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Case No. 4:10cv383-RH/EMT

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASEY J. STEURER,

Petitioner,

v. CASE NO. 4:10cv383-RH/EMT

MICHAEL D. CREWS,

Respondent.

_________________________________/

ORDER DENYING THE PETITION AND

DENYING A CERTIFICATE OF APPEALABILITY

By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Casey J. 

Steurer challenges his state-court conviction. The petition is before the court on 

the magistrate judge’s report and recommendation, ECF No. 31. No objections 

have been filed. The report and recommendation is correct and is adopted as the 

court’s opinion.

One matter deserves mention. In Mr. Steurer’s trial, the prosecutor called an 

officer whose entire testimony was that he arrested Mr. Steurer, read Mr. Steurer 

his rights under Miranda v. Arizona, 384 U.S. 436 (1966)—explicitly including the 

right to remain silent—and then did not question Mr. Steurer. 
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The prosecutor said this was not an improper comment on silence. But at 

that point in the trial, the jury could reasonably have drawn no inference other than 

the correct one: promptly after being advised of the right to remain silent, Mr. 

Steurer invoked the right. If there was nothing more to it, calling the witness 

would have been improper.

But there was more to it. A later witness—another officer—testified that at 

a later point Mr. Steurer volunteered incriminating statements. A juror could 

conclude that the statements were more credible, because they were made after 

Miranda warnings, than the statements would have been in the absence of the 

warnings. Evidence that makes a fact of consequence more likely than it would 

have been in the absence of the evidence is relevant. So proving the Miranda

warnings, without explicitly mentioning Mr. Steurer’s invocation of his right to 

remain silent, was proper.

Moreover, Mr. Steurer addresses this issue in this court only as a claim of 

ineffective assistance of counsel. Mr. Steurer’s attorney was not ineffective. He 

objected to the first officer’s testimony. The trial judge overruled the objection

and made clear that the judge did not believe it was an improper comment on 

silence to call the officer to testify that he gave Miranda warnings but did not 

question Mr. Steurer. A judge’s adverse ruling does not, standing alone, indicate 

that an attorney was ineffective. On Mr. Steurer’s state-court collateral attack on 
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Case No. 4:10cv383-RH/EMT

the conviction, the court rejected this claim for precisely this reason. The ruling 

was correct.

And finally, even if the issue had been raised as a challenge to the 

prosecutor’s conduct or to the trial court’s ruling, and even if the conduct could be 

deemed improper or the ruling could be deemed incorrect, there is no reason to 

believe that this brief and isolated incident made any difference. So even if Mr. 

Steurer had exhausted the issue and was right on the merits, he would not be 

entitled to relief. 

Rule 11 of the Rules Governing § 2254 Cases requires a district court to 

“issue or deny a certificate of appealability when it enters a final order adverse to 

the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may 

issue “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); 

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 

893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting 

out the standards applicable to a § 2254 petition on the merits). As the Court said 

in Slack:

 To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues 
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Case No. 4:10cv383-RH/EMT

presented were “ ‘adequate to deserve encouragement to proceed 

further.’ ” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Id. at 484. 

The petitioner has not made the required showing. This order thus denies a 

certificate of appealability. Because the petitioner has not obtained—and is not 

entitled to—a certificate of appealability, any appeal will not be taken in good 

faith. I certify under Federal Rule of Appellate Procedure 24(a) that an appeal will 

not be taken in good faith and that the petitioner is not otherwise entitled to 

proceed on appeal in forma pauperis. But for the requirement to obtain a 

certificate of appealability, leave to proceed on appeal in forma pauperis would be 

granted. 

For these reasons,

IT IS ORDERED: 

1. The report and recommendation is ACCEPTED.

2. The clerk must enter judgment stating, “The petition is DENIED with 

prejudice.” 
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Case No. 4:10cv383-RH/EMT

3. A certificate of appealability is DENIED.

4. The clerk must close the file.

SO ORDERED on August 11, 2013.

s/Robert L. Hinkle

United States District Judge