is substantially the order that the magistrate judge recommended to the district court on the basis that there was no evidence to support the california parole of dorothy's determination that he parole board determination that's that's that's the issue yes your honor now what the district court did with make as a threshold issue accepting the fact that there was no evidence to support the parole authorities determination determined that that did not matter because california is parole system did not grant or create a right for a prisoner that was protected by due on the first issue although that was a momentous decision by the district court it basically shuts gates of the federal court to any and all prisoners challenging denial of parole as fundamentally unfair but the reason why i don't want to spend too much time on it is because it's so untenable starting with first of all the fact that the united states supreme court never mind this court's decisions but the united states supreme court's decision in nebraska and illinois concerns that shoots that were substantially the same as the statute here the language in nebraska was the board shall order his release unless a b c the statute we have here says the board shall set a parole date unless it's the same statutory language or if you were elevated his crime to murder all of the evidence shows that he has addressed that chronic alcoholism he valid from his hospital bed when he learned about the death he would never drink again he never has drunk again he's been in treatment since one thousand nine hundred ninety two when prison authorities first provided him the opportunity to get treatment for his substance abuse and alcohol abuse by the time his hearings came around in one nine nine in two thousand there was a consensus of opinion among the psychiatric in forensic evaluation that he had addressed his alcoholism problem that he could safely be rt be released because he had insight into his problem was an intern i'll had program set up for when he was released had tremendous family support it is only an act of criminal violence there is no prior criminality in its or no prior violence no juvenile  history concerning violence he's programmed as much as you could have him do and you have the counsellors also saying that he presents a low risk and all the parole authorities do or keep coming back to the fence you committed this terrible murder which we know is what occurred but it's contrarian this is what big this talking about to the whole establishment of the parole system that you just keep going back to the offense effectively make it a life without possibility of parole sentence deny the prisoner any chance and hope you see with the materials that have been most recently submitted they all agree that mr done anything and everything he could possibly do to make himself suitable for parole all he needs to do is to keep doing what he's doing he keeps getting psychiatric either you asians that say sure there's always a possibility of real laughs but in this case mr sas has minimized that possibility to as much as we can ask any recovered recovering alcoholic to do so and yet you have the california prolife there already is becoming more and more out of control in this case and generally now in the year two thousand and six six years after they've arbitrarily and capriciously denied him parole against all the evidence they have him deny saying there's not even a reasonable possibility that you'll get parole for the next two years so we don't even have to consider you for parole for two more years he's way beyond as i said earlier any time that the board would say that the california system if you are found suitable for parole sets up guidelines and major cities to carry out this uniformity for second degree murder being fifteen to twenty one years with good conduct four months off credit for every year you have done well he's done more than well in his eighteen nineteen years of confinement to minor just the planners let's take off eight months there he good morning your owners please the court truly garland on behalf of the respondent the decision to release a life inmate is inherently a state process that is not entitle to any federal due process protection in last in that rare circumstance where the state creates an moment by the use of the mandatory language in its statutes in determining that just that question federal courts are bound by the state courts interpretation of its own laws the california supreme court's decision last year in van some evidence is required to support a parole decision income i find that public safety is the paramount consideration in california the board the court also endorsed the board's longstanding practice of deny parole if it determines that the inmates release would jeopardize public safety in california the court in indiana board considered the presumptively mandatory language that this court looked sur and found that the shell unless language is not necessarily mandatory in the parole scheme in california in doing that it looked at the legislative history which originally had said that the statute which originally had said that determination is based on the regulations which instead of requiring the board to set a date actually requires the board to deny a date in less that finds the the inmate doesn't pose a risk to society and the board's regulations are discretionary there's nothing in the language of the regulations which require the board to make a checklist of objective criteria and then release that inmate once they find that criteria instead they're directed to deny parole if in their required to consider the regulatory circumstances but that isn't what greene holton allen found is determinative as far as the liberty interests there's no question the board has regulations that guide their subject to review for some evidence but in federal hate vs the question is not what california provides the question is whether the state courts rejection of the due process claim is contrary to or an unreasonable application of united states supreme court authority application of the standard or contrary of that stuff ok so first if there is no constitutional violation we don't have to decide anything else well but in determining whether there's a the state courts in this case rejected mr sampson's due process claims because again i would say that it is not contrary to u s supreme court authority because that doesn't require some evidence if it did that would not the state courts rejection of his claims would not be contrary to u s supreme court authority under the some evidence standard that is that that is if any evidence at all exists it can be meager in this case it's not me mr sas didn't have parole scheme prior criminal offenses and the crime itself are paramount considerations for public safety he was not deterred i certainly can't say that whether or not the board will find him suitable but as far as their decision that he was unsuitable at this time that is supported by the record he not only did he have these prior convictions he rejected an offer for a ride home which it would have protected the public safety he went out and bought a couple six packs and would be there will always be together in your analysis there will always be some evidence in the record that would support a parole board decision that he is not suitable because he'll always have th process under california law i i think that that is what the court has said he obviously would have an eighth amendment challenge that he could bring in his chair if a sentence became first proportionate but that's not the allegation here if it's more egregious than the minimum necessary here although implied malice murder is perhaps it requires less intense than some other murders in this case it was certainly a very egregious implied malice murder because of his prior history and because of his actions of fleeing the scene and because of the actions that he could have protected public safety had not been deterred by seven prior convictions for it to you i and he still went out and killed an innocent woman and her unborn child california cases since dan and byrd have regularly recognized that there remains a due process legitimate expectations of prole we cited one of them in our reply brief in r scott one thirty three caliber fourth flight seventy three that specifically cites big c and there is good lessons in that case i don't think the court is interested particularly in the lower court decisions in federal court with ten or twenty west law sides to that effect if it requires or or finds that of relevance the real point is that california law even up to and unless the board finds in the exercise of this discretion that they are unsuitable for parole in light of the circumstances specified by statute and regulation and vandenberg page ninety seven said as we have explained section thirty forty one expressly instructs the board to set a parole release date unless it finds and we know the finding that there that the prisoner would pose an unreasonable risk dan emberg really underlines the importance of a fundamentally fair determination to that question of whether that on the last applies in this case because as vandenberg makes very clear that's the make or break determination between a prisoner's continued incarceration finally got his final yes there are three there was a petition for review that was denied and i think we included that in our  citation and there are other cases that are not included shipyard is one that comes to mind if the court requires we could we could provide that citation but there are several cases published that have come out that presently presents a risk if he were paroled so you have to look at the entire picture as scott talks about you know the requirement of some evidence what that translates into is some rational or reasonable basis upon which you can conclude that the prisoner presents an on reasonable risk of parole so when you look at the facts of this case in context with the entire profile presented by the  there may be and the statute kind of tries to delineate out like them if they're quote unquote especially heinous atrocious and cruel murder what we have here is a murder that under the watson case i mean it was it was controversial whether driving while drunk could even constitute murder so we don't have that here but i think even in that case your honor where you can imagine a very with the prisoner's post conviction history i don't know in that kind of hypothetical if you have a prisoner who's been incarcerated for forty or fifty years or however and he spent a half a century as a model prisoner and every psych report indicates that he wouldn't present an unreasonable risk i mean you do have charlie manson in there potentially parole bowl i would say in that case