pennsylvania superior court including the parks decision which is really factually indistinguishable from this case and a recent decision even from the pennsylvania supreme court in a case called commonwealth vs heads all of which sta essentially the opposite of what the pennsylvania superior court did here that is that p c r a petitioners can raise their claims in response to a rule nine zero seven notice just like mr lincoln did in this case and have those claims  icated on the merits without an independent and adequate state law ground there can be no procedural default i know the government in its brief really its principal argument in response to our contention with respect to the inadequacy of the state procedural rule as an argument of waiver they've claimed that mr lincoln centrally conceded adequacy in the district court we were spotted that way of argument in our reply brief held many times most recently last term in a case called congresses about i think where you see deference of honor and is to the presumption of factual correctness to state courts determinations of respect to the facts but  the state courts never got to that point because under this procedural bar a concluded that mr lincoln's claim was procedurally to fault one look at what he said in his right i mean it as far as i can tell and dirksen is unclear it's a pretty short opinion as it's not too helpful but i think what the person said in his response is sort of to explain the government interference exception  to the statue of limitations and we distinguished erikson are our brief as is dealing with sort of exceptions to the statue of limitations on the statue requiring a petitioner to set forth the exception this court can't even look at their accent because it was issued in two thousand and seven and the time of the purported procedure of the fall in this case was in two thousand and five and this court has held that when assessing the adequacy of the state procedural rule  think and most recently in a case called albrecht vs horn you look to how pennsylvania or how the state courts applied decisions at the time of the purported proceed with the fall which would have been in two thousand and five so you can't even look as opposed to is missing the claim well i think the comment to rule nine zero five zero it's clear that defective petitions are ones that lack particularity or are inadequate for any reason it's a very broad definition of defect in this and the way the argument goes is that mr lincoln's original p c r a petition he alleged the claim of general ineffective assistance of counsel if you set one of his claims was my counsel and his in the family no merit letter highlighted that deficiency for the p c r a court by saying mr lincoln has not even seen fit to describe this sort of ineffective assistance of counsel then mr lincoln did now the government argues essentially saying about this default so what that that the only thing he could claim ashley was voluntarily think we allude to one claim in a reply brief and that is that the facts to which he stipulated during his guilty plea did not amount to the offense of attempted murder because he never stipulated to any facts that would give rise to a specific intent to kill but i think that the stronger argument is and it's and the government concedes in its brief that we can make this argument on to reinstate a direct appeal and that is that his sentence was illegal or pled guilty sure and so you're saying it's not you're not challenging the guilty plea i thought the whole point that he tried to make was that the guilty plea while i don't know if this necessarily is a constitutional issue i mean that you are raising a state law i don't see it as constantly either but as if you're saying it was something that he could raise but that he has preserved and place and he would have to do that in this post it conviction or post and i don't think he would have had to preserve because i think this is an issue that he would raise on a reinstated direct appeal which he never had the opportunity to have why hasn't he waive well there are no there are enough to raise i just i guess i don't understand how he could raise the legality of his sentence as a matter of state law through p c r a or habeas proceedings if it doesn't g and if i could just explain you know i haven't done exhaustive search of all the appellate grounds and mr lincoln could pursue on a reinstated direct appeal i mean as i don't think this court needs to go that far to reinstate his direct appeal under the reasoning of florists ortega but if i had the opportunity to brief a direct appeal from mr lincoln i would argue that his sentence was illegal namely because the sentencing judge took into account and irani as consideration aggravated assault and attempted murder are separate offenses that carry separate consecutive sentences the trial court or the sentencing judge said as much on the record and told mr lincoln look you're looking at eighty five years in prison that was wrong he was not looking at eighty five years in prison aggravated assault and attempted murder merge for sentencing purposes so what he was looking at was forty years in prison  yeah he ended up getting forty years in prisons so what incentive would it have been for mr lincoln to have pled guilty to accept the maximum amount of sentence possible had the trial court knowing the