that the state court recently determined that council made a reasonable strategic decision and of course the presumption there's a presumption that counsel's actions might be considered sound trial strategy going to be a reasonable strategic decision if it's not an informed strategic decision i think the answer to that your honor is that strickland permits counsel to make a reasonable decision that makes particularly for further investigations unnecessary and i believe that's what happened authorize mistrial or did it mandate a mistrial was unclear i think the law is unclear on that i think the iowa rules even to this day are unclear of course on direct appeal the  of substitution before the jury retires it doesn't speak about what would happen afterwards and so then it certainly doesn't say what the remedy would be here let's be specific was that victor not that was dick to your honor and why was our brief from two thousand and one which says that that counsel could allow substitution of an alternative during your deliberations could allow that's a different issue the issue we're dealing with to him but the evidence here here that this trial is mandatory if you don't know that with your opinion still be the same and we don't have that the record doing we do not have that and i think that in years to the detriment of the petitioner are going to need that and i don't i don't believe the state needs that i think to prove his case to satisfy is a burden under add and under strickland the petitioner would have to show that and i think at a related point is that strickland doesn't look at counsel subjective state of mind to what he knew or didn't know strickland looks at the objective circumstances of the case and so as the right versus next case from this court suggests it's the wrong question quote unquote to ask what counsel thought the law  was the question is whether a fully informed reasonably competent attorney could have decided that that they didn't need to object that he didn't need to move for a mistrial in these circumstances and i think under the facts of this case that's that's true and that's because the defense counsel they need to as he testified he didn't want to mistrial because he wanted this jury to decide the case because this jury is the jury that saw the really extraordinary view of the prosecutor by the district court and then this jury was also as i will court of appeals later described it given an extraordinarily stern instruction which you argue that in the face of him having moved one nation if you're right about his thinking i could imagine explanation for why he moved for the closing argument this trial but there are certainly tensions between what here here must have been extraordinary outside the presence of the jury the judge really gets after the prosecutor and then in front of the jury let me write the review came after the mr a motion correct and did the council acknowledge or that the re after immediately after the review was there any dialogue about whether it was whether it was curative and count and defense counsel of mine yeah they did need to do that if if they thought that the good instruction wasn't satisfactory and they did not do that so tacitly were led with their idea that they thought it was  and really that explicitly in the post conviction proceedings they say because of that rebuke again that eventually they gain a tactical advantage they thought this was their best opportunity for a favorable verdict  and i think looking at the strength of the state's case and the really the weakness of their self defense theory i think that you know that's a right was a reasonable certainty that decision for counsel to make  role that that was a gloss that the i would court of appeals underactive pale put on the rule really and again and victor they didn't have to even state that because their decision turned on air preservation because the defense counsel had not preserved that air ok if i could i'd just like to turn to the prejudiced analysis so it is a little fuzzy about whether it's mandatory absolutely and i and so this this her knishes neglect by everybody from the trial judge on down was all on an issue that was why the that's correct senator that's the state's view of of the and so if i could just turn to the president's analysis i think our starting point for that analysis is that the united states supreme court has never defined stricken presidents in the context of a motion for a mistrial and so i think point out that even in that context the carter versus come to case from this circuit suggests that federal habeas relief is only warranted in the failure to extend context when what the state court did was objective and reasonable so that question was not put i guess at the very least we can infer that based on their testimony about just generally they didn't want to miss trial and then petition hasn't had satisfied the burden to show otherwise that they would have asked for an automatic mistrial at the state argue the hamper eleventh circuit pam in case the district court i believe we did your honor why would the court since the court ruled squarely to the think that relevant question is not what actually motivated counsel but what reasonably could have motivated counsel in that case counsel was in fact unaware of a legal argument that was a little that's right i'm not sure means even better present yeah and hammond jives i think with right versus next with which is the case we cited from the circuit where it says that strickland only asked the objective question of quote whether the law required an objection it doesn't ask the subjective question of whether counsel knew the law and i see my time is up thank you for your time judge bennett found the we have rebutted by clear and convincing evidence that these particular trial counsel knew the mistrial rule so he held that they were ignorant of that particular rule that salmon counsel did not know at that time that state law entitles him to a mistrial on request held irrelevant your honor in williams versus the in the weekend's case and as well as the killing in kay hagan's was extensively discussed he talks about the question of ignorance of the law and you also look at the hinton case that we submitted in the twenty eight j letter say in this case your honor is that you are right in that particular case in the context of the day before they sought a mistrial the next day they claim they made it a teacher to decision but it was and based entirely on ignorance they did not know the rule when judge he's the one that actually did the direct appeal brief and it was mr pallas who said that it was on appeal that's when he discovered the rule based upon improper substitution he didn't know the rule and if you look at the actual record it court