United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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.)
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.
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.
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)).)
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.)
Denial of Motion to Appoint Counsel
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).
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.
Dismissal of Petition as Unauthorized Second or Successive
Section 2254 Petition
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).
“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). ...