correct had he known that aggravated assault attempted murder murder and and had taken that into account the argument would go that he would have sentenced mr lincoln to the absolute maximum again this is something that you know i don't know if this will succeed before the think that we don't even consider prejudice as part of this i read it i read forrester take it as dealing with a spectrum of circumstances and at our side of the spectrum where mr lincoln stands where it petitioner instructs his counsel to pursue an appeal and his counsel does not abide by those instructions prejudice is presumed that's one end of the spectrum at the other end of the spectrum is where there is no express instruction and force or take a sort of dealt with this is their duty to consult with your client with respect to his appellate rights there i think prejudice is largely presumed but the court noted that there that it's going to be very fact specific under those circumstances you take into account a number of things but where we are which is actually where the supreme court was in a case called rodriguez from one thousand nine hundred sixty nine prejudice is presumed  know no state court has reached that determination and you are saying that we should find that based on what is before us i mean it obviously if he didn't ask the lawyer to appeal then there's nothing here right and all you have really on that point is mr lincoln's statements and the record you know his response to the rule not a seven notice this is an district attorney john goldsboro from the philadelphia district attorney's office and i represent the commonwealth of police and federal he was responsible though on december first two thousand and two we can be sure all rivers almost to death blinded her and when i left her for dead in a pool of her own blood with severe brain damage she had three brain operations it was a higher level horrible crime and every state and federal court to touch this case agrees that his plea is valid including th can actually see that there are times when they go back to to renegotiate he got a better deal than he came in with he started out with twenty to forty ended up with sixteen to forty and that the charges of of possession of innocent of crime and were also dropped the certification of that second claim the validity of the plea was denied by this court nobody in his right mind would have gone to trial on these facts given the evidence that he knew we had  we not only had two witnesses identifying him placing him at the scene aside from the victim we also had the victim naming him picking him out of a photograph and we had blood on the radio that show that he used this as an instrument of crime that's part of the recitation of the facts it caused him to go back and see why i didn't say that in my confession which is in fact the other piece of evidence that makes it i want to talk about the i called the p r c a p c r a singer about two things on that he says you could raise the issue of the legality of the sentence can we look at pennsylvania law and the sentence he i can and yes it's more or less like that except that it derives from pennsylvania versus philly it's one step removed of course from the direct appeal procedure this is collateral appeal so it's counsel saying i have evaluated all the claims on collateral appeal and i are on collateral review and i cannot find any of merit and here is why and then requesting to withdraw it's it's more or less similar but it's it's a little bit of reviewed but the court nonetheless does have to take a look at it and did in this instance that the letter is particularly says in the letter of this entire piece or a petition is vague and specific and you know needs to be fleshed out and i don't know what he's talking about that's not so it's one claim he says is not not specific in the initial petition  petitioner checks off a boxing i didn't have an appeal his other claims are ineffective assistance claims so he's not bringing in the petition a claim that counsel was ineffective for failing to file an appeal but what about you know what he so he raises that in his response letter to this notice which is require to be sent out the purpose of the notice is to allow correctable defects to be addressed or as a safety comprehensibly and instead take the other route and follow them in a petition on my behalf saying yes there are claims that are arguably meritorious and he says i want it counts i want to council at the guilty plea to withdraw my it was a i don't think he was actually asking the court specifically i'd like to include another claim in my petition i think he was saying i want counsel to file an amended petition on my behalf and there's a whole univers doing well there are general rules of pleading in pennsylvania and one of them is not set forth in nine o five or nine o seven it's broader than that it's in the case law and it's it's broader than just because you're a practice claims have to be in petitions it wasn't in his petition now that this procedure of giving notice is simply a safety valve for  sometimes the court's under nine zero five nine zero seven this is a separate area of procedure have the discretion to allow amendments ott in  whatever form they may be especially in pro se cases and that is exactly the same practice that this court follows the and the district where the federal district