the claims are about discrete that that sort of i don't think that's a fair characterization of the record first of all when mr hoey himself testified right at the outset of his direct testimony when asked what was your and per se petition i think can be construed could only as having pointed to mr hoey in his capacity following the sentencing hearing for not having raised this kind the other point that the very focused on is that the district with understanding whether this claim i mean was actually presented to the court you've got counterfactual that had you presented it clearly you still would have lost but has any answer and the question of whether you presented it fairly well i think it goes to the fundamental fairness point your honor made with regard to the commonwealth of interest the commonwealth didn't raise an opportunity to respond to anything that was of relevance to the district court how the court found process is working that is your presentation to get to the district court of the hades claims being pressed on appeal i think it's fair to say to claim is not presented exactly so i'm not trying to fight with your honor about that the point i'm trying to make is that the question of deficient representation on mr holloway was not considered relevant by the district court because the district court was asked to consider the exact same deficient representation on the part of mr green and it declines to address that issue i found it on necessary to address that issue due to its you on prejudice so there is nothing missing from the record there is no view of the district court that this court would have had the benefit of the record would be exactly the same had the claim been articulated in precisely the way it's been articulated now so your position is you back doctrine and it clearly the test for relation back is satisfied here that standard is whether there's a common core of operative facts and whether the facts the facts relevant to each are therefore different in time fair enough to say that but they're clearly not different in type and relation back says that no relation back when facts are  a claim associated with ineffective assistance on appeal based standards have been applied the same way now they traced the different routes in the constitution of course and they're different in the character of the things that are expected of those counsel right yes but not in regard to the error that took place in this case which was to fail to raise the strongest claim that mr richardson had for the relief from the on the awfully imposed sentence that was as the strongest claim it would have been appellate council's responsibility this is this fellow was sort of on the one inch wire right now the way this came up was after of full sentencing hearing at which he was represented and then mr richardson at the start of the second hearing hearing at which the the trial judge had previously said i'm only going to impose sentence or surely nothing else to do he he decides he doesn't like his lawyer any more  my question to you is twofold one is it reasonable to expect under those circumstances and given the very harsh comments the trial judge directed  that sensing that there would have been either any difference in the sentence or even ignoring that there would have been any difference had this been raised on direct appeal wo probability that the pennsylvania public words would have said under those circumstances that there was a meaningful deprivation of the right to counsel because there wasn't a more fulsome discussion with mr richardson about made in that sense there was absolutely no waiver and there was an absolute denial of counsel all together was there not some discussion wasn't there really you've been well represented by mr green the requirement to make clear that the court understands what the guidelines are recommendations but not having studied them closely myself before this case struck me as quite closely related to the ones that apply in federal court today since in that every context talk about appeal as beginning with the filing of a notice of appeal that you had supposed to have any authority all case law or statutory law or rules of procedure then we are in the zone where with all the rights associated with the six men are in play and if you were to lose those rights you would have to be by way of a knowing loophole that that dissented in martinez would invision which as if there is a critical constitutional violation at the time trial and it's preserved it will be addressed on appeal if it's not preserved at the time of trial of what is being argued is trial counsels are still pretty appeal is trial counsel it was easier not to say hey you can't do this without the kind of probing inquiry that pennsylvania law right just how does it if it's if it really is something that should have been raised how does it help the commonwealth to say this word or look at it and get it doesn't then we emphasize the point of how can you dispute it sounded to me like you were trying to make us think and prong of strickland argument or you yes i had believed that the only way that the court could reach this particular different but but we've got a case in the nino which has been cited in the briefing where we said that that is not the standard the standard is not whether the sense would be different the standard is whether to figure out whether one of those arguments was made in the rule of trial counsel or the other of the rule of appellate counsel where you're trying to draw the line where your honor i didn't work i don't understand if you're if you're trying to make a distinction between the  point where the sense is spoken and everything else after that is how it then how was the i think presented to you not a circumstance where the same human being would be one in the same time acting in both capacities and you'd have to make two separate arguments you had a prior to a finding end of guilt the rule of counsel certainly you know to identify any court errors that might be occurring during the course  changes in the law that have occurred over the wrong pendency of those hadiths action but the fundamental claim has always been the same and it's that was searching isn't title to move anything because he was required to represent himself at something without ever it's such a small adjustment that i don't think it augurs a vast opening where everything can change with a new supreme court rules coming down council or so it's got a i think that when you hang your hat i think that's best very close perhaps the term fusion is they're not sure i would use it but she claims it would be claim i claim and claim mine is about i think what we're in here were they terrible when it comes to all of the procedural complexities of hades maybe they weren't turbot in that regard but they really were terrible in allowing so severe a sentence to stand for a man who had no counsel at the sentencing where it was imposed that's not tolerable that's not something that would be easy for a general for fully engaged court of law for just what's the right so moving past preservation one of the