course straightforward reason the bureau prisons violated the rodriguez's due process rights legally convicting him in the ministry of proceeding attempted escape of mr rodriguez has a valid you can't use twenty to forty one monetary damages and he got the same punishment either way so where's the harm yes there are two full of harms a judge floyd first the forty one days of last good time credit remain as a sanction only because of the on last second conviction yes the forty one days were originally opposed because of the conviction but that conviction has been reversed by the bureau of prisons own action so the only reason now the forty one days of good time credit are laws are because of the unlawful second condition me if the second hearing was illegal you don't challenge the first  the last time or the one days legally entered you know if you say the second one reversed the first one on the conviction then you have to accept that part of it you are accepting that part that but then you're saying they could not have found liability for the escape you've got can't have it both ways if the second one reversed the first one properly reversed it as you are then you're stuck with the second one and in his various k v s protections the conviction on be attempted escape charge the bureau of prisons on his own initiative vacated the are critics charge finding him not guilty that he did not in fact commit that charge but they did that following the second hearing yes but the government and hearing is the infected hearing according to you but the government has not brought any type of cross appeal or claim of its own to reinstate the narcotics conviction will it can't then have to reinstate it if you're successful in if you were successful in vacating the second hearing because it was illegal it violated due process and the second hearing was a naughty what is challenge niemeyer is the second the conviction on the attempted escape charge mr rodriguez did not appeal the vacant chair of the unit if you don't buy the in any way that's a very serious problem you have that he did not exhaust is remedies on the him well in the first hearing judge duncan the hearing officer found that charge based on the alleged scheme to do the switch a roo to be far fetched them hard to believe that the car potential informant that was the basis was not credible now in his statement he said i think it's s j twenty seven he says i'm not saying i did not attempt to escape from these facilities i'm just saying that i never used or attempted to use in violence to carry out his plans to escape now and he had notice there was a hearing he had an opportunity to be heard he unveiled themself of that or review or the disposition asked about a second hearing yes the second hearing should never have been held at all so it doesn't matter that he had notice of the second hearing and a right to participate in the second hearing but that is it does but that has to go to do that has to underlie your yes that there should be no hearing at all there would have been no a second trial and therefore no conviction because the apartment of the bureau present unique argument in a due process clearly that all the should have been hearing an opportunity to heard an opportunity help clarify that because the bureau you have to go back to the bureau of prisons regulations the bureau has established a regulatory program the purpose of which in the regulations so state is to define the process of the bureau must follow to impose sanctions on inmates continuing the regulations provide that this scheme is to make sure that discipline is not imposed in an arbitrary and capricious matter the regulations are highly prescriptive and  prescribe a process a series of steps the bureau must follow that process was followed and resulted in a hearing at which the hearing officer determined the escape charge was far fetched  that liberty interest violation then this four circuits controlling standard in the right and this court has held the baseline determination to decide whether or not the transfer or changing repeating it or clarifying it yes ma'am in the in c'mon decision from this court at seven ninety one f thirty five seventeen this court held and i quote the general population is the baseline for a lee general prison population where mr bradley was was in prison in fact the resit case itself your honour's states that eighty x is the most restrictive and secure prison operated by the bureau  conditions are undeniably harsh that's not me saying that those are quotes right out of the tenth circuit opinion also looking at it from his transfer on it's face appears to be indefinite we know from prior extraordinary and duration that's what we look at it yes your honor and again the there's no dispute about that the conditions of confinement in terms of how many hours a day prisoner must stay in the cell the limited amount of contact with other prisoners or family members but limited opportunities for recreational activities etc right down the line the entire purpose of eighty x supermax  me who have made more than one attempt to escape but i think that rather proves the point your honor is that we're yes but it would be the distinction is simply a reflection of the nature of the transferred to a deck supermax because of the unlawful second conviction of the conviction following the second rehearing but for that conviction he would not have been transferred and there is no the question can be no question on the bureau's procedures policies and regulations that a prisoner cannot be transferred based on false and accurate information if the second conviction is invalidated as it should be than the transfer necessarily must be invalidated what steps that he take after the second conviction was entered to have it reviewed he file i don't believe so your honor and certainly the government has never pointed to any case and valving that in this court's decision in the pronounce a dragon ice case as we said in our brief certainly seem to suggest that the premature filing could be cure all of them the government doesn't contest that in fact they agree with that and so we find ourselves here as a practical matter in exactly the same posture but the government would have happened which is on the first petition dismissed it without prejudice hearing you don't challenge the first hearing in the first position he got is forty one days good good time credits knocked on that was legal and that want at this point in time he's already been transferred to supermax number one number two this forty one days were appropriately found in the first your argument is the legal and that's in place and the transfer to supermax has already occurred and that's where he is but the transfer your order can be undone but he has no answer to that in that was why i asked it there's nothing in your brief the talks about the transfer but yes in the second in the first t v s petition he had not yet been transferred at the time of the second his petition if he