ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

R. STAN BAKER, 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, Case 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

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 F. App'x 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). However, a transfer may not be authorized in certain instances, as set forth in 28 U.S.C. § 2244(b). This Section provides:

28 U.S.C. § 2244(b)(emphases added). A dismissal with prejudice of a prior petition makes any subsequent petition second or successive. Guenther, 173 F.3d at 1329.

Construing Slaughter's arguments liberally, he argues that the Northern District of Georgia did not address the merits of his prior Section 2254 Petition but instead dismissed his Petition without prejudice so that he can exhaust his administrative remedies. (Doc. 11, p. 2.) However, the record of Slaughter's prior proceedings belies this contention.1 Contrary to Slaughter's representations, in his prior Section 2254 action, on January 25, 2001, Magistrate Judge Linda Walker issued a Report and Recommendation addressing the merits of each of Petitioner's following claims:

R&R, Slaughter v. Smith, 1:00-cv-1335 (Jan. 25, 2001), ECF No. 7, pp. 2-3. Magistrate Judge Walker discussed each of these claims at length, found that each claim did not state a claim for relief on the merits, and recommended that the court deny Slaughter's Section 2254 Petition. Id. at pp. 5-11. On March 29, 2001, District Judge Beverly Martin adopted Judge Walker's Report and Recommendation over Slaughter's objections. Order, Slaughter v. Smith, 1:00-cv-1335 (Mar. 29, 2001), ECF No. 9. Judge Martin addressed Slaughter's objections, which clearly went to the merits of his claims, and denied his Petition. Id.

Slaughter now seeks to bring essentially the exact same claims that the Northern District of Georgia already rejected. (Doc. 1-1, pp. 2-3.) Pursuant to 28 U.S.C. § 2244(b)(1), these claims which are now "presented in a second or successive habeas corpus application . . . shall be dismissed." Moreover, even if Slaughter raised any additional claims that were not addressed by the Northern District of Georgia, he has failed to meet any of the exceptions set forth in 28 U.S.C. § 2244(b)(2), and he has not received an order from the Eleventh Circuit Court of Appeals authorizing this Court to consider the application as required by 28 U.S.C. § 2244(b)(3). Thus, this Court lacks jurisdiction to hear his Petition.

To the extent that Slaughter was to argue that his Petition is brought pursuant to Section 2241 and, therefore, not subject to the restrictions of Section 2254 (including the restriction on second or successive petitions) because he is challenging the execution of his sentence and not its validity, that argument must fail. Slaughter is not challenging the execution of his sentence (i.e., the manner in which his sentence is being carried out); rather, he is challenging the very fact of his confinement, claiming that he is in custody in violation of the Constitution. See 28 U.S.C. § 2254(a). Moreover, Slaughter is "in custody pursuant to the judgment of a State court." Id. Thus, his Petition is subject to both Section 2241 and Section 2254 with these provisions' attendant restrictions. Thomas v. Crosby, 371 F.3d 782, 787-88 (11th Cir. 2004) (state prisoner's habeas petition, filed on the Section 2241 form and which challenged the state parole commission's setting of prisoner's presumptive parole release date, was properly brought under Section 2241 but was subject to the rules and restrictions of Section 2254 because the prisoner was in custody pursuant to the judgment of a state court); Medberry v. Crosby, 351 F.3d 1049, 1054, 1062 (11th Cir. 2003) (state prisoner's habeas petition, which challenged prison disciplinary actions, was subject to both Section 2241 and Section 2254 because the prisoner was in custody pursuant to the judgment of a state court). Slaughter "cannot evade the procedural requirements of Section 2254 by filing something purporting to be a Section 2241 petition." Thomas, 371 F.3d at 787.

For all of these reasons, the Court should DISMISS Slaughter's Petition for lack of jurisdiction and as a procedurally barred second or successive 2254 Petition.

