                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             November 30, 2006
                             No. 05-14113                  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
                     _________________________

                           (November 30, 2006)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Georgia state prisoner Tommy Scott appeals the district court’s denial of his

28 U.S.C. § 2254 petition. After review, we vacate the district court’s order, and

remand to the district court for a determination in the first instance of whether

Scott’s claim satisfies the test for ineffective assistance of counsel.

                                  I. BACKGROUND

      Scott is currently serving a life-plus-25-year sentence after being convicted

by a jury of malice murder, kidnaping, aggravated assault, and possession of a

firearm in the commission of a felony. Scott was tried with two codefendants,

Jamie McKenzie and Herman Morris. At the joint trial, Johnersan Adams testifed

that two weeks after the murder, he had a conversation with Morris. During that

conversation, Morris admitted that he and four other individuals murdered the

victim because he “sold them bad drugs.” According to Adams, Morris further

stated there were two “triggermen” who actually shot the victim, but Morris

claimed that he was not one of them.

      After Scott was convicted, he filed a motion for a new trial, arguing, in part,

that his trial counsel was ineffective for failing to object to Adams’ testimony. At

the hearing on Scott’s motion for a new trial, Scott’s trial counsel testified that he

did not object to Adams’ testimony because “during the course of trial, some

things slip past you. And if I did not object then that was one of those things that



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did.” The trial court denied Scott’s motion for a new trial, finding that Morris’s

statement to Adams related only to his involvement in the crime, which was not

hearsay, and did not violate Scott’s Sixth Amendment rights. On direct appeal, the

Georgia Supreme Court found that Morris’s incriminating statements did not

implicate Scott, and, therefore, Scott’s trial counsel was not ineffective for failing

to object to the testimony. See McKenzie v. State, 549 S.E.2d 337, 338 (Ga. 2001).

      Scott filed a habeas petition in state court, and an evidentiary hearing was

held. At the hearing, Scott’s trial counsel testified that he recognized that Adams’

testimony contained hearsay, but he did not object because Adams’ testimony did

not implicate Scott. The state court denied Scott’s habeas petition, finding he

failed to show his counsel’s performance was constitutionally ineffective under

Strickland v. Washington, 104 S. Ct. 2052 (1984). Scott then filed an application

for certificate of probable cause to appeal the denial of his habeas petition, which

the Georgia Supreme Court denied.

      Scott then filed a 28 U.S.C. § 2254 petition in federal district court. The

magistrate judge recommended denying the petition because Scott did not meet his

burden of rebutting the presumption of correctness of the Georgia Supreme Court’s

determination of the factual issues raised in his ineffective assistance of counsel

claim. Scott objected to the recommendation, but the district court adopted the



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magistrate judge’s report and recommendation and denied Scott’s habeas petition.

This Court granted a Certificate of Appealability on the issue of:

      Whether the Georgia Supreme Court’s finding that a witness’
      testimony as to a codefendant’s incriminating statements did not
      implicate the appellant, and, therefore, his trial counsel was not
      ineffective for failing to object to it or request a jury instruction
      limiting consideration of the testimony to the culpability of the
      codefendant, was an unreasonable application of clearly established
      federal law, or relied on an unreasonable determination of the facts in
      light of the evidence presented in the state court proceedings, 28
      U.S.C. § 2254(d)?

                          II. STANDARD OF REVIEW

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

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

reviewed for clear error. Mixed questions of law and fact, including claims of

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

                                  III. DISCUSSION

      Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on

claims that were previously adjudicated in state court, unless the adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the [U.S.]

Supreme Court, . . . or resulted in a decision based on an unreasonable

determination of the facts in light of the evidence presented in the State court



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proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A state court decision is “contrary to”

established law if (1) the state arrives at a conclusion opposite to that reached by

the Supreme Court on a question of law, or (2) a state court confronts facts

“materially indistinguishable” from relevant Supreme Court precedent, but reaches

an opposite result.” Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000). The Court

added that a state court decision is an “unreasonable application” of clearly

established law if the state court unreasonably applies controlling law, or

unreasonably extends, or fails to extend, a legal principle to a new context. Id. at

1520.

        Scott asserts his trial counsel was ineffective for failing to object to Adams’

testimony. To establish ineffective assistance of counsel, a defendant must show

that: (1) his counsel’s performance was deficient; and, (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 104 S. Ct. 2052,

2064 (1984). Regarding the first prong, there is a strong presumption that

counsel’s actions were reasonable, and the defendant must overcome the

presumption that, under the circumstances, the challenged action “might be

considered sound trial strategy.” Id. at 2065. The Georgia Supreme Court and the

district court both found Scott’s trial counsel’s performance was not deficient. We

disagree.



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      In Bruton v. United States, 88 S. Ct. 1620, 1621-22 (1968), the Supreme

Court held that, in a joint trial, the admission of a codefendant’s confession, which

implicated the petitioner, violated the petitioner’s rights under the Confrontation

Clause of the Sixth Amendment. Because the codefendant did not take the stand,

the Court held, “the introduction of [the] confession added substantial, perhaps

even critical, weight to the Government’s case in a form not subject to

cross-examination.” Id. at 1623. Thus, the petitioner’s Sixth Amendment rights

were violated despite the fact that the court issued a limiting instruction directing

the jury only to consider the confession as evidence of the codefendant’s guilt. Id.

at 1628 (holding “in the context of a joint trial we cannot accept limiting

instructions as an adequate substitute for petitioner’s constitutional right of

cross-examination.”).

