in california there was no clearly established federal law that precluded the state courts from upholding the governor's decision to parole based on the circumstances of its crime does the state court properly affirm  would have made it a special circumstance or switch would have made it death penalty eligible but it was not charged or plaid as a first degree murder the governor merely looked at where they're at with the minimum necessary to support action counsel would you completing the minimum sentence unless there's some good cause to predict that he personally will be dangerous in the future the standard is unless the gravity timing and gravity of the fence suggest that he poses an unreasonable unreasonable risk of danger and the factors that the crow authority has to look at including the nature and the facts surrounding the offense so it's always going to be set aside the for all of the already determination merely because it disagrees about the wait to be given to the evidence ok really answer the question the question is is given as i understand the question given the state of the and again looking again at the state law with regard to california law  recent state cases it seems to me have said something similar to what i was saying to you with regard to the first degree second degree murder situation i e whether and whether we can rely on a second working murder case on the fact that it's more like a and their current risk which i think might be what you're getting at the state statute that creates any due process or a liberal interest also sets forth the criteria for how the governor goes about determining whether or not there's a current risk of dangerousness and they look at the crime they look at the crime they look at the other factors they balance them i mean it's your position that even if this person had been charged with first degree murder one could not be found to have had a particularly serious version of first degree murder because it's a particularly serious version of second be relevant and terminal whether that's a particularly egregious first degree murder and if it's a particularly egregious first degree murder they may be denied based on the commitment offense alone does that answer your question be there could be a special circumstances involved but other than that i'm not sure interesting art is this thing is that there is no clearly established federal law that prohibits the state courts from upholding the governor case because the governor is required under state law to consider the commit an offense and there is no ninth circuit case or u s supreme court case which holds that the governor may not rely on the commitment substantial evidence for federal purposes i understand you contesting that also but you use you said you are beginning this argument by saying we're not going there so let's not go there so leaving that possibility aside i common ground being that there is a and that there has to be substantial evidence or whatever that standard income and yes professional for purposes that seems to me what we have to allies not simply say anything the governor says is fine the state courts to look at this case they examined this some evidence and they concluded that in accordance with state law the governor's decision was sufficient and did not violate due process even applying some evidence to under the supposed annenberg and december of two thousand and five i believe it was the california supreme court decision and that's what this court has to look at in determining whether he's entitled to relief under federal law under and we're looking at whether the state court's decision was an objectively unreasonable is that correct is that the standards that were flying our position is that the only a pluggable law is a green hold that he's entitled to an opportunity to be heard and the statement of reasons it's not clear from the supreme court authority t that the standards set forth in hell even applies in the parole context because that was the prison disciplinary proceedings but even assuming that it does because the state court applied the state standards that standard was not here and the state court determination that that standard was not here was not reasonable it was not an unreasonable application of hill and it was not contrary to help thank you prison to begin with thank you question about that because if in reading the california cases very troublesome to me the basically two general philosophies of punishment and one associated with them an idea retribution with sometimes is called affirmation of the norms and the second is the instrumental function of the german bentham talked about deterrence of the special deterrence general deterrence rehabilitation initial of fans are not approaching it from the stand for the retribution but rather are approaching it from the standpoint of a predictor of future dangerousness and if that is the case it's impossible to predict what any individual is going to do to look just statistical evidence involving the population in compare the future conduct of those convicted of second degree murder with those convicted of first degree murder i would say certainly looking statistically is one tool to determine the risk presented what your author talked about in terms of the different purposes of imprisonment is actually discussed in the recent lawrence case we did cite in our reply brief but i think the short answer to that question would be the parole suitability determination is only concerned with incapacitation what you do for rich rector beautiful purposes what you do for general deterrence and so forth is determined again by the parole board but by the term of set after you were found suitable for parole the suitability determination is directly related to questions of dangerousness so that once you're found suitable for pro life doesn't mean you get out and justice be allowing first degree murder eligible and justice moreno made the point that your honor