III. Dismissal on the Merits

Even assuming Slaughter' Petition were authorized procedurally, it is meritless substantively. Again, Slaughter raises the same arguments in the instant Petition that Judge Martin and Judge Walker already rejected when dismissing his prior petition. The undersigned fully concurs with the analysis in Judge Walker's Report and Recommendation and Judge Martin's Order. The Court need not restate that analysis at length in dismissing the instant Petition and need only adopt that analysis in this case. Accordingly, it plainly appears from the petition and any attached exhibits that Slaughter is not entitled to relief in this Court. Thus, should the Court reach the merits of Slaughter's Petition, for the reasons already stated by the Northern District of Georgia, the Court should DENY his Petition.

IV. Denial of Leave to Appeal in Forma Pauperis and Certificate of Appealability

The Court should also deny Slaughter leave to appeal in forma pauperis, and he should be denied a Certificate of Appealability. Though Slaughter has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court's order of dismissal.

Under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a certificate of appealability is issued. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, "the district court must issue or deny a certificate of appealability when it issues a final order adverse to the applicant." (emphasis added). A certificate of appealability may issue only if the applicant makes a substantial showing of a denial of a constitutional right. The decision to issue a certificate of appealability requires "an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Id. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000). "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." Miller-El, 537 U.S. at 336. Based on the above analysis of Slaughter' pleadings and applying the Certificate of Appealability standards set forth above, there are no discernable issues worthy of a certificate of appeal. Therefore, the Court should DENY the issuance of a Certificate of Appealability.

Additionally, an appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). This Court may certify that appeal of party proceeding in forma pauperis is not taken in good faith "before or after the notice of appeal is filed." Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Slaughter, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus not brought in good faith, if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009). As there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith, and the Court should DENY Slaughter in forma pauperis status on appeal.

CONCLUSION

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

The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address any contention raised in the pleading must also be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Am, 474 U.S. 140 (1985). A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not meeting the specificity requirement set out above will not be considered by a District Judge. A party may not appeal a Magistrate Judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of Court to serve a copy of this Report and Recommendation upon Slaughter.

SO ORDERED and REPORTED and RECOMMENDED,.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Rules 72.1 and 58.1. Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties.

Each party may file written objections, if any, to the Report and Recommendation within ten days of receipt of this Order. 28 U.S.C. § 636(h) (1). Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729 (1984).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED, this 25th day of January, 2001.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

Petitioner, an inmate at the Ware State Prison in Waycross, Georgia, has filed the instant pro se habeas corpus action seeking to challenge his October 12, 1994, convictions in the Superior Court of Douglas County for crimes related to a bank robbery and subsequent shootout with police.

The matter is now before this Court for consideration of the petition, [doc. 1], and the Respondent's response thereto, [doc. 6].

Factual Summary, Procedural History and Petitioner's Claims

Slaughter v. State, 525 S.E.2d 130, 132 (Ga. App. 1999).

Petitioner was convicted for four counts of armed robbery, criminal attempt to commit murder, aggravated assault on a police officer, kidnaping with bodily injury, kidnaping, possession of a firearm during commission of a crime, theft by receiving stolen property, giving a false name, and possession of a firearm by a convicted felon. [Resp. Exh. 1 at 3-12]. On October 12, 1994, after his convictions, Petitioner was sentenced as a recidivist to five life terms, three twenty-year terms, two five-year terms, and a twelve-month term — all of which are to run concurrently without a possibility for parole.

On November 2, 1994, Petitioner filed a motion for a new trial, and an amended motion for new trial on November 17, 1998. The trial court denied the motion, as amended on February 1, 1999. [Resp. Exh. 2 at 22]. Petitioner appealed his convictions to the Georgia Court of Appeals which court, on November 10, 1999, reversed a conviction for giving a false name but otherwise affirmed his convictions. Id. The Georgia Supreme Court denied certiorari on March 10, 2000.

Petitioner filed the instant federal petition on May 26, 2000, raising the following grounds for relief:

1. The trial court erred by not granting Petitioner's motion for a severance in connection with its permitting co-defendant Thomas's statement that he would kill a sheriff's deputy upon his release from jail.

2. The trial court erred by allowing a witness to testify outside his field of expertise.

3. The trial court erred in admitting Petitioner's statements made after he had invoked his Miranda rights.

4. The trial Court erred in admitting a video tape showing detectives telling Petitioner they wanted to talk with him and then abruptly stopping the tape before he has answered the detectives.

