good morning your honor may it please the court i'm pamela b hooly on behalf of the appellant tom carey in this case appearing with me for argument today as well will be counsel pat whalen also the attorney general's office he's here to address the constitutional question posed by the court in its order of last week i'm here to address the merits of the appeal which is brought by the warden because in this case carl martin irons was denied parole based primarily but not completely on the facts and circumstances his crime his past criminal history his substance abuse and some deficient answers to responses and responses to questions during the hearing at issue in this case which heard in two thousand and one the state courts consistently have held that decision finding that it was supported by any standard under the antiterrorism and effective death penalty act of two thousand and one the only way federal regardless of whether otherwise he's a suitable candidate yes your honor it would be appropriate when the crime itself reflects that there are public safety considerations particularly in this case where those fact appropriate factor could be the exclusive factor during the entire term up to the up to the end of his life it can be in some circumstances your honor that is why the term is to life with only the possibility of that possibility and it's within the board's broad discretion in assessing the factors of the crime to determine whether those factors do implicate public safety considerations there might be a difference for example where you would have what could be described as a garden variety second it lawful if it's not for the a longer period but for the entire period in some circumstances yes your honor it would be because that's what the statute contemplates that in some circumstances the crime is so egregious that the inmate should be incarcerated for the entire and so that kind it does not have a possibility of parole that would be within the board's discretion if the board felt that that crime did implicate public safety considerations yes your honor that you can't  possibility of parole but the board might determine that that crime continued to reflect on what kind of public safety concerns there would be it might be that he presented a danger based on that crime it may well be th for the rest of his life and again your honor it doesn't automatically disqualify it may be that as the passage of time continues and the inmate has more distance between him and the crime the board may well believe in the context of all the other factors that the inmate would at that point be suitable for parole but in this case that didn't happen and more importantly in this case given the context of the board's impressions during the hearing that some of mr irons responses indicated that he wasn't quite ready for parole because they weren't sure how we would react in a similar circumstance that provided an appropriate basis in this case to deny parole and there was no clearly established united states supreme court authority that would prevent the state courts from upholding the parole on those bases and that's why the pilot seeks reversal in this case because there is sufficient basis to find this inmate unsuitable given the crime the past criminal history the substance abuse and those answers that can feed an impression of gee mr irons i'm sorry today you're not quite ready and he is eligible for continued consideration that's another basis for the appeal in so far as the district court's decision in effect ham strong the board with respect to a remedy assuming there were a due process violation in this case the appropriate remedy would have been to return the matter to the board to consider all the facts and circumstances together including the crime do that again and although it's not binding on this court a california court considering a similar proposition suggested that it would be appropriate to allow the board to exercise its administrative decision making process rather than imposing a judicial determination of how to weigh all the circumstances so that in any even federal law rass that the states should be allowed to proceed in accordance with their own laws nonetheless the up the the other problem with this case is that unfortunately the district court didn't have the benefit of the state courts interpretation of its own statute in the damage that matter in d or the south california supreme court made clear that indeed an inmate could be with hell withheld from parole for the entire current if his crime reflected on public safety considerations as it does in this case down in berg's cases instructive for analyzing whether it was appropriate for the board to rely on mr irons crime because in dannon berg it was a similar crime that sustained violence and then after the twelve sho two more stabs to the back and again in context with the answers that suggested that he wasn't sure how he would react when presented with a similar circumstance that provided a sufficient answer was no is that to zero for the to await the panel members specifically comments on multiple responses he wasn't talking about just one one example he did try to give an example that morning of what he recalled and what his impressions were of how the answers had come across and i think it's telling that he said the answers aren't quite there so that contemplates allowing the decision maker who was in the room and heard the words and saw how they were delivered under the a t p a deference standards that is entitled to a presumption of correctness and should not have been overturned by the district court in this case in summary to allow time for co counsel to address the constitutional questions it has to be remembered that the state court decisions at this time did not