                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            OCT 15, 2008
                             No. 07-14112                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 05-00014-CV-CDL-4

TOMMY SCOTT,



                                                          Petitioner-Appellant,

                                  versus

STEVEN UPTON,
Warden,
KEVIN ROBERTS,
Warden,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________

                            (October 15, 2008)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Georgia prisoner Tommy Scott appeals pro se the district court’s denial of

his 28 U.S.C. § 2254 petition asserting ineffective assistance of counsel based on

error under Bruton v. United States, 88 S. Ct. 1620, 1621-22 (1968). We

previously vacated the district court’s order and remanded for it to consider, in the

first instance, whether Scott was prejudiced by trial counsel’s failure to object to

inadmissable hearsay testimony implicating Scott in the murder for which he was

convicted. On remand, the district court concluded Scott failed to meet his burden

in demonstrating he was prejudiced by his counsel’s deficient performance. On

appeal, Scott asserts that counsel’s failure to object to, or request a limiting

instruction for, the inadmissable testimony was highly prejudicial under the second

prong of Strickland v. Washington, 104 S. Ct. 2052 (1984).

      We review a district court’s denial of a § 2254 petition de novo. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Factual findings are reviewed

for clear error, while mixed questions of law and fact, including claims of

ineffective assistance of counsel, are reviewed de novo. Id.

      In our review of this appeal, we realized that substantial portions of the state

trial court record were missing. The State has now supplemented the record to

include the transcript of the entire trial in state court. The district court, however,

has not had the opportunity to review the full record. Thus, we remand this case to



                                            2
give the district court the opportunity to review the full record in the first instance.

In its review of the full record and application of the prejudice prong of Strickland,

the district court should determine “whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt respecting

guilt.”1 See Strickland, 104 S. Ct. at 2068-69.

       VACATED AND REMANDED.




       1
         In its opinion, the district court only excised the evidence presented by the
inadmissable statements and found the remaining evidence was sufficient to sustain Scott’s
conviction and did not conduct the step of determining what effect the inadmissable statements
had on the jury’s verdict.

                                               3