made the point of you know certainly when rosencrantz gets in his concurring opinion certainly when rose gets to the point where first degree murder would be eligible for parole it makes no sense to say he should be denied parole in this case because there was an element of premeditation and deliberation they're not soley on the basis of the commitment offense particularly subversive parole process under california law because california reserves the indeterminant life sentence for only the most grave exceptional cases that warrant that conclusion which can only be made when you look at all of the circuit all of the factors that go into that individual offenders determination of risk assessment board and according to the statute it directs the parole board you shall normally a parole date for the individual and it provides an exception a safety valve for those individual cases where you can say looking at everything about this individual that setting a date for him would pose an unreasonable risk so you have parole being the rule and denial of parole the exception and it is absurd look at mr boyd in his entirety and determine that he's an exception to the rule for parole for murderers because and we can start with the crime itself the crime itself titled the difference by this court number one that that mr ward has been a model in me for more then twenty years and has done everything that any body could reasonably ask of him to that evidence with the evidence it found was that this there was some suggestion of premeditation and even if it wasn't there the crime was more than the minimum is this is there any state long reason why the state court was was bound by the governor's reasons why that's what the state cases say scott and so forth that the court has to accept the reasons given by the by the by the decision maker if you can't make up other reasons that may or may not be in the record because for one reason or another the decision maker may have found that those weren't particularly procreative or credible why do you think the government constitutes some evidence that twenty two years later he still presents a risk when when all of the information is that that crime has become like an historical relic in mr bo case because of the change the reform in the rehabilitation he has shown over the course of twenty two years since you have every psychiatric psychological evaluation for the last ten years looking at that crime looking at mr concluding that he presents a minimal risk a low risk in fact the most recent one for the two thousand and four hearing was that he presents a risk that substantially lower then the man on the street grant of parole by the board that the governor reversed that's the one that's at issue in this right now and then there's a subsequent grant of parole and denial deadlock just like happened in two thousand and one we're now it's going to have to go to the board on bond for a new decision and it's all going back to you know the pre commitment factors he said his behavior continues to be sterling he continues to get all that all the positive s here's your knowledge got a statistical study on the number of men and women convicted of first degree murder or second degree murder will that have been paroled yes your honor and we actually have submitted that to the whole most recently you know because we don't have a statistically significant number but historically there has been and you can see that in just how many people are actually paroled under these circumstances and those statistics are standing is that in california there was a lawsuit about the fact that nobody's ever problem is not the problem there almost every problem that's the fundamental arbitrariness at issue here and three or four cases where the individual brought a gun to the scene as in this case and found that that wasn't sufficient to find that the prisoner at this point and the arbitrariness here but if i mean you can have a aggravated second degree murder that has some suggestion of a first degree murder but doesn't a first degree murder or whatever so i don't see anything wrong personally in going through the facts of the crime when you are assessing the risk that the person is going to present but what's wrong about it in this case is to and the court clearly said that it's a two step process you have no expectation of a anything that term until you're found suitable until the proles already finds that you will not pose a risk proles already go on to say what should the term be consistent with other second degree or first degree murders so under state law until you're found suitable you have no interest in any specific term and all i wanted to go back and talk about the kind of cause that i know there have there has been litigation in a case called coleman as far as whether the previous administration not what the court would agree with but the question is whether there's any evidence and the record to support the governor's decision and here the state courts looked at and said yes there's a commitment offense we think that's some evidence and this that decision cannot be set aside merely because the courts disagree with the weight to be given that  likely to commit future crimes than average members that there's no evidence in the record because that issue wasn't raised in this petition before but i think the supreme court in green holds make clear that you don't have to the proles authority because of the nature of her parole authorities it's projective odd subjective forward looking not adversarial those things mean that the  minutes but it also goes to his question about what do we know about what what happened to poor murderers who are paroled because the answer might be we don't know and that's why it is so hard to specify what evidence must be in the record the governor is faster with the authority to make these final parole suitability term determinations and he is entitled to be very cautious if you choose to be seen to to do so