that's the whole subsection is quoted in his detention they are there's also things that are somewhat objective in the criteria for example multiple victims that yes no obviously they were but for example if i were to take your argument that i can just simply transpose from the capital cases of the sort of the narrowing of those who are death eligible new process argument coming out of the income management and see the same vagueness standard is applied in most cases and is applied the in crawl cases which may or may not be true but assuming that south i don't with the cases that were i mean it may be as applied in the sense that we may get some sense from the way those are apart over the course of several cases what those terms mean i would agree that my other reaction to it is to point out that that again who did not get an opportunity because the way that the district court judge misinterpreted his reply to the objections on the first climb to really brief the awful occasions of the various cases you're talking about  the application of death penalty aggravating circumstances whether it's from arizona with this right or whatever their other states are is not a simple thing and some very straightforward to apply in the context of how the california board of prison terms criteria that at least from my experience looks like it's involved as a matter of roe so there is at least an aspect of this that it is that there's a substantive due process violation because this is something that's being applied just like the commitment offense or the unchanging core or in addition to that are you staying even if it does somehow arguably narrow the three categories generalized categories the broad terms of the narrowed by state supreme court decisions that can few or the vagueness of the of the terminology so it could be narrowed by state court decisions are you saying then there's still an question whether it's capital or not the point is that as apply as we'll look to the circumstances of the case with the supreme court jurisprudence as i understand it is in a capital case where this also the that the broad terminology escapes the vagueness challenge if it has been narrowed right by a state supreme court so let's just take that scenario so applied is even if it's been narrowed down so it's not officially very big you're still entitled to litigate as to whether the parole board applied to the narrowed version properly where what kind of sense and someone should actually be happy to be given so that is by itself that objective fact is not something that automatically excludes him forever from being found suitable and having full dates the second criteria that was carried dispassionate calculated manner execution style murder we don't have any real facts about what he has involvement was vs what the other defendants and other people involved in we have allusions to what the board understood his involvement was which was truly nasty but again this is where we didn't get an answer on the substance of it mr winston get it didn't get in an opportunity in response he didn't talk about his commitment offense before the board but among the  any record i can look at relating to exhaustion is there any process in the state of california courts where the exhausted is not what i'd like there's no evidence in the record in this case one who has excerpts or in the entire who has the burden of proof to prove exhaustion doesn't rule five provided that the answer should respond to the allegations of the petition in addition it shows state where the petitioners exhausted its state remedies own at disputing it look congress wanted to limit the cases coming from the state courts to the federal courts and they laid down some expressed conditions time limits procedural limits and here's a limit and nobody's talking about and i'm just asking if the petitioner is the one that carries the burden to prove the facts alleged i find nothing in the record i'm suspicious of it i've tried to find it and i can't that's answer you know enough about this case to say they're out there i don't know one way or another if we could i get the state's position in your group you didn't talk about context of prison terms of parole so the schedule i just laid out and i tried to find statutes of california or rules of the commission that made all of that required under state law that portion has changed recently because as effective may first of this year the cows the board has in terms of being of its internal appeal process so there is no longer any administrative appeal of a parole setting or any other parole related decision what happens now they can go straight to the superior court or the there is one page that will be submitted on the brief and that is durban vs national known investors that is now submitted on the briefs in the final case for argument today is johnson versus no