                                                    [DO NOT PUBLISH]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,


                                          3
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


                                           4
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)


                                          5
(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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