Discussion

Habeas Standard of Review

Pursuant to 28 U.S.C. § 2254, a federal court may issue a writ of habeas corpus in behalf of a person held in custody pursuant to a judgment of a state court if that person is held in violation of his rights under federal law. 28 U.S.C. § 2254(a). This power is limited, however. Pursuant to 28 U.S.C. § 2254(d), a federal court may not grant habeas relief for claims previously adjudicated on the merits by state courts unless the state court adjudication resulted in a decision that "was contrary to, or involved an unreasonable application of, clearly established Federal law" or "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).

In Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000), the Supreme Court analyzed how federal courts should apply 2254(d). First, the federal court evaluating a habeas petition under § 2254(d) (1) must determine the applicable "clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d) (1).

Next, the federal habeas court must ascertain whether the state court decision is "contrary to" that clearly established federal law by determining if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court reached a result different from the Supreme Court on a set of materially indistinguishable facts. Williams, 529 U.S. at ___, 120 S. Ct. at 1523. If the federal habeas court determines that the state court decision is not contrary to clearly established federal law, the federal court must then determine whether the state court decision was an "unreasonable application" of clearly established federal law by determining whether the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. This reasonableness determination is objective, and the federal court may not issue a writ of habeas corpus simply because it concludes in its independent judgment that the state court was erroneous or incorrect. Id. at ___. 120 S. Ct. at 1521-22. In other words, it matters not that the state court's application of clearly established federal law was incorrect, so long as that misapplication was objectively reasonable. Id.

Under § 2254(e), the state court's determinations of factual issues are presumed correct unless the petitioner presents clear and convincing evidence that the state court determinations were erroneous. Secondly, under § 2254(d), claims decided on the merits in a state court cannot be the basis for habeas relief unless the state court ruling fails to pass muster under a Williams analysis.

This Court has reviewed the pleadings and exhibits and finds that the record contains sufficient facts upon which the issues may be properly resolved. As Petitioner has made no showing as required by 28 U.S.C. § 2254(e)(2), no federal evidentiary hearing is permitted, and the case is now ready for disposition.

Petitioner was not Constitutionally Entitled to a Severance of his Trial.

As noted above, Petitioner first asserts that the trial court erred by not granting Petitioner's motion for a severance because evidence was admitted showing that, while Petitioner's codefendant Thomas was being held in jail pending trial, he threatened the life of one of the arresting officers.

According to the Eleventh Circuit:

Williams v. Singletary, 114 F.3d 177, 179 (11th Cir. 1997) cert. denied 522 U.S. 1057, 118 S.Ct. 712, 139 L. Ed. 2d 653 (1998).

Beyond his unsubstantiated assertions that (1) his codefendant's statement "resulted in Petitioner Slaughter's being associated (to the jury) with a person who had threatened the life of a witness," and (2) that prejudice was demonstrated by "the jury's difficulty in understanding the facts and law concerning holding such a statement only against the utterer," [doc. 1 at 7], Petitioner has failed to demonstrate how the trial court's refusal to grant his motion to sever prejudiced him.

Conversely, the Georgia Court of Appeals found "no showing of actual prejudice, no denial of due process, and no abuse of discretion by the trial court in denying the motion to sever." Slaughter, 525 S.E.2d at 132-33.

This Court is bound by the state court's foregoing determinations as Petitioner has failed to provide clear and convincing evidence that such determinations were erroneous. 28 U.S.C. § 2254(e).

Accordingly, as Petitioner is unable to demonstrate that he has been prejudiced by his trial court's failure to sever his trial from that of his codefendant, this Court finds this claim to be without merit, and Petitioner is not entitled to relief.

Petitioner's Claim Regarding a Witness's Testifying Outside His Field of Expertise does not State a Claim for Relief.

Petitioner claims that the trial court erroneously allowed a firearms expert called by the State to give expert testimony, over objection, on a topic outside the witness' expertise. The expert gave testimony as to his knowledge that gunpowder residue can be washed off a person's hand, and Petitioner asserts that this testimony was beyond the expert's scope of knowledge.