      In Richardson v. Marsh, 107 S. Ct. 1702, 1709 (1987), the Court limited the

scope of Bruton and held “the Confrontation Clause is not violated by the

admission of a nontestifying codefendant’s confession with a proper limiting

instruction when, . . . the confession is redacted to eliminate not only the

defendant’s name, but any reference to his or her existence.” The Court

distinguished Bruton by noting that, in Bruton, “the codefendant’s confession

expressly implicated the defendant as his accomplice,” whereas in Richardson,



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“the confession was not incriminating on its face, and became so only when linked

with evidence introduced later at trial.” Richardson, 107 S. Ct. at 1707 (citation

and internal quotations omitted). The Court further noted the issue was not

whether the confession implicated Richardson, but rather whether the trial court

could have properly assumed that the jury did not use it against Richardson. Id. at

1707 n.3.

      On the other hand, in Gray v. Maryland, 118 S. Ct. 1151, 1153, 1155,

(1998), the Supreme Court extended Bruton’s protective rule and held the Sixth

Amendment also bars the admission of a codefendant’s confession that has been

redacted by “replac[ing] a defendant’s name with an obvious indication of deletion,

such as a blank space, the word ‘deleted,’ or a similar symbol.” In Gray, Gray’s

codefendant gave a confession to the police, in which he stated that he, Gray, and

another codefendant participated in the beating death of the victim. Id. at 1153. At

trial, the state introduced the codefendant’s confession with Gray’s and the other

codefendant’s names redacted. Id. When the detective read the confession, he said

the word “deleted” or “deletion” whenever Gray’s or the other codefendants’

names appeared. Id. After reading the confession, the prosecutor asked the

detective whether he was subsequently able to arrest Gray, and the detective said,

“That’s correct.” Id. The state also produced other witnesses who said that six



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persons participated in the beating. Id. The Court reasoned, the “obvious deletion”

calls the jury’s attention to the omitted name and encourages the jurors “to

speculate about the reference,” and, ultimately, to link it to the defendant. Id.

at 1155-56. The Court further stated,

             Consider a simplified but typical example, a confession
             that reads “I, Bob Smith, along with Sam Jones, robbed
             the bank.” To replace the words “Sam Jones” with an
             obvious blank will not likely fool anyone. A juror
             somewhat familiar with criminal law would know
             immediately that the blank, in the phrase “I, Bob Smith,
             along with , robbed the bank,” refers to defendant Jones.
             A juror who does not know the law and who therefore
             wonders to whom the blank might refer need only lift his
             eyes to Jones, sitting at counsel table, to find what will
             seem the obvious answer . . .

Id. at 1155. The Court acknowledged the jury had to use an inference to connect

the statement in the redacted confession with Gray, but the focus must be on the

kind of inference, not the simple fact of inference. Id. at 1156-57. The Court

explained “[t]he inferences at issue here involve statements that, despite redaction,

obviously refer directly to someone, often obviously the defendant, and which

involve inferences that a jury ordinarily could make immediately, even were the

confession the very first item introduced at trial.” Id. at 1157.

      In Bruton, Richardson, and Gray, the Court emphasized the jurors were

instructed to consider the confession only as evidence of the culpability of the



                                           8
confessing codefendant. See, e.g., Richardson, 107 S. Ct. at 1707 (noting

“[o]rdinarily, a witness whose testimony is introduced at a joint trial is not

considered to be a witness ‘against’ a defendant if the jury is instructed to consider

that testimony only against a codefendant.”). Generally, where such a limiting

instruction is provided, courts are free to assume the jury obeyed that instruction.

See id. at 1709 (noting “[t]he rule that juries are presumed to follow their

instructions is a pragmatic one, rooted less in the absolute certitude that the

presumption is true than in the belief that it represents a reasonable practical

accommodation of the interests of the state and the defendant in the criminal

justice process.”). In Bruton, however, the Court recognized “there are some

contexts in which the risk that the jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to the defendant, that the practical

and human limitations of the jury system cannot be ignored.” Bruton, 88 S. Ct.

at 1627.

      In this case, unlike in Bruton, Richardson, and Gray, the trial court did not

issue a limiting instruction, and, therefore, the jury was free to consider the

witness’ testimony regarding Morris’s admissions as evidence of Scott’s guilt. The

instant case is comparable to Gray because even though Morris did not specifically

identify Scott in his statements to the witness, the clear implication was that he was



                                           9
referring to Scott when he said that there were two triggermen. The implication

was the three named defendants who were tried together were responsible for the

victim’s death. Given the prejudicial nature of the testimony and the fact Scott’s

trial counsel admitted at one point the decision not to object was not a strategic

one, the state court’s conclusion that Scott’s counsel was not ineffective for failing

to object to it was an unreasonable application of Strickland. Therefore, the state

court and district court denied relief based on an unreasonable application of the

first prong of the Strickland test and never reached the second prong. Accordingly,

we vacate the district court’s order and remand for a determination in the first

instance of whether Scott’s claim satisfies the second prong of the Strickland test.

      VACATED AND REMANDED.




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