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Slaughter v. Gramiak

United States District Court, S.D. Georgia, Waycross Division

August 1, 2018

FREDERICK BERNARD SLAUGHTER, Petitioner,
v.
THOMAS GRAMIAK, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Frederick Bernard Slaughter (“Slaughter”), who is currently incarcerated at Ware State Prison in Waycross, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 contesting the execution of his sentence on convictions obtained in Douglas County, Georgia, Superior Court. (Doc. 1.) Slaughter also filed a Motion to Appoint Counsel. (Doc. 7.) Respondent Thomas Gramiak, the Warden of Ware State Prison, has moved to dismiss Slaughter's Petition. (Doc. 9.)

         The Court DENIES Slaughter's Motion to Appoint Counsel. (Doc. 7.) Additionally, for the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion to Dismiss, (doc. 9), and DISMISS Slaughter's Petition, (doc. 1). I also RECOMMEND that the Court DENY Slaughter a Certificate of Appealability, DENY him in forma pauperis status on appeal, and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case.

         BACKGROUND

         In his Petition, Slaughter challenges his 1994 Douglas County convictions for armed robbery, criminal attempt to commit murder, aggravated assault, kidnapping, and possession of a firearm by convicted felon. (Doc. 1.) He argues that the Superior Court erred in not granting his motion for severance of his trial from his codefendant and in allowing a statement of his codefendant to be admitted. (Doc. 1-1, pp. 6-9.) Slaughter also contends that the trial court erred by allowing an agent of the Bureau of Alcohol, Tobacco, and Firearms to testify outside of the agent's area of expertise. (Id. at pp. 9-12.) Additionally, he alleges that the Superior Court improperly admitted a statement that Slaughter had made after invoking his Miranda rights. (Id. at pp. 13-19.) Further, Slaughter contends that the court “subrogated [his] right to remain silent” by only partially admitting a video tape of detectives telling Slaughter that they wanted to interview him. (Id. at pp. 20-23.) Finally, Slaughter raises a number of arguments contending that his trial counsel was ineffective. (Id. at pp. 25-32.)

         Respondent requests that the Court dismiss Slaughter's petition for lack of jurisdiction. (Doc. 9.) Specifically, Respondent points out that Slaughter already unsuccessfully challenged his convictions through a Section 2254 Petition in the Northern District of Georgia. (Id. (citing Slaughter v. Smith, No. 1:00-cv-1335 (N.D.Ga. Mar. 2001).) Respondent contends that Slaughter cannot bring this successive petition without first seeking permission from the United States Court of Appeals for the Eleventh Circuit. (Id. (citing 28 U.S.C. § 2244(b)(3)).)

         In Response to the Motion to Dismiss, Slaughter contends that his prior Section 2254 Petition “was suppose [sic] to be scratch [sic] from the recorder [sic] so I can go step-by-step by doing my state habeas corpus and then my federal habeas corpus.” (Doc. 11, p. 2.) He argues that because his state habeas corpus petition was denied in November of 2016, he timely filed this federal habeas corpus petition. (Id.)

         DISCUSSION

         I. Denial of Motion to Appoint Counsel

         Petitioner has filed a Motion for Appointment of Counsel to assist him with this case. (Doc. 7.) There is no automatic constitutional right to counsel in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Webb, 565 F.3d 789, 794 (11th Cir. 2009) (citing Barbour v. Haley, 471 F.3d 1222, 1227 (11th Cir. 2006)); Hooks v. Wainwright, 775 F.2d 1433, 1438 (11th Cir. 1985); see also Barbour, 471 F.3d at 1227-32 (even defendants sentenced to death do not enjoy a constitutional right to post-conviction counsel). Under 18 U.S.C. § 3006A(a)(2)(B), the Court may appoint counsel for an indigent litigant seeking relief under 28 U.S.C. § 2254, but such requests are discretionary when “due process or the ‘interests of justice'” so require. Hooks, 775 F.2d at 1438; Norris v. Wainwright, 588 F.2d 130, 133 (5th Cir. 1979); see also 28 U.S.C. § 2254(h) and Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts (mandating appointment of counsel pursuant to 18 U.S.C. § 3006A when an evidentiary hearing is warranted). Moreover, appointment of counsel is “a privilege that is justified only by exceptional circumstances.” McCall v. Cook, 495 Fed.Appx. 29, 31 (11th Cir. 2012) (per curiam).

         The Court does not find any exceptional circumstances justifying the appointment of counsel in this case. It does not appear that the interests of due process or justice require that Petitioner be afforded counsel, and it does not appear that an evidentiary hearing will be required. Consequently, the Court DENIES Petitioner's Motion for Appointment of Counsel.

         II. Dismissal of Petition as Unauthorized Second or Successive Section 2254 Petition

         Before a second or successive Section 2254 Petition is filed in a district court, the applicant “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A) (emphasis added); see also Rule 9, Rules Governing Section 2254 Cases (2011). A district court lacks jurisdiction to consider a “second or successive” habeas corpus petition that was not previously authorized by an appellate court. Burton v. Stewart, 549 U.S. 147 (2007) (holding that district court lacked jurisdiction to entertain second habeas petition since prisoner did not obtain order authorizing him to file the petition); Fugate v. Dep't of Corr., 301 F.3d 1287, 1288 (11th Cir. 2002) (same).

         This “gatekeeping” requirement transfers a second or successive application from the district court to the court of appeals, pursuant to 28 U.S.C. §1631, as a motion for authorization to proceed in district court. See Felker v. Turpin, 518 U.S. 651, 664 (1996). “If applicable, Section 1631 authorizes a transfer that is in the interest of justice.” Guenther v. Holt, 173 F.3d 1328, 1330-31 (11th Cir. 1999). ...


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