good morning my name is vicki buchanan i'm here on behalf of michael wiccan mr wiccan was assessed thirty days of good time credits and in order for the court to have assessed the thirty days of good time credits the senior hearing officer needed to find one that there was a violation of the rule but more importantly what triggered the loss of good time credits was whether there was a serious violation of the rule in other words was there a serious disruption a hold the hearing officer what the two inmates he wanted to call would say at the hearing itself that's right there is nothing in the record that says what he said at the hearing itself they were  they were in the in the library but i don't think there's anything actually in this post hearing bright material includes affidavits from them that they would have said there was no disturbance right but they i don't i don't know what basis told the hearing officer there were eyewitnesses no there's nothing other than no there's nothing that actually refers to what he told the hearing officer at the time of the hearing and there's a lot of affidavits from him arguing his case i'm trying to time and it's a hazard to the institution have all these people running back and forth from their cells it's quite another if he says i want to call two inmates and the hearing officer has no idea why or what it would involve and i don't know which it is based on the record i don't know what it is either i would assume that the hearing officer would assemble who are these guys i mean i just i'm just assuming that there's nothing the record is very very very sparse in terms of what happened at the actual hearing the main thing is even before the witnesses though i think the fed the focus of this has to be on whether this is a serious there's any evidence that this is a serious offense even if you get past even if we assume that there was a violation of this section three o five a there is nothing in the record that indicates there's no evidence that this was a serious violation there is a very was and there was no evidence i thought that at least that your client was standing up and shouting and and that may have been exactly the reason why other people were witnesses to the you found to notice that it was happening and so i don't understand why there's no evidence and he was shouting says raising his voice he didn't didn't say shouting he raised his voice he admitted that he was who had raised his voice and that other people looked up from their work that they were doing in the library but it wasn't like there was disorder she continued to have a to copy his papers that he was looking for he went back and sat down in his seat when officer tatum came into the room she said mr wickens going to be leaving the room right now and that's when he said why are you kicking me out again and i was at the very most of us maybe in exchange of one minute at the very most in this entire in this tire proceeding there's no evidence that there was any serious disruption to the operations of the facility none he returned to his cell he returned to his cell on his own they didn't push a button they didn't call the it's not sure how does that i'm sorry an uprising how does that effect seriously affect seriously disrupt the facility how does that seriously disrupt the facility in college every now and then somebody would raise his voice and holler food fight and then everybody would start throwing rolls well i think that if mr if mr didden his raised voices create a risk of a prison uprising in the in the prison library and all they did the only evidence we have of any disturbance is that a few people raised their heads who were reading and looked up see that here raised voice well it also says you know also says at least in the hearing report that he caused a disturbance disrupted others and was allowed an argumentative so if he disrupted others which was the statement made that's a disruption of the library and if some evidence may not serious a serious disruption there's nothing there that shows that there was any if there was any indication that anyone was going to be violent or harm it so is that your definition it has to be violent for to be a serious disruption in terms of the act in terms of the three o five it says it has to be might lead to violence or to disorder well disorder isn't violence but in terms of being a serious  i don't know if you know serious disruption of the facilities there was no disruption of the facilities if you talk about people lifting their heads up from their their law like their law books i that's that's what the guard gomez case was talking about internally plausible that the librarian just had it informed because he'd complained about her before and that she was cooking this up the problem is two things that i see with your argument one is  there is no evidence one way or the other and the other is that the rule doesn't say did cause serious disruption it says might cause serious disruption and a raised voice it's a little hard to say why you can't fit it under that very loose rule in term in terms of the serious disruption i think it says that it did it well the rule says it i don't have that in front of me in thirty three three zero five to see says a serious it implies that a serious reason i'm looking at three thousand and five and it was i was refrain from behavior which might lead to violence or disorder or otherwise and dangers of facility that's the underlying office and order to assess the only basis upon which the good time credits could be assessed if there was a violation of three o five he could be disciplined left out of the library he could be locked down but to lose the good time credits which is what triggers hill what triggers hill is the is section three three one five three three of which is makes it a serious offense not just a regular rules violation but a serious rules violation amat authorizes the loss of good time credits and that particular provision three three one five eight eight to see says that there was a serious