sanctioned the court did what it was supposed to do it looked at the evidence no i understand that the the opponent at this point is saying that the district court just simply disregarded his death aeration but that's not what happened in this situation and this report expressly acknowledged that contention acknowledged the fact that he was saying that the that in his decoration however the court also went on to review the record evidence both the decoration provided by the disciplinary hearing officer and the records that were created contemporaneously at the time of these events and it determined as a matter of fact that he had been afforded repeatedly the opportunity to identify and call witnesses on his behalf and the fact that he had repeatedly declined to do so the records are that he was presented with the very least if you look at the two separate forms that were presented to him that he signed these were presented to him over two weeks apart they listed the opportunity to provide both the names of witnesses and the complaint recitation of facts which contradict the record that you just recited and that you can't ignore that and as a result he at least gets a hearing to sort that out well there's two things about that your honor the st one is that that's that's not ordinarily what happens within corpus proceedings and if you look at just the rules that apply to tw empowered to invite the parties to submit records and evidence so that it can determine whether or not a hearing is necessary under these particular circumstances given the fact that in essence all of the allegations with respect to the denial  process came long after the fact these are things that he at that he had an opportunity to present to the d h show to the b o p s to complain about the fact that he had witnesses he wanted to bring he didn't do the inmate can simply remain silent say absolutely nothing and then after the fact after all the due process has been afforded after all of the determinations have been made that they can go back and complain about the fact well i didn't get this paper i wanted all these witnesses all of this these facts that have been presented to the d h o because all of a sudden as the court pointed out you will be having evidentiary hearing since every single petition in which all the inmate has presented is a denial of the underlying facts presented in the factual record and again this is a situation that happens every day in prisons everywhere across the united states this is something that a record that's why a record is created and presented this is why a declaration was provided by the custodian who actually reviewed these records to explain the basis for that d h was to turn anation and so when faced with all of these facts and all of these documents including documents with with mr rivera signature on them the district court drew the appropriate factual conclusion that he was afforded the opportunity to call witnesses but he just simply did decline to exercise that right and there is no basis for finding that the district court was clearly erred in making that factual determination that the that he had been provided with opportunity present  have is an officer crumbs across inmate standing you know why over a mop closet he opens up that mop closet he sees mr rivera standing on a mop bucket reaching for the ceiling reaches down closes the door later on it's found after the after the two inmates are removed from the area found that there is a tampered with alarm as well as a cell phone hit in the ceiling anything a last one of these incident reports were provided to the to mr rivera so that to the extent that he wished to challenge anything in them including any inconsistency is that he saw within that incident report he had every opportunity to do so this is not some sort of cover up or anything else he was presented with these records more importantly each of these these rewrites was the function of the the agency itself sending it back for  official summary up the chain said there is not enough information here to be able to sustain a charge against this particular individual this is the same thing that happens in front of obviously in in it this is not a criminal case quite obviously but even in a criminal  a requirement that he ruled out these errors that he somehow you know on his own find you know what the problem here is he was provided with the evidence he was provided with the tools necessary to challenge the narrative he simply decline to do so and that is why the determination based on both the the final incident report and of course on the the memorandum that was drafted on july th that was specifically cited by both the d h oh and by the district court when upholding this decision all of these facts were or in those were consistent it was mr rivera in that cause it was mr rivera reaching up for that cell phone it was mr rivera who was found guilty of possession of the cell phone if the court has anything more for me that was a thank you thank you  n your honor sure for sure so i don't see reaching up for the cell phone anywhere in the record i see him on the mop bucket standing down or on the mop bucket so i don't know where in the record that came from his st appeal the phone etc you know he didn't say i wasn't allowed to call witnesses he hadn't seen that yet and his other appeal does include all of that and that's the one that he filed in march of two thousand and eighteen and so this isn't something brand new  with the petition he did include that information in the other appeal thank you thank you thank you both for the argument this morning the case just argued for a very versus length for it is