enhanced by virtue of his having been convicted in one thousand nine hundred three and it's that conviction that were challenging directly because in that case he did not have his guaranteed right to appeal from his conviction let's assume that we agree with you that his constitutional right to counsel on appeal was violated what relief would he be entitled to well he in syria of course he could be entitled to be released but we're requesting because we think this is the right way to manage it the restoration of his appeal rights his full peal rights he he did have another  aunts the new york courts when there became aware that he didn't have his to appeal the first time gave him the opportunity to appeal but then declared that he'd abandoned his right so we would want him restored so that he could actually exercise his app right and if he if that appeal is restored and the appellate division and ultimately the new york court of appeals affirm his conviction would anything change with respect to his two thousand  sentence if if they affirmed and the conviction remained the same it would presumably not change i don't believe on the other hand if it was the case that he prevailed then the question of what the sentence should be  enhanced would be presented and to whom would that be presented in the first instance back to the new york courts i would assume so because that's the sentencing authority and that that would be what we would expect and based on what happened in the trial court the way his counsel was replaced and then he lost counsel we would we would think he had a very good chance on appeal so to clarify we are not being an ass either to reduce his current sentence or to vacate his one nine hundred ninety three conviction we are being asked in this appeal on leap to reinstate his appeal which would me deciding that the new york words erred in dismissing that appeal that's correct your honor and there's no there's no debate about whether he had a right to an appeal and there's no debate about whether he had a right to counsel so end substance should be putting him back so that his rights could be exercised however then that would that would turn out in our view of the situation is that the principle flaw here in the new york state court system in the first department is that they do not provide adequate notice to the individual defendant after the individual is convicted and that that notice  question which i do want to hear maybe you could talk to us about lackawanna and how we are able to hear this case here your first of all again where we're here because the sentence in two thousand and four was enhanced by the sentence sentance the question in lackawanna was well under what circumstances would there be an appropriate challenge recognizing that there was a reason to not allow challenges to all such in all play here where there was counsel well as far as we're concerned the question is will the court allow another exception as have now or believe it's nine courts following lackawanna reason a that an exception needs to be limited but the most prevalent view is that if you lost your right in this case in nine hundred ninety three through no fault of your own then you should be able to be put back just to be clear so you're not asserting that the gideon exception is the political here you're relying on us recognizing that the second exception actually that's right now the second exception can be justified has no fault of his own but of course since the exception we're talking about is he didn't have counsel and therefore he didn't have an appeal well that's not the sixth amendment that's the fourteenth amendment it's a different literally a different right to counsel we believe it presents exactly the same kind of problem that the person is left without counsel to presume he's pursue his rights and therefore he has been unfairly de deprived and that's a fair challenge the post suppose i agreed with you that if this were a case that came to us within the federal system that you would be correct to that that is the best interpretation of lackawanna how do we able to create a new exception or extend an extension of the supreme court has recognized or even apply a general standard that the supreme court has stated with respect to an exception in a heaviest case because the court left open the question of what exceptions would be allowed it does argue that you can just decide now on your own but if object of course the supreme court review i suppose that this is a valid exception and may i say the ninth and tenth circuits plus a number of district courts have done that very thing they've they've not said the court has just been court has bound us to  rather the court has allowed for exceptions and it's perfectly appropriate for if the supreme court has not bound us to do it how can we say that it bounds the new york court of appeals to do it what the new york court appeals that was an unreasonable interpretation of the supreme court was this is not an issue that the state court had ruled on or would rule on this is a federal issue a federal hate b s really and so there is no such problem with respect to the state court as there it's it's apparent that he didn't know that he lost his appellate rights and let's say we go back to one thousand nine hundred four and one thousand nine hundred five he doesn't know now he doesn't it isn't any less true that he doesn't know waiter and he continues to not know anything until two thousand and four when he begins to get some idea there might be a problem and then what he does is he seeks help he starts writing and it's only when he gets to the the help in two thousand and twelve that it is discovered he lost his appellate rights so first of all the excuse the reason he didn't pursue his a rights didn't change on rollers years and rather than abandoning his appeal he exercised diligence to try to pursue what he could and as soon as he found out what the problem was with the help of counsel he acted to to have his rights redress thank you procedures for assigning a public house so may not be reviewed by this court because the new york courts relied an independent and adequate state ground for dismissing his appeal which is the fact that he willfully delayed for nineteen years without a valid excuse specifically the state courts made a factual finding that petitioner made a conscious decision not to pursue ms nine hundred ninety three conviction because he was satisfied with his plea bargain at the time the state courts made a further factual finding deposition or waited nineteen years to act on his appeal and only changed his mind later because in the interim he had been convicted of a new crime which resulted in being in him receiving a sense of sixteen years to life as a persistent  offender and that is why suddenly the nine hundred ninety three appeal became of interest to him those factual findings by the state court must be presumed correct pursuant to twenty eight u s c twenty two fifty four in one unless rebutted by clear relevant facts which supported the state court finding the record the procedure that was employed in this case about notifying the defendant of his right to appeal and how to pursue that's been modified since  sweets decision yes your honor there has been a recent law and acted by the legislature which allows now a sentencing judge upon the request of the defendant to grant poor persons relief petitioner received his notice of his appellate rights at his nine hundred ninety three cents in proceeding he expressed no interest in perfecting that appeal for nineteen years until two thousand and twelve in the interim in two thousand and two thousand and four after he was convicted of separate crimes he can see that his predicate felony felony offender status even though he had the right under state law at those proceedings to challenge the constitutionality of his nine hundred ninety