The scope of an expert witness's testimony is a question of state law, and Petitioner has failed to demonstrate how such a witness's testimony outside that witness's field of expertise would constitute a violation of Petitioner's federal rights.

"A state's interpretation of its own laws provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved." Carrizales v. Wainwright, 699 F.2d 1053, 1053-54 (11th Cir. 1983) (citations omitted). This Court reviews questions of state law in federal habeas proceedings only to determine whether the alleged errors were so critical or important to the outcome of the trial so as to render "the entire trial fundamentally unfair." Id. at 1054 (habeas claimant asserting violation of right under state law entitled to relief "only if it renders the entire trial fundamentally unfair"); see also Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989) (improperly admitted evidence "must be inflammatory or gruesome, and so critical that its introduction denied petitioner a fundamentally fair trial"). "[T]he established standard of fundamental fairness [when reviewing state evidentiary rulings] is that habeas relief will be granted only if the state trial error was `material in the sense of a crucial, critical, highly significant factor.'" Shaw v. Roney, 695 F.2d 528, 530 (11th Cir. 1983) (quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir. 1976)); see also Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991).

State law errors alone are not sufficient to warrant federal habeas relief. The admission of this evidence did not result in a fundamentally unfair trial, and the testimony itself was not inflammatory or gruesome. This Court thus finds that Petitioner's second ground does not state a claim for federal habeas corpus relief.

Petitioner Has Failed to Establish That He Was Interviewed After Asserting His Miranda Rights

According to Petitioner, after he asserted his Miranda right to remain silent, he was twice asked his name and other biographical information such as his address and social security number.

Petitioner claims that these questions constituted an impermissible interrogation.

The Fifth Amendment protects against unreasonable interrogations. However, a Fifth Amendment violation, standing by itself, does not entitle a criminal defendant to dismissal of the charges against him or to release. In the context of a criminal trial, the Fifth Amendment applies only to exclude statements from the trial. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966). In other words, in order to state a viable claim, Petitioner must not only establish that he was improperly interrogated in violation of his Fifth Amendment rights, but he must also demonstrate that evidence derived from the illegal interrogation was used to his detriment at his criminal trial. The only questions asked Petitioner after he had asserted his right to remain silent were routine booking questions, which are exempt from the requirements of Miranda. Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (plurality opinion) (establishing a "routine booking question" exception under which questions regarding name, address, height, weight and other general information do not constitute interrogation).

The Georgia Court of Appeals reached the same conclusion, holding that "[t]he trial court did not err in admitting evidence of his answers to the [routine booking] questions, including his giving of a false name." Slaughter, 525 S.E.2d at 133. This Court has no basis upon which to find that the state court's conclusion was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1), (2); see Williams, 529 U.S. at ___, 120 S. Ct. at 1523. This Court therefore finds chat Petitioner is not entitled to relief on his claim that his Miranda rights were violated.

Petitioner has Failed to Establish that His Rights Were Violated when the Trial Admitted a Video Tape of His Refusal to Respond to Questions.

In his final claim for relief, Petitioner asserts that his rights were violated when the trial court allowed the prosecution to show a video tape of Petitioner answering biographical questions such as his name and address. After Petitioner responded to these questions on the tape, the prosecution turned off the video.

The prosecution showed the tape (and the Court permitted it to be shown) in order to establish that Petitioner gave a false name to police in violation of Georgia law. The jury convicted Petitioner of this crime, but the Georgia Court of Appeals vacated the conviction on procedural grounds. Slaughter, 525 S.E.2d at 134.

Petitioner claims that showing the video and then abruptly turning it off prior to his giving further answers constituted an impermissible comment on his constitutional right to remain silent because it may have suggested to the jury that he had invoked this right.

This Court agrees with the Georgia Court of Appeals that there is no basis for Petitioner's conclusory assertion. Id. at 133. Petitioner has not established how the demonstration of the video tape to the jury prejudiced him. Accordingly, Petitioner is not entitled to relief on this claim.

