six i am his th lawyer he has been through five courts including this one and he still has not had any court review his conviction on direct appeal it is pretty simple to me it's not his fault it's the fact of his lawyer have to redress the lapse of supreme and then again the period from two thousand and ten when the four hundred and forty was decided to two thousand and twelve when mr byrne back made a motion to enlarge the time to perfect the direct appeal which ultimately york and i think the key is that five year period that the courts have said with the exception of judge rivera who i think was brilliant in this case  every on the court has said those five years are attributable to miss the pres he should have done something you should have asked to have counsel signed he should have called mr cartagena frankly we don't know what happened in that five year period but i don't think it's unreasonable to assume that mr parenthesise assumed that cartagena was working on the appeal once  i think pres had every right to assume that he would now resurrect the case for you and do it for that or is there something in the record from which well the court judge that can i guess gaze could have looked at it and said ok we under i understand that and i'm either going to credit or not credit unfortunately judge well i don't don't see anything in the record that backs it up but a car not a problem it is ok but i don't think it's insurmountable karna jenner in two thousand and eight files before forty i think it's reasonable to assume that that did not spring from whole cloth that he had been doing something prior to the filing of that for forty to get to the point where he actually did file that motion i think it was the wrong motion and i think everybody else agrees with that but he did something at that point and it's unreasonable to was to attribute to  perez the fact that cartagena filed the wrong vehicle because per as is an educated in the law has no way of knowing what's the right way to do this all he knows is i'm here i've been convicted i want somebody to look at this because there was an error in my trial and i'm relying on a guy who paid thirty thousand dollars to do that in years lapse after the conviction to the to the time i guess you were hired is that correct i'm the st i'm appointed report ok but you got it but anyway now there were six years before the lawyer was disciplined for not doing anything and then after the way was disciplined there was another another five years and then after collateral proceeding complete was completed it was another two years and so there was no action during that period of time and you know it i mean that's that's sort of a difficult it seems to me a bit of an appellate proceedings such as they were lead up to today so he's been in jail for twenty five years of what is potentially a life sentence and no court has looked at that trial record and said there's error or there's not error and and frankly i haven't looked at it either because that wasn't the point of my representation on the appeal of the hague so i don't know whether there was error in the trial or whether there's viable issues there but i think he deserves a chance to get that new york state guarantees him one direct appeal he's been deprived of that primarily by the ineffective assistance of his appellate counsel both of them i recognize  that mr slots can argue that mr byrne backs ineffectiveness can't be raised here because it wasn't raised below but i still think it's indicative of the problem that mr president as and we can't lose sight of the fact that there's a man sitting in a jail cell because his lawyers have screwed up the case to be perfectly blunt all of this has some arguable merit or penetrating your argument but but tell us how exactly we're going to get there with what's what is the vehicle or the portal through which we have to go to grant the relief you're asking for is well let's begin with that what is the relief you're  appeal i think at this point and what what went through with the judge that can do to begin with the not given the hearing i don't there was a hearing before judge moses which than judge can then adopted her  recommendation but i don't think there was a sufficient factual finding there this is a what's missing here is is what a parental do in that period of time and that's what this comes down to that's what all of the prior courts before today have said that parisite on his hands in effect and i think that the record needs to be expanded for somebody to get an affidavit from paris to say this is what i did this is how i contacted the lawyer this is what i demanded that he do and he did nothing and without that record i understand that this court and other courts have said you know there's nothing there you have nothing to base it on we don't have anything in the record but i think we need that  so we're back in this you court by some means or another and we'll come back to that in a nd what is the direct within the create a language of this court what do we require th before him to whom you referred earlier were where is he and how did he how did his representation lapse mr byrne back was retained by the family in some manner he handled in the in state court of relieved this court granted that and appointed me from the c j panel since i'm on the southern district panel as well i assume that that representation could continue or judge can could report me however that would work and i think that what has to happen then is somebody me if i'm the counsel goes and gets a factual affidavit from mr perez to expand the record to go back to judge i can and say here's what really happened those five years and not attributable to me i thought my aware was working on this case and i think that's what really happened and that you know in your view before judge ed can you or mr grant is would be able to make the argument that the decision of the new york court of appeals was contrary to or involved and in reason the application of clearly if that was federal law i think beyond reasonable application  is that they've attributed as judge at can did as well the time to mr president should more properly have been attributed to the ineffective assistance of his lawyers not to him the courts  blow have said he didn't do anything he should have we're not going to give him you know on limited opportunities to go forward here he's got to take some affirmative action and how do we analyze that what standard do we apply to that germination of the state i think it's an unreasonable application of fact that's the nd prong the i know on he views that it was based on an unreasonable determination of the facts  the record is unclear on and so are the i think the records devoid of any anything on that i i can tell you that i've spoken to his mother but i that's you know i've spoken to him but that's all i can tell you have spoken to him i have spoken to him you know i believe he's got either a ged or a high school diploma nothing beyond that as far as i know and he's been in prison for the last twenty five good morning in may please the court my name is david slotting from the bronx county district attorney's office now here on behalf of the respondent superintendent william lee at some point duty years of an action a defendant must forfeit his right to appeal a criminal conviction and this is in fairness to the victims their families the trial witnesses and our faired ministration of justice and for these reasons new york state has