disruption of facade of the facilities and that so that is a reason why the hill some evidence needs to be there as to the actual disruption of the facility not just the disruption of the room itself under his or our sort of thank you the district court's judgment in this case should be affirmed because the state courts reasonably applied the same evidence test articulated in superintendent disperses hill here the state state court had in its record evidence that the individual cause a disturbance in the library other individuals response to that disturbance by stopping their work and this happened in an open environment that is sufficient evidence underhill my concern on the evidence is those two inmates that weren't allowed to testify we know from their affidavits they would have said there weren't any disruption and they looked up and then they got back to what they were doing nobody moved nobody even walked around the room to see what was going on and if we believe their affidavits the important thing is they didn't testify and the reason they didn't testify is the hearing officer wouldn't let him now i was looking through his explanation to see why he didn't like them but as far as i can tell he didn't say i didn't let him testify because it would be these guys were troublemakers and bringing them to the hearing and getting them back to their cells was too risky that would have been a good reason but under the precedence but he didn't say that all he said was that their testimony would be irrelevant and i don't see how he could say it would be irrelevant if they were eyewitnesses but i also don't know if he knew their eye witnesses i don't know much about the two witnesses that the honors referring to dealing cooper those those inmates were excluded based on relevance but the affidavit that you're referring to not referred to those turned in to individuals in essence those affidavit asked to them so the hearing obvious or excluded their testimony and that is what the affidavits actually refer to are those three individuals if we go back to the record the confusion here is that witnesses of dealing cooper that claim was never fairly presented to the state courts and in not being fairly presented to the state court there is no adequate record for this court to review instead the cape the claim that is before this court is three on a dyna fide witnesses i thought his petition to the california also needs to say operative facts and operative facts and that states the priem court decision has to do with the three identified witnesses in that petition he argued that these three individuals that they were improperly secluded at that the senior hearing officer had falsify the record by saying that he had no information as to these three unidentified individuals the claim as to a deal in cooper was not presented to the state supreme court  there so in a roundabout play going back to the court's initial question of what was in the record regarding of dealing cooper what's in the record is that they were excluded because of bell events what they may have testified to what they could have testif to is not part of the record and it was not before the state courts to consider in their analysis of a due process claim because it was not fairly presented to the state court so here when you have a situation in which the properly presented claim is whether three unidentified witnesses were improperly excluded the state court had enough and their records identify that if that information wasn't before the senior hearing officer if the affidavits and the record for post dated the hearing it was reasonable for the state courts to conclude that mister wickens due process rights were not violated in this particular situation we're looking at the reliance we're looking through the lens of hill which is highly differential we're looking at minimum due process protections are set off and and we're looking through that lens through at a highly deferential standard and in doing so we we for double deference to the state courts decision and here it cannot be said that what the state courts had done was unreasonable what is what is the some evidence that there was a serious disruption in the president's established and taking way good time does required process what is the evidence that there was a serious disruption in this particular record the state courts had before the fact that mr wiccan stood up started arguing with the librarian i thought he went to the library and so the standing up wouldn't be disruptive you went to or to ask all the record establishes that mr breckon was trying to get a an administrative appeal copied and that the librarian told him that something was missing it the librarian testified in the one fifteen record that he started arguing with her being just ripped it so then she had requested that an officer escort mr wiccan out and at that point when the officer responded he became angry his voice was raised and he was saying what you are you kicking me out of here come check on my computer the record evidence supreme before the state court showed that other inmates stopped their work to see what was happening counsel would you respond to what i understand opposing counsel and argument to me that serious disruption of the facility has to mean the whole facility and can't just be a portion of it like the dining room or the library or an individual potion i think there's two nuances that question your honor under state law yes there must be a disturbance of the institution but that would include the law library that is part of the institution when we're looking at it under the umbrella of hill we're going to be looking whether there's any evidence to support that this shows in the record and here there is sufficient evidence in the record the state courts in evaluating whether the state courts unreasonably apply clearly established precedent you look to what was before the record and the law at the time and the law at the time is helen wolf and in this particular case there is no way to do it