[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 20, 2006
No. 06-12398 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-22365-CV-DLG
EZRA NAYLOR,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, James
McDonough,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 20, 2006)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Ezra Naylor, a Florida state prisoner proceeding pro se, appeals the denial of
his ineffective assistance of counsel habeas petition under 28 U.S.C. § 2254. His
claim centers on 1) his trial counsel’s failure to object to the prosecutor’s
statements during closing arguments pointing out Naylor’s silence and 2) his trial
counsel’s.1 Naylor filed his § 2254 petition in August 2002, challenging his state
conviction for first degree murder.
During Naylor’s trial for first degree murder, the state called several
witnesses, including Naylor’s ex-girlfriend, Yolanda Walker. Walker testified that
she rented a gold Toyota Camry on September 6, 1997 and that Naylor was “free
to use it if he chose to.” The Camry was later linked to the September 9th murder.
Walker also testified that at some point after the murder but prior to Naylor’s
arrest, she asked Naylor what was wrong, referring to the events of September 9th.
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We do not address the second argument that Naylor raises on appeal—claiming
ineffective assistance of counsel for the failure of his trial counsel to argue that he was tried after
the term of court when his indictment was filed—because the district court denied Naylor’s
motion for a COA as to that issue and no motion to expand the COA was filed in our court. See
Tompkins v. Moore, 193 F.3d 1327, 1332 (11th Cir. 1999) (“It is not enough simply to file a
brief addressing all of the issues for which review is sought. Issues not covered in the certificate
will not be considered. The only way a habeas petitioner may raise on appeal issues outside
those specified by the district court in the certificate is by having the court of appeals expand the
certificate to include those issues. An application to expand the certificate must be filed
promptly, well before the opening brief is due. Arguments in a brief addressing issues not
covered in the certificate, including any expansion granted by the court of appeals, will not be
considered as a timely application for expansion of the certificate; those issues simply will not be
reviewed.” (internal citations omitted)).
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When asked, Naylor indicated that he did not want to talk about it. Naylor did not
testify at trial.
During closing statements, the prosecutor said of Walker’s testimony:
Let me make one thing clear here, the defendant has got an
absolute right to remain silent, and you should not hold that against
him in any way. That does not apply to statements not made or
questions not answered that are put to him by his girlfriend
. . . . Sometimes the most damaging kind of evidence . . . that you can
have as jurors is silence. Silence in the face of something as
provocative or as comm[ent] worthy as this.
You have just borrowed this young ladies [sic] car. You have
it for a period for which a murder is committed. Your cousin is
arrested. You don’t return the car. The cops just called me, and tell
me they got the car, what is going on. He doesn’t want to talk about
it.
Naylor argues that his attorney rendered ineffective assistance of counsel by
failing to object to this statement. He maintains that reasonable jurors would find
that the prosecutor violated Naylor’s right to remain silent by arguing that silence
can be “the most damaging kind of evidence.”
We review de novo a district court’s denial of a § 2254 petition. Davis v.
Sec’y for the Dep’t of Corrs., 341 F.3d 1310, 1313 (11th Cir. 2003). Federal
courts should not grant habeas relief on “any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim—(1) resulted
in a decision that was contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). A state court’s summary rejection of a
constitutional issue qualifies as an adjudication that is entitled to deference.
Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254–55 (11th Cir. 2002). The
state court only need reject a claim on the merits, and does not have to provide an
explanation for § 2254(d)(1) to apply. Id. at 1255.
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), in
order to prove that counsel was ineffective, a petitioner must show (1) deficient
performance by counsel and (2) a reasonable probability that counsel’s deficient
performance affected the outcome of the trial. Id. at 687, 104 S. Ct. at 2064. If a
petitioner fails to prove either deficient performance or prejudice, he is not entitled
to relief. Id. at 697, 104 S. Ct. at 2069. “Even if many reasonable lawyers would
not have done as defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable lawyer, in the
circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
1994). Because both parts of the Strickland test must be satisfied to show a Sixth
Amendment violation, we need not address the prejudice prong if Naylor cannot
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prove inadequate performance. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000).
First, Naylor must show that his trial counsel’s performance was deficient.
The Supreme Court has clearly established that the use of a defendant’s silence at
the time of his arrest for impeachment purposes violates due process. Doyle v.
Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976). “Ineffective assistance of
counsel may be established where a defense counsel fails to object to the
prosecutor’s very serious instances of prosecutorial misconduct which include
. . . argument[s] which invited the jury to consider constitutionally protected
silence as evidence of [the defendant’s] guilt.” Fugate v. Head, 261 F.3d 1206,
1223 (11th Cir. 2001) (citations and internal quotations omitted and brackets in
original). Still, “[t]o determine whether the prosecutor intended to comment on
[Naylor’s] failure to testify, we must examine the comment in context.” Baxter v.
Thomas, 45 F.3d 1501, 1508 (11th Cir. 1995) (quotations and citation omitted).
The facts before the state court in Naylor’s Rule 3.850 proceeding reveal
that his conversation with Walker occurred about a month before his arrest. In this
argument, the prosecutor clearly delineated between Naylor’s pre-arrest silence
when questioned by his girlfriend and his post-arrest and trial right to remain
silent. See United States v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir. 1991)
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(holding that the Government may comment on a defendant’s silence if it occurred
prior to the time that he is arrested and given his Miranda warnings). In his
closing argument, the prosecutor unequivocally stated that Naylor had an absolute
right to silence.
The facts here are similar to those in United States v. Carter, 760 F.2d 1568
(11th Cir. 1985). There, the defendant sought a new trial after the prosecutor’s
closing argument discussed the defendant’s pre-arrest silence when questioned by
a customs agent. Id. at 1577. Following a drug raid but before his arrest, the
defendant had a telephone conversation with a customs agent and told the agent
that he knew that his passport and insulin had been confiscated. Id. When the
customs agent asked the defendant if he wanted to explain how the items got on
the plane used to smuggle the drugs, the defendant said that he did not want to
answer any more questions without an attorney. Id. In that case, we relied upon
the critical distinction between pre-arrest silence and post-arrest silence in
concluding that the prosecutor’s comments were not inappropriate. Id. Likewise,
Naylor’s refusal to answer Walker’s questions occurred prior to his arrest and
prior to the administration of the Miranda warnings. Therefore, the prosecutor’s
comments were proper and it follows that trial counsel was not deficient in failing
to object to them.
AFFIRMED.
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