in fact had been transferred that's right and so when he first petition while he was at least he filed the second one while he said so permit so is it any problem with that judge to believe the  know no harm no foul we should excuse it and the government will concede that this court has the power to excuse the failure to exhaust and that's addressed in the dragon ice case cited but both parties imposed to ensure orderly administrative proceedings and orderly judicial proceedings and it's done for very important reasons to enable the administrative body to take corrective action to develop a factual  conserve resources to allow the judicial branch to make meaningful decisions based on the full record and you can't just ignore all those and say well he eventually exhausted them after you  for your position i think we've heard from opposing counsel batting q so let's start with the basis of your assertion if there is no protected liberty interest in being transferred to a t x r because it's not a typical and a typical and significant hardship as construed by prevailing precedent the case in the tenth circuit examined that on a full record and determined that it was not an actionable due process x system is not a significant and a typical hardship to the normal prison population and there are a lot of  that support that but that's the short answer and that's before a prisoner can has a due process right there has to be of an infringement on the process right and that's just one of the normal incidence of prison like you can end up in florence a dx and it's not a violation of your due process rights it's a chance you take when you go to prison and in the inclusive in being s prison you know there have been schemes where you know there's no right to participate in the process or there's no way to get back out but that's that's not i think it's clear from the record that there is a step down program that's address the reason that case and this petition or demonstrates that factually he went there in two thousand and six and by twenty thirteen he was back at u  his report speaks in terms of conduct not terms of convictions of that's a word that's used a lot by the petitioner trial conviction but it's not of setting where you know three escape strikes and you're out and you go x it's based on conduct and the whole record is constructed in terms of combat that it's not a if you're you know found guilty of this escape attempt then of the government has created a system to do for if you give protections to the inmate against those transfers we have that here there is no dispute the government has program statement p group whether or not then due process were to see in the transfer proceedings i asked the court to look at page thirty of the supplemental appendix this is the hearing officers report from the transfer proceeding and he states there very clearly the peers about the middle of the page that mr rodriguez could not contest in the transfer proceeding his conviction on that attempt d escape charge so at the end of the day it doesn't matter whether he got notice of the transfer hearing had an opportunity to be heard at the transfer hearing or anything else he couldn't contest the factual basis that provided the necessary predicate for him to be transferred to unlawful conviction on the attempted he just did speak to it though and i read i was reading  was reading from the supplemental opinion a supplemental appendix in the hearing in the section where she is allowed to speak and he specifically addresses it the hearing where he himself s your honor i think we read it is fair to say what that statement is referring to is the two prior us the attempted escape from the instant the other institutions that resulted in his prior transfer to  supermax it is quite clear from the records your honor mr rodriguez has always contested this third conviction this third attempted escape charge he made that clear in the first trial that he had as well as in the second trial i think your honor the statement that you're referring to is referring to those two earlier as attempted escape convictions from several years prior not the one that resulted from the illegal second hearing but would it what about the if you look at the factual description on s g eight twenty eight it is detail in the hearing officers on report as a are mentioned he states that mr rodriguez is the purpose of the hearing is not to contest whether or not he committed the third attempt to escape all right so he had no opportunity in the hearing officer says or they're not there to debate the innocence or guilt he's been convicted as a result of the second legal hearing that becomes an accepted backchannel predicate and the necessary predicate and the only reason he was transferred from x is as a consequence of that illegal convicted had that not happened he would not have been transfer there's no dispute about that and your honor are you saying excuse me i really am this wasn't clear to me that the bureau of prisons could not have transferred him based on the facts that are laid out in some not use or attempt to use any violence these are front bindings you said that he had since retired from this type of behavior you further stated that while he was certain he would be recommended for it yes placement expresses wishes that he wanted the documents he the supplemental pending the on hearing officer writes this hearing was this hearing was not intended to determine whether or not he mr rodriguez committed prior charge prohibited acts but simply whether or not he met the criteria for the preferred placement they did apply race to the college game is they your argument was that he had three escape attempts in the first two he had already paid for and should not be considered is they did consider wrong because of the risk not on punishment the sneers a guy that has tried three times to escape undisputed no your honor that's what he said no the that argument sounds in the notion that he's been punished or that he can't use it again but there is if he tries to escape seventeen times when it comes to the eighteenth time they're going to put him in a secure prison again  all those times he has that risk factor but here the third conviction that is are the eighteenth one that hypothetical was unlawful but for this third conviction that as was a consequence of  referring to the earlier convictions but clearly on page thirty the officer hearing officer says they are not there to revisit the fan off they're trying to assess whether it's appropriate to send him to a more secure right on the assumption or the accepting the third conviction not say on base in iran that finding he says i'm not here to reverse that finding or to assess that finding i'm here to decide the facts or whether we transfer right but had there judgment that may be correct but i don't think going back on that compels the conclusion that you're presenting to us that that was my only point in in referring back to the supplemental then there should be