no way to say that fair minded jurors would all agree that the state court unreasonably applies supreme court they are not supreme court authority if in fact gomez was the state of the law when this occurred desired effect your analysis no as to whether or not this was a serious no you and i would don because in evaluating whether the individual violated the regulations under state law you would look at the factors and here the factors are present so wouldn't change or analysis under state law we would find out if i would argue that it decided before this incident what impact do you think that would have on our analysis of whether some evidence was sufficient on the record to support the the allegation even if gomes had been in existence  gomez would have no import to this court is clearly established united states supreme court authority you know granted and as far as i can see what the disorder that you're claiming is the disruption that you're claiming was was that other inmates in the library who were working at looked up and thereby were interrupted in their work you have not mentioned any other disruption that either the disruption what's interesting other inmates in their work and disrupting the order larry ordinary running of the library the library as it is in a situation in which he made me think that writing the orderly running of the library that's very general language give me more concretely what the disruption was to the running of the library well in the record here the disruption was you had the library had feeling the need to have mr wiccan escorted out because of his behavior it's documented there in the record on what you felt and i didn't think we had any testimony about her feelings oh i apologize your honor i misstate it's not about a feeling about it's the act that i'm referring to the fact that the fact that she had i'm trying to find out there's a difference between somebody thinking their word is law and anybody who disagrees with them is disruptive and somebody who is in a position of authority and when they try to exercise their rightful i thort there is real resistance to the point that their authority cannot be imposed and i'm i'm trying to find out exactly what there is here and i can't tell whether the librar just had it in for the guy as he claims and didn't like somebody disagreeing with her or whether there was a real disruption i'm not too impressed by people seeing that what's his name which is not happy with the librarian and looking up to see what was going on and then going back to when that happens all the time when you're working and somebody pokes their head into your office yes but that but someone poking your head into your office is significantly different situation than a cop and then to be any evidence of it or even any claim that that's what the why barry and the hearing officer feared that they thought that might occur the facts of the facts of the record are that there was a disruption in the library whether or not it was corrupt from was people look up stopping the normal operation of the library the librarian was there she's there to facilitate the library mr wake and became disruptive she had to stop what she was doing as well and deal with the situation there were other inmates in the library who were reacting who actually stopped what they were doing that is a sufficient just represent long very quickly the chronology as i understand it mr wood can brought a paper to the library and she looked at the paper and argued with him over it was and it was a paper about her so then she copied it he went back to he said i'm not going argue with you he went back to his computer and did his work she gave him the copies and then as soon as the officer tatum came and nothing else was happening an officer tatum came in and she said oh by the way would you take mr witt can out you know i'm asking that he he leave and that's when you argue with her you have so little tell me where to look  that's all in that's all in the report that's all into thirty eight through in the entire report to thirty eight through to forty two that's the entirety of the evidence in that judge judge kleinfeld you talk about the  witnesses now i don't know you know it just seems it's says that the witnesses subject requested to have the following witnesses present at the disciplinary hearing listen this is caller a via and cooper now it would be even more arbitrary if the hearing officer didn't say well why are they going to be testifying to say that's irrelevant so there's got to be some implication that he asked what they were going to be testifying to obviously we don't know and then finally in terms of the  really was a disruption because they had to change their schedules blah blah blah blah blah because of the hunger strike and that's why the gomez case came out and said well that's not the kind of disruption that this statute is referring to but but that's also not the kind of disruption that occurred here and i notice that you read not from page two forty one where it talks about raised voice disturbance disruption loud in our humanity which is quite different from a longer strike i'm sorry i didn't listen it's quite different from hunger strik and it's an actual physical auditory disruption rather than a mere schedule change right but at least in gomez there was a facility disruption not just inmates looking up from their work and the decided after this case and we're looking  i don't know i search to search for that i know that if it was a federal case after that at that time a supreme court decision after the time then the state court would still be bound by the earlier decision but when it's a state court its own laws that the federal court then has to apply i don't know if that timing makes any difference i really search for some rule to see if it did or didn't i could not come up with anything ok thank you can't you the case just argued will be submitted for decision thank you both for your arguments and we will proceed to argument the case of rios versus wal mart