now my name is molly karl and i'm an assistant federal public defender in the district of arizona and i represent the same dickens that i'm now mister dickinson it was convicted of attempted murder with no finding by the jury that he intended to kill anyone instead the jury he had committed to attempt murder if you intended only serious bodily injury to the back to him and the state court held that this jury instruction was error and the state now doesn't dispute something that the arizona court of appeals considered but it's not an appropriate consideration here because trial counsel was laboring under the misimpression that intent to cause serious physical injury was not so he had no need to argue that there was no intent to kill and he certainly could have made that argument i thought though that the prosecution theory all along was that he was trying to kill him and that it looked at the evidence in the light most favorable to the the state so its analysis is really more of what the evidence sufficient to sustain a conviction of intent to kill whereas the mean the problem is we have to we have to be convinced that that this error was so prejudicial that we question the efficacy of the fairness of the circumstances review of the evidence i would note that the standard is high to clearly and gray the evidence was that the defendant said he was going to blow the victim's brains out and then tried to shoot him a number of times here the evidence is is less egregious and that the evidence in may be less egregious but it's pretty persistent i mean st you have the frets then you have the you know i'm going to take an ax to you and then he says i'm going to kill you and then he gets in his car truck and he runs him over twice and then comes back and says to the witness i did it that's pretty strong evidence that he was trying to kill him  in that case the defendant's intent was not necessarily to kill the victim he also told mister all caesar the homeowner i'm going to run him down he didn't say i'm going to kill him and the actual evidence the testimony from mister hatch of the incident was that the passenger side of the truck hit his bike then he fell off the bike and it looks like then he rolled under the vehicle so  was enough so the trial judge was skeptical that the jury would find even that and the trial judge of course heard her the evidence was able to value the witness and there are not there are a few places in the transcript the moments that are marking under arizona law an instruction that lessens the state's burden to prove that alan it requires reversal you don't have to look at the evidence it requires reversal and so i had trial counsel preserve that issue which the your position that we have to look at the standard versus the impact on what happened at trial while you're on are there cases out of a published decisions out of three other circuits and an unpublished decision in the circuit  raised them and had been reviewed for fundamental error all you'd have to prove is that it is that the result could have been different correctly i'm sorry ok ok and when and whether the result would have been different or could have been different whatever the result what happened ok so that's that's strictly but if you if you would if if counsel on direct appeal had argued that it was fundamental error then all you would have to argue is that it could have been different mister dickinson has argued that he's got sort of two avenues to do that one is to sort of go through the air on the at the appeal of the others to sort of go through the error committed at the trial if you go through that we take  the st one to go through the error in the appeal isn't it a isn't that a parent even if we have to do strickland and apply that to what would have happened at the appeal that there clearly is error and that the court of appeals would have ya i mean the air in the air here is really quite serious i mean this is not this business that this is the this is a slam dunk in our court it comes up on direct appeal if this is this been made by a by one of short end if we were if we were here if we were here on a question as to whether there's you know given all of the deference to the government as to whether there's sufficient evidence to sustain the verdict i think that's an easy decision and that's an easy affirm for arizona if that's if that's what we're asking but that seems to be that if we were looking at this on direct appeal that is the wrong question you've got you've got a bad error and you have the possibility that you got that you've got a juror who says i've got some questions to whether he really intended to kill him but that's all but i don't have to buy that all i have to find is the intended interim and that's pretty apparent i mean i think that's an easy what if that's all you have to find  in arizona this is a really this is a really easy berg under under almost and under any explanation here but if you have to find that he intended to kill him when he ran him over with a truck i think that's a culture question jury that he was in time going to tell someone as opposed to last time up is harder thing to do but he understood that intensity hell was required only allow that to go forward to the jury and i think all the if there if there's a difference between the standards a review here we would conclude at the trial level applying strickland that while there may have been error it's insufficient for relief because there was substantial evidence of intent to kill the victim and dickinson cannot show a reasonable probability that the jury would have decided differently or properly instructed but then we would say there was prejudice on direct appeal which is sufficient for relief because it would have been difficult for the state to show that the in structural error was harmless beyond a reasonable doubt so you have an applying two different analyses one at the trial level one of the appellate level using different standards of review and therein lies an inconsistency that i just can't resolve i i think i understand your question and when if you talk about the standards of beauty that we applied for i'm not sure if your question goes to the two separate argument play the claim was raised on direct appeal but as judge beatty notes arizona law is such that if the trial counsel fails to object to the instruction then the best you get is fundamental error review which as i understand is somewhat akin to our plain errors standard under federal rule fifty two dollars whereas if it had been properly preserved as judged by  beyond a reasonable doubt even though there was a or and and your argument if we accept it is that even though in the absence of an objection there may have been no fundamental error at the trial level but nonetheless on hey vs review we're going to reverse and remain and and find prejudicial