of appeals decision first of all this question of the states look like op a will assume this the issue or honor is that at no point did any of the court of appeals the post conviction court or the direct appeal court ever make this reasonable mistake of law defense or base that in their particular decision instead they basically made a finding based upon something that the individual attorneys were totally ignorant there's no duty to honor i think what you're getting into is whether us a federal court can can interpret questions of state law if you look how the court of appeals decided this case for the first under that ruling didn't exist to try they did not indicate affect the rule on its face that have a thing to do with mistrust and say anything about this that was not if you look at the actual post conviction a ruling they did not and they had an opportunity to make that decision your honor and say well look we can justify this on the basis that it wasn't a failure to protect the rule of law there's there's no want to kishon at the level of post conviction appeal that it was uncertain that it was unclear that he couldn't have failed to predict that it was a new rule of degree that they knew that at least they had the option of moving for this trial that's not that's not what they said your honor in terms of on the basis of improper juror substitution the individual adjudication your honor they based upon a strategic decision dealing our district court yes we're reviewing our district yes said yes our district court's decision was based upon what i consider a highly questionable assumption o cited state vs wade in support of their particular position now essentially the state argues that the court of appeals erred inciting state versus white as precedent you're into a question of whether the state court interpret its own law this court is not permitted under hague b s you keep saying that you're wrong with respect to it with respect to strictly that time in the state law that involved after councils actions  clear to me the other way that the only remedy is to replace the juror there's no mention of mistrial here alternate jurors place any juror who becomes unable to actors disqualified before the jury retires and if not so need each other and be discharged and the error occurred at that particular point in the attorney was not aware of even that really or citing your honor so how could have they made a tactical justification based upon complete as a matter of state law that's their central are no it was clear on its face or on it that's not that's not what i see that as the little and by the way though the tourney's in terms of you do have to credit the attorney's analysis they did not argue all what would happen he would have known the following there are that prior to you can only once they retire to deliberate they may not be substituted so at that point the wasn't the evidence that is from the two events lawyers whether it was asked for a mistrial or whether instead to make a strategic decision to go on the case because of the advantages that they gain because of the he lost the day before he had no chance in this particular case but the other part of it is too is that we're getting down to him obviously the rules of this case but throughout this case your honor and assessing the reason most of their actions race was the entire issue in jury selection during trial during closing arguments and then what essentially they discovered is is that after the jury had been deliberating essentially you had a person who admitted that indeed she was racist and that she harbored resentment against hispanics and so in terms they had to recognize at that point that was a make a significant error and there was no time to not happen during trial i'm obviously not expecting during trial if there's a rule of evidence that you bill set aside that it was after deliberations had begun there was no indication and there were some total of their responses to the nature of the air was um there was no other indication of a question a waiver is incredibly important it's the central of the factual finding the judge  you can't waive and consult but he essentially said that the court of appeals assistant he acquiesced to the air you can't consult with consent to that if the attorney himself is unaware that there's a violation of the rule itself your honor one of the basic prompts a principle of was you can't have a rule about a remedy reading the text of the rule he would have discovered that indeed he did when he looked it up mr pelz when he looked up the rule he was preparing the appeal realized that he had made a mistake and at a forty three of the trial  prejudice because it seems to me that the district courts definition of prejudice in court has got to be it's totally can wire but if if it's not the if it's not the end who are the state could possibly be entitled to prejudice i think the other part of it is he yes he posed the question as being answered by what he already said which was in the division performance analysis book in in terms of the deficient performance that's not what i want to stay with pre if counsel if counsel would counsel given his testimony as to his view of the state of their view of the state of play after the trial judge's view and taking into account case the next day would object of counsel when confronted with someone who admitted that they were racist against hispanics that they admitted that they lied to the attorneys now that the co that the next trial would not be better how he didn't know he didn't know that there even could have been grounds for a mistrial he didn't know the rule that's the linchpin of this case he did not know the whole matter it doesn't matter  if you look at wiggins deficient performance searches tejas justifications flounders on the rocks of ignorance no knowledge no strategy that's the linchpin of this case that's not that's an investigation and evidence me explore that knowing that was part of the deficient performance in this particular case and the question is because he didn't know you're getting into what an objective lee reasonable counsel would have done because he didn't tender those reasons  reasonable lawyer he should have made the motion that's the inquiry or as objectively reasonable lawyer he should have made the motion and that's those that's the standard are strict i think why i didn't get into that your honor is because why get into this alternative hypothesis if he doesn't  also this was as good as it gets and so the answer would have been subject to all the stuff about whether the defendant has a personal right to be in wall counsel would have said i'm not going to make the motion because that was decision was made and he can't talk about waiver if he doesn't know and i mean