violate any clearly established united states supreme court already in any manner because nothing suggested that it would be improper to rely on unchanging circumstances determining whether it's constitutional or the second substantive question is whether or not the state court adjudication was contrary to or an unreasonable application of clearly established a cream court precedent and in answering that second question to the federal court can look to any authority it chooses to in fact this court has held that it will look to its own authority to determine what is clearly established law when congress has granted that authority under twenty two fifty four there's been no choice of law restriction by congress rather there's been simply a restriction on the scope of the remedy when the federal court decides to deny a b s relief under twenty to fifty four  also an unreasonable are fine for a decision by the state court it's not enough to really have an unconstitutional ruling it must be unreasonable so the remedy is question if you characterize that as a jurisdictional grant only to review i'm reasonably constitutional violations then you could well be correct if you character that you can't grant relief i'm less a constitutional violation is an unreasonable one then it's a different question the question a phrase differently i don't know that the outcome is any different  vindicated if the court the comprise view of the right couldn't tell clearly that they were doing it or they misconstrued the constitution in a way that some rational person might do it the court is free to rule on the constitutional question that is presented in everyday basis the court can find constitutional lawyer has no problem with that but that is not the end of the inquiry the court must make an additional finding before it can grant maybe it's relief because that is the question that congress has given to the federal courts to decide whether or not to grant the writ congress has not given to the courts simply the question of whether there was constitutional error in the state court proceeding review from from in a direct review context if it hasn't answered the question it may certainly look to the lower federal courts views in deciding the constitutional question nothing that prohibits that but it's only a temporal problem with it there is also the effect of power problem the judge reinhardt was trying to address i think that once this court determines or the district court determines that there has been a constitutional violation that is prejudicial to then prohibited by congress from effectuating that decision that clearly contrary to united states has klein and those cases where congress changed the rules in order directly to prohibit an effective remedy to the person who  constitutional claims so i think i'm both aspects of the statues and constitution that's sad state just on the merits of this case are just fundamentally wrong in their characterization of what clearly established supreme court evidence we heard it in the earlier case in immigration context where your opinion ministry decision but that's that's not the way it was brief so even if i step some evidence which is why i'm willing to do there is no evidence before the board to support this decision other than the arbitrary decision that while the crime was bad i mean it was especially cruel and atrocious and the problem with what the attorney general's argument was and it directly goes back to your original question  what is it about that keynes that crime it is his current danger to society and the regulation the phrase in terms of does the president reasonable risk and danger to the public and where it is important the facts about the crime and the reason that the board has been very deliberate information gathering process is to find out what is it about the specifics of this crime that may not be in the judgment that may not be in the probation officer office that's why we want to hear from victims that's why we want to hear from the district attorney's office how does haven't so you back up the federal court couldn't grant relief at that point if the case instantly came got from the board exhausted and went through all the procedural requirements and was before the district court judge at that it's not applying state law the state law is does he pose a current risk of danger to the public now so at that hearing they have to decide what is it about the crime the facts of the commitment offense that link that behavior seventeen years ago to his current dangerousness dangerousness and the reality is that the board is always going to have something before it in may be that it has someone who was hidden in  for seventeen years not done anything wrong not done anything positive and in that circumstance they can look at that record and say well there are these factors for example in this trying to case he admitted drug use alcohol use he had no moral compass what i believe is the way you phrased it he was in a position where he was angry and he didn't manage that anger and it came out and he very criminal immoral act well if he sat in a cell for seventeen years there would be a linkage between that act in his current unsuitability because there is nothing that shows he is now capable of handling not drinking dealing with frustration dealing with things any constructive positive not a danger to the society way so the notion just part of the rhetoric that's difficult in these cases is that we speak in terms of they only rely on the commitment offense and that's never the case the board has the central file  before it has a psychological report it has the council reports where the board makes them the stake is it does not say where that connection is between these facts that her story can and changing and