court follows but that doesn't mean that there is a right to file an amended petition and here i'm i'm just speculating but here certainly the court received it and read it there's no right to have it acknowledged but it's on the docket and certainly the court to the extent it's decision can be discern it denied any request to force counsel to withdraw the finley letter and fallen on the petition it denied any request to construe this letter as a motion to amend and it was within its discretion to do so it doesn't have to give a reason because the claim was not in the petition i think there's a real danger here if if were we're talking about the clearing a state will a procedure inadequate that first there's the affront to the victim to the state to that notice of intent procedure would become an endless loop an opportunity for you know petitioners to add in new claims every time the court has to send out a notice certainly the consequences of would be as the can record speculate at the united states supreme court and can work that the state would get and florrie's ortigas seems to say that when the alleged defect is failure to appeal prejudice is presume now can you show counsel to file an appeal lately he didn't of course begin alleging that until his response letter to the notice of notice but i did actually go back and as i submitted  heard from the defendant by the thirtieth day which i always mark on my calendar i follow protective notice of appeal and then sometimes i'll hear a few days later from the defendant saying no i don't wish an appeal now here there would have been very good reasons not to take an appeal it's risky he got a very good deal here sixteen to forty nine as i said other charges were dropped he managed to even negotiate out  should just say that the taking of the appeal and then with rule of the appeal a week later that mr lake and got some communication i ordered the notes of testimony from the date on which this was dismissed noticing that that had not been done and to see if there was any statement about that but your honor i would like to just simply touch on a couple of points here if date on which the p c r a petition was dismissed formally on the record sometimes the p c or a judge makes a brief statement on the record and doesn't just do it on paper so that's possible you know even though as you seem to say that you can raise which i find kind of an ironic aspect of this because that's what's being alleged but it's coming in through the inadequacy argument which i personally find kind of unusual i think this is all in use yes and different correct but i see them would have been pursued on the record but usually only through a claim the council was ineffective for failing to pursue those claims but nonetheless the underlying claim is the claim that would have been raised on direct appeal the i think the other aspect of  this and i see recall judge nygaard was was question my point about this is simply the the bottom line but there really is no point to any factual development here because there really is only one claim that could have been pursued on her part of that you just said and even though there is absolutely nothing that can be raised directly you think it's granted and then there's a very short proceeding somewhere and then it all goes away because of the supreme court decision that the court courts don't look behind what you're going to do after you find that there is an issue as to whether the person asked for it if you want to stand that question answer i'm somebody depriving is the right to direct well that's that's mike can we look at these things he was going to happen i believe i believe so as a matter of practicality your honor as a matter of conservation of judicial resources in this time of tight budget if he didn't and counsel to appeal right and we know where so the whole thing depends on whether you can read later and one can't assume that he just said oh i found the notice we are now maybe up to get away you have to assume that there was some communication with his client before he did that right what's wrong with that assumption and if he's right then we don't have to say why i think there needs to be some kind of  discovery or fleshing out of these facts because you know if if if mr lake and mr lincoln's counsel has simply filed this press a p for a discontinuance without consulting with mr lincoln i think you have an day he decided not to file the darkening statement because he thought mr lincoln didn't have a shot at any of these issues on a direct appeal to mr lincoln wanted him to pursue a direct appeal because he thought he got railroaded that could have been that's a plausible explanation for the states well you know you asked about pursuing this appeal but guess what you really badly injured this woman and almost a suggested that he wasn't going to represent him on a direct appeal and these are fact issues that i think are constitutional matter as a matter supreme court precedent that this court can't do that that prejudice is presumed under these circumstances but if you do look on that and this goes to judge nygard earlier question the legality of a sentence if you know i don't have a case at hand be happy to supplement with the twenty a j letter the legality of a sentence under pennsylvania law is an issue that cannot be waived it cannot be waived it's something that