law is deficient performance and here the district court found that injury instruction was misleading if not actually erroneous further failing to object to a jury instruction of prejudiced your client is not a strategic decision that's hidden from view is both problems of strickland the court of appeals decision to the opposite is an unreasonable determination of the facts and a reasonable application of this strictly it will in one day didn't really even apply stripping to counsel's behavior just sort of decided this is what they were talking about into that decision is not supported by the plain language of the record mr so i would let me of alert you to something that troubles me about this is that the jury then asks their their question the we're not somewhat worried about the definition of utter disregard for human life because the court just says i've already told you about that but then they say is there a time element associated with the other just regard corrent  fore during and after and here's here's where i'm kind of stuck i'm not at all sure that the state court interpreted that jury question the way the jury meant it they seem to think it has more to do with conduct that's it issue as opposed to timing but in some ways might at question for you was so what i mean that the worst that happened is  the jury got an unhelpful supplemental instruction and the state courts themselves don't think that this had any impact on the outcome of the case if we were hearing this on direct review maybe we would need to take us to look at it but this is layered upon layered with ed deference so even if the the on the spot the court didn't quite understand what  getting at what's the harm the harm is that they were precluded the harm your honor is that they were precluded from viewing evidence that could actually exculpate the the mr powell here that they were not able to utter disregard calls for to tell him the circumstances consideration here are limited to only looking while he's in the car but this excludes behavior that he was assaulted the knife was pulled on him that he came back one point if you but the jury also had before you know a different point if you know that his actions both before and after and let me just throw two more things into the mix number one the testimony of the lawyer who actually  he might be better off without having the jury think about his behavior earlier and later and also you know they  his account is not is not something that they had to believe the jury had a lot of other instructions as well so why should we take this one nicer it's not so much taking it in isolation your honor but it follows  this case is this court's decision in the fear of or you have more than one instruction on the same matter and they conflict here we have jury apparent jury confusion from two questions back to back about this element the response they get is not is not responsive it's an incorrect statement about law and there this court found that even if one juror is confused the reliability of the verdict is undermined and that prejudice so here because there's other instructions there conflict with this one and should they should conflict with this one because this one is an on lawful statement that we have confusion and we have prejudice to answer your point about trial counsel's the injury causing conduct determination it's they're saying here you know i knew it was limiting i knew it allowed them to only consider the circumstance but that's not what the law says and that's prejudicial to and as this court stated in  that's not what the state court found they found based on the trial attorneys statement that it was reasonable to think that it could have actually helped him because it limited the time period to when he was in the car is that was to the evidence that the victim was had his night his neck cut and the argument that the power could have gone back and driven back and done that so it it took that allen of the calculation by saying that he had to look at just what happened in the car again we're don't we have to defer here and that's what that was consequence of appeals pound why is that wrong goes to prejudice and that's a different matter altogether here it is the it on the st prong of strickland it is almost per se deficient performance the fact that it prejudice that he is prejudiced by not being able to consider these other activities outside of that it shows that it's not even a reasonable strategic decision because this court again kid said that that's not the case you also have to think about here over the four day period of the forty period of the trial he began by saying i want you to remember that mr powell was assaulted she did not act with utter disregard in his closing he said again he did not act without her disregard for human life but that he or she throws that away so that to have them considering the t homicide he's acquitted on the attempted robbery so so the jury seems to be you know trying to match his behavior at the different moments and during this with this court's decisions in cuba and this court's decisions in case the fact that he was acquitted on these other ones go to show that there was something wrong here because as this court said in kate's the fact that he was acquitted on the other two shows that they weren't buying the state story so to have them a state performance counsel wasn't a patient here because he made a reasonable strategic decision to agree to the trial court answer to the during question counsel concluded that it was the ultimate bandage to limit the jury's consideration of the reckless injury and at the time council decided to agree to this answer you know he didn't know what exactly the jury was asking even taking mr paul's interpretation that the jury was specifically asking about utter disregard  the information that the jury can consider and he did that because as counsel explained in s the post convention hearing he thought that that was the most defensible part of the case that he had no it's a matter of wisconsin law it's to be sitting at steering wheel thinking now i'm going to you know recklessly run over this victim or in the mental state not correspond to the time when he's actually carrying that my understanding is that the mental state have to relate to when the defendant takes the action so mr paul when he decided to get in a car and drive off he had to be aware at that time disregard that was never the defense or the defense was always that this was an accident and even though counsel you know mentioned in the opening and closing argument that you know he he brought up the language of utter disregard if you read those comments in context it's it's i think it's pretty obvious that counsel was really just saying that his client acted accidentally when he ran over the victim briefly and prejudice even if even accepting mr pollin interpretation of this instruction i don't think that there's any prejudice here because i think it's pretty clear from the record that the jury would have still convicted mr pawle of st degree reckless injury  even had they gotten a proper instruction and important to that is that the jury even after hearing this instruction even if we can assume that the jury was confused by the instruction or thought it could only consider the specific act of running over the victim when assessing utter disregard it still found that that actually wrote that he acted with utter disregard for human life there really isn't a whole lot of other evidence in the record that would tend to negate that finding certainly nothing i don't think you know the jury rejected the act the accident defense which i think show that it rejected the idea that mr bell had to get away from this fight and only accidently ran over the victim with the  his own admission he interfered with the victim's friends attempt to call nine hundred and eleven to get help and he immediately left again he never turned himself in to the police for the crime and in fact i think the record shows that he got rid of the car that he used to run the victim so i even had a jury been properly instructed it would not have found that mr powell did not act with utter disregard here unless there are any further questions asked this court to affirm the district court decision that i see none so thank you what you did here you can see it in his testimony his post conviction testimony that i saw this is limiting i want to i didn't want them to consider these things but those are the to tell me the circumstances that requires them to as to the accident actually it goes to a main defense  whether he acted criminally reckless but that doesn't talk about utter disregard so while that may have helped him the fact that the jury did not find him that he acted with accidentally does not mean that they also had to find that he acted with utter disregard those are two separate facts two separate analyses that are at play here the other thing that we'd like to point out is that this can't be a reasonable decision based on the language in kate's there is prejudice here because it precluded the jury from considering the totality of the circumstances the state admits itself that there was evidence here that mr powell did not act with utter disregard that the jury could have found this this is exactly the point  and here even if the supplemental instruction had some benefit to to mr powell it muddled the jury and made it to the jury's understanding and made it impossible for them to actually draw down the