he's current dangerous characterized it if you were a different context if he said you know you didn't you admitted killing fourteen other people and that's not in the record that would be an arbitrary basis for making this decision this was not that egregious but the of make that determination on the basis of what they did they have to see whether they have more suitable my answer is not as simple as they can consider it is not numerical but it is mathematically still well defined it begins at seventeen years and even that is a term of art because because of custody credits and because of behaviors that seventeen years isn't recent really calendar date seventeen years it could be fifteen years it could be could be something past the other end is still well defined by statute it's when he no longer poses a danger to society how that is determined that's the question they have to answer and the commitment offense itself cannot trumped that question we cannot allow the state because it was the state can change that rule prospectively but the rule when he was sentenced when he committed offense was he would be released once he no longer posed an unknown reasonable risk of danger public and the commitment offense facts cannot veto that question and in fact in this case one of the reasons that the district attorney the probation office does sentencing information the victim information is brought into this question is to find out in those egregious cases that just right hard is probably think you know i mean we can all come in that in invasion and there's lots of information that doesn't make it into the court record about the crime or that we find out in this case there is no extra information the district attorney's support for his parole is important because it's telling the board there's nothing extra out there in fact in the later here in the district attorney says you know the jury got it right this wasn't a first degree murder so it's not like the rosenkrantz case where the governor points to well you're minimizing your role there was there was much more deliberation in your crime really was factually on these other things that the jury didn't investigating officer at the time that he was arrested when he you know he intervened in having an innocent person arrested for his killing and the investigating officer i've never seen this in a record i don't think any of you have said you know he is an honest go to your hypothetical so it's very hard because we already have a case where at the initial hearing there was already a breakage between the horrible killing and the you know taking about life that happened in a recognition of  person at the time he killed who would be a risk of killing again and he has then gone out within the confines of the prison through his use of violence prevention programming through his kerio programming through his involvement in catholic chapel through his studying involvement in the been a buddhist ministry he has sought out all the mechanisms that he can find to redefine our moral center for him and that's the question that's an aspect of the question that the panel had you know w statute didn't exist we wouldn't be here i mean that's where we go back to green halls and we go back to alan in the board of pardons versus allen it is that statute that defines his exit date and that everyone had indeterminate life sentences and part of the problems were that nobody would know when they're going to come up when they were going to get released if that was the scheme that was still in place there would be none of these cases in federal court what order i mean he has looked not just at this case this hearing but the next three hearings in the same problems repeat there is nothing that the state provided to the district court that shows that there's anything else out there that would district judge did second your question about you know now the board's aware that it's doing something unconstitutional judge follows through judge carlton know that the board is aware that what they're doing is unconstitutional in a generic sense  in this particular court's experience i mean they have had been granted relief where they've just said remained it to the board and then have gone through the experience of post judgment but again sion aren't you ignore the order temporarily you ignore the is that the focus of that subsection it's public safety and the commitment offense and all the other things that are mentioned in there are factors the criteria that they can look at and those are reflected in the in the  kind of regulations where they say you can look at here are some criteria supporting unsuitability here other criteria and in fact the board is obligated under state law to look at all available evidence why we get all this import from other parties but the if i may start work consul began with the three cases she's relying upon green holt's allen and hill green also now and nearly held that procedure is necessary notice in an opportunity be to be heard and a decision  mate could be incarcerated for the entire period of time namely to life that that suggests that there is not a liberty interest in release on parole what there is is a liberty interest in consideration for parole and that is what occurred here with respect to the hill case screen holds itself suggests that he'll make might be too high a standard for evaluating parole consideration because with parole what the board is trying to do is test in this context i'm out of time but if the court would like me to continue i sh more like an arrow that can continue forever nothing in the statute nothing in clearly established united states supreme court law says that the crime is an end point that is fixed and that the board must pick a point before an end otherwise that c