particularly during closing argument introduced a raft of presidential prejudicial argument and material that we contend sway the jury's verdict in this more probable than not that the jury's verdict was swayed by this material because contrary to  mastering court's finding in this case which although this as a material fairly free guy would contend is a clearly erroneous assessment of the facts of the trial this is a very close case indeed there were four impartial third party witnesses stand and said we saw this truck before the accident and rainbow clique nelson was not driving the truck it's unusual that you would have a case where there's a finding of guilt or for independent eye witnesses would come forward and say that witnesses the government had three witnesses who much like the fence witnesses saw the truck before the accident there is nobody including the defense witnesses who saw the truck at the moment of impact there as all the testimony from the defense and the government five people who saw the truck sometime before the accident it all starts to put on reconstruction experts right yes your honor there are three for the government one for defense and interestingly enough none of them really comport with each other which is fairly typical in my that wasn't present in this case what the defense witness testified to was that randall nelson was lying down either with his head toward the passenger door toward the driver stick that the shift stick that when testimony here is this conflicting and not the spog well this is you know there's nothing unusual about the case in the sense that you had experts and eyewitnesses on one side saying he was the driver and defense witnesses on the other side of the jury chose to believe the state's case why is it no more complex than well your honor the reason why i bring this up is that we are certainly not raising sufficiency of the evidence here  stay put forward sufficient evidence to support the conviction the reason i bring it up though is under the strickland standard i have a burden to prove that there is a reasonable probability that the jury verdict would have a different and relevance that analysis is the strength of the government's case and indeed the pro the excerpts of record the nevada and the nevada supreme court and structure the nevada model jury instruction for reasonable doubt has been the subject of some litigation that i'm aware of that is she was not not brief properly and out and say that the reason without standard that under the law can have some ability every fact but it's not dispositive it's a balancing test as in most things in the law but i can state that what would have been much more effective would have been a contemporaneous instruction from the judge after a timely objection you're not placing gentlemen of the jury but the prosecution how the prosecutor just defined reason it out is incorrect i like to refer to the instruction this is how reasonable doubt is defined under the law that would have had a a much bigger impact on the jury than instructions are read prior to closing argument you know sort of limited time we've read the briefs we understand the contingents about misconduct assume for the purpose of the question i'm about they asked that misconduct did indeed occur the district court in this case held in the evidence you're hearing didn't yes and the trial defense counsel appeared testified correct and during closing argument and it's understandable it's a complicated area the long prosecutor discretion is cabins severely and what kind of arguments they can make during closing argument it's an stricken claim and i'd like to say the rest of my time for  well i think it is you know i think the prosecutors do because people even gets more unusual when they start to serve the big sentences first and they get paroled within the institution on that and they have a small sentence left at the end another issue we have is that issue is not before the court the issue before this court is whether or not his trial counsel was ineffective when he didn't object to alleged prosecutorial misconduct i think that's  kind of a theme that runs through this case we don't get to the to the merits of the matters we just kind of discussed was counsel ineffective and we apply a strickland standard in this particular case the supreme court found that the evidence against mr nelson was strong they made that finding counsel in his brief argues that this was a razor thin this case was not razor with the instructions that were given are do you know that in fact i think the district court found that they did this the federal district court stated at the time that it was made that the instruction was fine and that was what he said in his opinion their trial defense counsel was ineffective for failing to object to the reasonable doubt standard or to offer an alternative before us good and i think that i think that maybe one of the claims that was raised was the end of active for for not objecting to that and the district court did say that at the time that the objection should have been made that we just wanted to point out that there was a lot of evidence that this individual was driving and that's really not the issue that we're here on and i can recite to you if you look at the closing arguments of the prosecutor right down the line looks is all to his knees dashboard injuries testified to by two individuals two doctors reconstructionists there's injuries to his ankles caused by the pedals there's no injuries like that on her wrist so the issue of if i object and if i object and don't succeed then i'm kind of emphasizing this for the jury and i don't want to do that so we kind of makes that  based on whether it's going to succeed or not and that's what he said so his decision not to object to those things in closing you also said that he likes to in his closing argument he would then address those things that that were raised that perhaps could have been objected to he said that the evidence you're hearing that even if he had made those even now he still wouldn't make those objections the other thing i want to look at and the one minute forty seconds factor just in closing your honor and your honors i'd like to mention that the massachusetts state supreme court's conclusion was not an unreasonable application of supreme court while they looked at the case they looked at  facts of the case they address whether or not there was prejudiced if the comments of the if the comments of the prosecutor government counsel mentioned that some of the testimony defense counsel like to point out very quickly on ego are two sixty two defense counsel said this is a strong defense case he's ever had a trial the government's case the good badness here was hardly overwhelming talking about how upheld counsel in that case failed to supply them with any real record citation and basically wrote such a bad three for lack of better word that he was junction which partly would go into partly explains why them the mastering court's decision to the contrary which is an unreasonable application of laws applied to these facts was predicated on perhaps the mistake of defense counsel to fallacies and prove the credibility of the witnesses when you don't ladies and gentlemen the jury you don't have to look for reasonable doubt because if there's a reasonable doubt out there it's going to find you you do not have to deliberate in this matter she essentially said because if you believe in your heart and mind