instituted reasonable filing requirements for an individual to timely perfect his appeal here in this case the new york state court of appeals made factual findings based on the minimal evidence presented before it and they held that the petitioner was not entitled to perfect his appeal sixteen years after his conviction when nine of those years elapsed after he had actual notice that his attorney was neglecting his direct appeal and then when he offered no reasonable excuse for that nine year delay the district court as i mention in my brief entertain the objection that it was only a seven year delay attributed to mr  nothing preventing an individual from prison or already taking appeal from pursuing the direct appeal as well as that collateral proceeding at the same time so the question before this court is whether the state court's decision new york state court of appeals under time to enlarge the time to perfect the appeal but that i don't know how would he have known that if we know from the record i'm assuming everything you say he's absolutely correct but how would he have known that his time was up or that he had a certain amount of  time remembers trying to imagine someone whose position in prison and we were assuming i think that his representation was in some sense ineffective and rooted in the blame has been put on him personally for not meeting some  requirement of law the requirement itself is probably quite reasonable but how would he have known about any of this and i think the issue could be framed a little bit different and i agree with you an individual in prison why would he know of this specific one hundred and twenty day rule but the state court decision didn't fault him for not knowing that and they didn't fault him for having an ineffective counsel for that period and ninety seven to two thousand and three it's after that point when he does have actual notice not that a particular date time has passed but that it's been it's been six years now i've been alerted focused on correct the only effort in fact that he took for his direct appeal those four things he filed his nose of peel in ninety six retained card again or in ninety seven he went to the disciplinary committee in two thousand and one it appears that his family initiated this proceeding and then there was really an eleven year gap from when from two thousand and one to two thousand and twelve when he moves to enlarge the time to perfect the appeal however the court of appeals and the magistrate in district court said that he was it was really the nine years that they were concentrating on when he gets confirmation from the disciplinary committee that yes your attorney is neglecting your people and then he does nothing there after to you know what they were whether it was more than one witness and all of that there was at this trial there was twenty two dollars witnesses in total i believe maybe five or six of them were on behalf of the defendant it was a street fight  fistfight in which the defendant was convicted for bringing a gun to that fight and shooting it at the the rivals that that were there he shot one person in the back three times and another individual was shot once or twice with the result there was two victims homicide victims one of his it was that there was multiple eye witnesses including a cooperating witness one of his  neither did the said and because of that because there are no u s supreme court cases that are materially indistinguishable on the facts we believe that the state court opinion cannot be contrary to nor  unreasonably apply clearly established federal law just oil and clear on what you're saying that the state's position is that the new york court of appeals based its decision on state law that is our position yes  what about the possibility that it was based on the season of the new york court would be used in a reasonable determination of the facts yes with respect to to that issue  evidence and there is none of that here the facts are largely not in dispute by the parties in the court of appeals made a number of factual findings and what are the facts that we're concerned we're not concerned about in this respect with the facts of the offense right when i that's correct and who who shot home where the facts in question are what happened in this period with respect to his appeal rights that's correct so with respect to that and that was the issue i would just i agree with mr slott that the the factual largely undisputed except that he keeps referring to the nine year delay and there was a reference to the twelve year delay from i because after he files before forty it takes two years for that to get adjudicated for whatever reason and during that time obviously something is happening in connection with mr p attempt to have his conviction reviewed by the fact the court in general are already proceeding i'm sorry when you said that you're referring to the four hundred and forty proceeding that's that's something that's have yes that's the only thing that's happening on  think that's the wrong vehicle i think they should have been in motion to enlarge the time and to you're saying that the real count against him i think it's clearly should not be counted against him in judge econd did not count that against him he counted seven years the five years certainly in the beginning of it after the admonition of pena's has the absolute right to assume that cartagena is now doing something so how long does that take until he knows that nothing's happening and he has to ask the appellate division to appoint counsel or he has to retain new counsel and remember that his mother spent virtually her life savings here she gave cartagena thirty thousand dollars and he didn't do anything and so that has to kind of be subtracted from that five year period just on logic and then prior to the file when you're looking at one of the dancers out of curiosity afterward you just said remind me again what was the outcome of the disciplinary proceedings it was it was an admonition in a jail sentence with essentially a life sentence and you had other things to do and your honor on business like a thirty thousand dollars i he never gave that back he collected the thirty thousand dollars and knew anything with it and so i think that when the after the admonition then there's a period of time when pet is assumes that things are happening it doesn't know what and and but he knows that appeals take a long time because everybody in prison knows that and then prior to the two thousand and eight filing of the four  he had to be preparing the four hundred and forty dollars so maybe it's three years maybe it's two and a half maybe it's four somewhere in between there but there is something happening there on behalf of paris and then after the full forty decided there are two years until they say ok we got to get another lawyer we got to try to do something so i'll give you those two years and i'll give you two years of the five but there's no bright line when we draw the line and say a man doing life and life in i think it's been discussed years are insufficient facts which i think he has to expand the record get more facts in the form of affidavits from patas from anybody else who actually knows maybe a right because you didn't do anything or we see that it's really not your fault we're going to let you have a direct appeal that's ultimately what i'd like to see happen but i don't think that can happen from here thanks very much mr wise thank you reserve the situation and