deny parole to a california state like prisoner the two issues that are actually settled by the circuit as much as the attorney general may disagree with them are that there is a liberty really has to support it or not and i want to address that for a few minutes but preliminarily i'd like to note that there have been four published cases on california life for parole from the circuit mcquillan well quote and a little different because it was rescission  just like the cases on calendar today and in those cases this court is clearly held that some evidence has to court the decision made and so it really would take a non bank court to decide otherwise at this point even california life for parole cases the decision must be supported by substantial by any evidence well is there is there a case saying that a parole decision anywhere my speech supported by freedom from a wholly arbitrary deprivation of liberty a decision with no evidence to support it is in fact a wholly arbitrary deprivation of liberty and i supreme court has said that in many contexts the parole contact the court is used to looking at as you mentioned judge can be looking at sufficiency arguments all the time that come from the state usually guilty and decides whether there's enough evidence there to support that doesn't really weigh the evidence because we have jackson's emerge in you know that tells us we're supposed to do that and we don't really have jackson in the parole context to you don't have a jackson directly in the pro context but you janet jackson was nothing more than an application of several due process law by the supreme court  green holds there were multiple grounds for the last parole board to do that including that his release would depreciate the seriousness of this crime or promote this respect for the law it would have a substantially adverse effect on institutional discipline and many other things so what the supreme court was dealing with there wasn't whether evidence supported anything it was dealing with procedural due process that right right what we're dealing with when we talk about evidence must support the due process right the substance its right to be free from a wholly arbitrary decision so now if if we get over that hurdle and then we talk about the evidence if we use big and iron standard how did your client come out under that standard in terms of the nature and circumstances of his own and hence i would suggest to the court  seven years who in spite clearly there's no evidence to support a public that he's a threat to public safety and so there can be worth there could be a prisoner who committed a very aggravated offense but in the ensuing is absolutely in recovery plans to continue recovery and everybody including the board believed it was genuine and sincere he don't longer has a risk factor at all let me ask and i don't really care about mr sas except to the extent i care you know personally about him and his case but he's not here and mr rodriguez is the one factor in addition of the crime of commitment that's mentioned and referenced in here has to do with he didn't he doesn't have any documented plans and although he talks about it to his counselors the parole board said you know there's no letters of support there's no he did not present was a letter from his sister saying yeah i agree he can come live with me but the couldn't understand that not only do the regulations not require that they don't actually require residence at all a viable parole plan there's no requirement that he have documentation and the fact that he doesn't have documentation doesn't make him a current threat that's the kind of analysis of this so critical for this court to do usually again on behalf of the respondent and i don't want to be labor points that were made in the first argument and i understand the court is aware of them because they're in the briefs as well but there are a few points that are important to reiterate in response to your question your honor how how would mr rodriguez come out under stassen irons the words position is even under those cases which are not clearly established federal law he would lose this was his third subsequent hearing his crime involved elements far especially heinous because he was shot while sitting in a car in no position to defend himself were i mean you murder people some way or other and the fact that he's sitting down instead of standing on a sidewalk or something it just makes no sense to me at all respectfully your honor that's one of the reasons we're here in tal afar in this case we're defending a district court decision that was appropriate because questions like those are for the  board reviewed by the governor and then reviewed by the state court and unless the state court finds an unreasonable application of the oil established supreme court law that ends the inquiry in the federal courts and in defense of the question of whether it was more egregious because he's in a car unlike mr bradford mr tall over his victim mr rodriguez his victim was stuck in a car where he couldn't run away and was shot after being brought by an ambush i think the warden reinforcing most was done which says if there if the priem court has not yet spoken on the specific issue and it is improper to import a task from another context and that would be controlling and intervening that was not considered in irons which was briefed from long before most water came out and landrigan has made it even more clear if it wasn't clear before for most logon that federal courts should not go where the supreme court has an art not already paved the way and my correctly understand because we have several cases here and they it's easy to confuse them i understand that completely on reviewing  seems to me it's sad that i didn't agree with the parole board that there was some evidence to support it yes your honor it did it applied the some evidence test because california has indeed imported that test under the california constitution that's not to say it necessarily applies here in the federal contests and the the court upheld the decision because the psychological evaluations were in part conflicting and one of the reasons that was important and it ties in as well to the parole plans is because of the problems with substance abuse with a lack of parole plans for substance abuse certainly that somebody who's going to present a higher risk of danger than someone that doesn't have a substance abuse problem  and that that added an associated risk so given the commitment offense the lack of parole plans and the substance abuse problems we don't have a big problem even if they were clearly established because it's not just past problems it's a current problem with only goes to suitability the plus side not the negative side when you comment on that i will your honor recognizing of course that it's a matter of state law state law cases have found that first of all the guidelines are specific they are only guidelines they're not exclusive the board the governor are bound to consider all relevant reliable evidence someone who has adequate parole plans in place substantiated obviously present a much lower risk than someone who merely says i think i'll go live with a family member and i'll deal with setting up substance abuse after the fact we have a state case on us so that recognized when there is an absence of a suitability factor such as parole plans that is relevant to the determination but again that puts this court in the position of evaluating the inmate suitability and what this court should be doing is evaluating the state court decision raising his claims i'm interested in your comment that there's some evidence that regularly applied by the california courts may not necessarily be the same some evidence test that comes from hell or it was there any connection when the california courts first adopted that that they were california supreme court relied on state law and then basically tried to say we think we're on the right path because this is like what the federal courts have done in hill in the disciplinary cont a rescission case and so arguably a little different then and original parole case so the state which is allowed to have a higher level of protection but not a lower one can decide to parallel to the federal grant yes your honor that's true and this court is again as i believe i said in the last case now i'm getting confused as the court was the some evidence test was plied by this court i believe it was second finding that because the disciplinary case would keep an inmate in prison longer and a parole decision would as well that was a proper stretch but the supreme court hasn't said that and and the warden maintains that green holds shows that that isn't a proper test because because the questions are so different adversarial not adversarial retrospective prospect of objective subjective the test doesn't cross those lines and isn't required under federal law especially whereas here green holds makes clear what we have is a very minimal liberty interest it's only a hope these prisoners aren't sentenced to life with the guarantee that they will be paroled at some point their crimes are such that contemplates they could spend the rest of their life in prison if the court followed down the path that the inmates are arguing in these cases and said that after time the crime is no longer relevant if the inmate is good in prison we could have the most heinous for greed just crime imaginable a manson case but if mr manson goes to classes and has par state can't rely on the crime and in this case they didn't rely on the crime excessively what the court has questions we to make this