three conviction and the states recognize a broad right to challenge the constitutionality of a prior conviction so he certainly could have gone to the state court and said i was denied in the people in one thousand nine hundred ninety three case he never mentioned anything about an appeal during those proceedings in two thousand and two thousand and four and this was an act of litigant this was not somebody who would sit on an issue and not bring it to the court's attention he was an active participant in this nine hundred ninety three plea incensing proceedings during his appeal from his two thousand and four conviction he the petitioners position here is that he just believed that that remain pending and it is not unheard of for appeals in the new york system to remain pending for many many years without being resolved your honor his attorney did file a notice of appeal that is is correct on his behalf which attorneys routinely do in the new york state system because if they don't they can be judged in effect of that what the state court concluded and what the nub of this case is and we submit is that the petitioner in this case abandoned his appeal by not following up during the nineteen year period between his now is nine hundred ninety three sentencing and two thousand and twelve when he first expressed through his new counsel a desire to revive that long pending and technically that long pending appeal remained pending this entire time that was never dismissed it may have been moribund in the sense  that i'm sure you would argue that your office could have had it dismissed at any time for failure to perfect but it never was dismissed we could have moved earlier to dismiss it for failure to prosecute the pulp division could have done that on its own motion they actually don't do that in cases where no counsel has been assigned but under the state rules the respondent in the appeal has the right to move for dismissal of the appeal and of course if that had been either s appeal in two thousand and twelve he came up with after the fact allegations about why he didn't appeal which were refuted by the record and was rejected by the state court he claimed for instance that his attorney promised to take care of the appeal if that were the case the state court said well why didn't you in two thousand and eight when he wrote this his state court trial attorney about the trial file from the nine hundred ninety three conviction when he mentioned anything about the peel the state court found his explanations incredible and refuted by the record that was a permissible factual finding it certainly wasn't a clearly erroneous factual finding and it wasn't an unreasonable exercise of of the state cour discretionary power to control its docket to dismiss an appeal that had been pending for nineteen years and no action had been taken and no good excuse had been shown for the action of the district court here also found a waiver although at a different point right rested on the district court relied and there are grounds which we submit is an appropriate alternative holding as well the district court said well even if you presume and we don't agree with this in the state courts and agree with this but even if you presume for the sake of argument that the defendant didn't understand how to litigate an appeal until he was convicted again in two thousand and four and actively pursued an appeal from that can even if you accept that still he waited eight years between two thousand and four and two proceeding he had perfected in his appeal exercise poor person yes yes your honor he submitted a pro se letter asking for a person per person to be assigned he submitted the documentation proving that he had no finances now he alleged in two thousand and twelve that his attorney did it with did it for him and just basically sent him the forms and told the mail it to be a television still he was aware that the forms existed and he even if you accept that allegation he mailed them to the  that he had this outstanding nine hundred ninety three appeal that he had been denied the opportunity to pursue it was eminently reasonable for the stay course to include that he would have said something to somebody during a nineteen year  merely because his sentence has been enhanced based on the conviction under attack he's completely served the ninety three sentence and the defendant any meaningful difference between having counsel at the trial level and having counsel for the for these purposes your honor we submit that there is and the reason why some federal courts have said that gideon is different and gideon is special is because the getting in right involves the right to have counsel on the termination of factual guilt of course appeals are important and important part of the system but there is something fundamental about having a lawyer at trial when you're defending against the factual allegation of guilt and being able to marshal the facts in your favor and being able to present a factual defense to a jury which is something which is exceedingly difficult for an uncountable person to do and that's why in various contexts the federal courts have held that give you a special right and in lackawanna county that's why the supreme court focused on getting in specifically instead of right to counsel in general if we go on to the second exception your point is that this is not the first and only forum he had available to make his claim even if that exception recognised by the circuit yes your honor first he could have tried to perfect as much in ninety three appeal within the nineteen year period second as i also mentioned under new york law he could have litigated the issue of the constitutionality of his nine hundred ninety three conviction at his predicate felony sentencing hearing and hearings in two thousand and two thousand and four he could have gone to the state courts and said there's a constitutional problem with my nine hundred ninety three conviction he never did that this is not a situation to expand the exception to the custody requirement because there were alternatives that this defendant had to exercise over in one thousand year period unless there further questions will rest i think counsel's words are important he said that if mr taylor waited from two thousand and four to two thousand and twelve and during that period he knew that he had been denied an appeal that he should have mentioned out or would have mentioned it he didn't mention it and the reason he didn't mention it of course is perfectly obvious he didn't know it he knew that there were things you could do to challenge an appeal but the very fact that he didn't do that you know all that time is ample evidence of the reasonable ness of his but not knowing and as far as the court of appeals of new york finding that it was a tactical decision on his part to decide now not to waive the appeal but to try to go on with it there's no rhyme or reason why if that was so he would have waited from two thousand and four to two thousand and two the only logical explanation is that he didn't know as to not waving or waving between two thousand and four and two thousand and twelve he's writing letters trying to find somebody who can help him he did finally in two thousand and twelve and right away soon as they knew they didn't have  unreadably is under ed not supposed to unreasonably interpret a supreme court decision and i submit that it would be very unreasonable to interpret the supreme court decisions as adding  presumption that he did way the supreme court is very clear the presumption goes in favor of preservation of the rights not against it and if i may say one other thing he's being accused of not perfecting his appeal the notice he was handed as to trial level only says that to exercise your right to appeal you ask your counsel to notice the appeal it says nothing about going on and doing something to