Conclusion

For the foregoing reasons, this Court finds that Petitioner has failed to establish that he is entitled to habeas corpus relief. It is therefore RECOMMENDED that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED and that the instant action be DISMISSED.

The Clerk is DIRECTED to withdraw the reference to the Magistrate Judge.

IT IS SO RECOMMENDED, this 25th day of January, 2001.

ORDER

This matter is before the court on the Report and Recommendation of the Magistrate Judge [Doe. No. 7-1], and the objections of Frederick B. Slaughter ("Petitioner") to that Report and Recommendation [Doe. No. 8-1]. The Magistrate's Report and Recommendation recommended that the Petitioner's Petition for a Writ of Habeas Corpus be denied and that this action be dismissed.

PETITIONER'S OBJECTIONS

Petitioner's objections to the Magistrate's Report and Recommendation assert the same claims which appear to have been raised during his 1994 trial in Douglas County, Georgia, as well as on appeal to the Georgia Court of Appeals. See Slaughter v. State, 240 Ga.App. 758, 525 S.E.2d 130 (1999). Petitioner has raised the following objections: (1) that the trial court which presided over his conviction for bank robbery erred in failing to sever his trial from that of his co-defendant; (2) that the trial court erred in allowing an expert to testify outside of his field of expertise; (3) that the trial court erred by allowing statements made by him after he had been given his Miranda warnings; and (4) that the trial court erred in permitting the showing of a videotape of detectives questioning him about biographical information. Each of these issues was raised by the Petitioner in his Petition for Writ of Habeas Corpus, and was addressed by the Magistrate in her Report and Recommendation. This court must review Petitioner's objections on a de novo basis.

The United States Supreme Court has held that federal courts must evaluate § 2254 Petitions by determining the applicable and clearly established Federal Law, as determined by the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 379 (2000). Further, in reviewing a state court decision, this court must perform a two-step analysis. First, the court must review the state court decision to determine if that court applies a rule that contradicts the governing law set forth in Supreme Court case law. Second, the court must review the facts of the state case to determine whether they are "materially indistinguishable" from a decision of the Supreme Court and nevertheless arrives at a result which is different than that mandated by the Supreme Court precedent. Id. at 405 (concurring opinion).

The court will first consider the issue of the severance of the trial. In its decision upholding the trial court's denial of Petitioner's Motion to Sever his trial, the Georgia Court of Appeals held that the burden is on a defendant moving for a severance to demonstrate more than that a separate trial would "provide him with a better chance of acquittal." To the contrary, it held that a defendant must establish a clear showing of prejudice by the trial court's failure to sever his trial. Slaughter, 240 Ga. App. at 759. This ruling is in keeping with the rulings of the Supreme Court, which has held that absent a showing of "legally cognizable prejudice" they cannot find that a trial court abused its discretion by denying a defendant's motion to sever his trial. See Zafiro v. United States, 506 U.S. 534, 534 (1993). This court can find no deficiency in the ruling of the Georgia Court of Appeals as it compares to the precedent of the U.S. Supreme Court.

With regard to the testimony of the expert, the Georgia Court of Appeals considered that issue as well. Upon review of the record in the case, the Georgia Court of Appeals recited that, at trial, the prosecutor asked the expert witness a question with regard to gunpowder residue which was objected to by Petitioner's lawyer. The objection to the question was overruled, but the prosecutor never asked the question again, and the expert never answered it. On this basis, the Court of Appeals found no error as to this issue from the trial of the case. Because the record reflects that the expert gave no testimony on the subject about which Petitioner complains, there is no necessity for a review of applicable federal law on the subject of its admissibility.

The Georgia Court of Appeals also considered Petitioner's claim that the trial court erred by permitting evidence of his interrogation which was illegally conducted after he had invoked his right to counsel.1 The Georgia Court of Appeals found that the evidence admitted at trial was merely Petitioner's responses to questions about biographical information, and not questions designed to elicit incriminating responses. While this area of the law will no doubt receive more scholarly treatment elsewhere, the law of the land continues to be that the right against incrimination does not protect against compulsion to submit to "fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand to assume a stance, to walk, or to make a particular gesture." Pennsylvania v. Muniz, 496 U.S. 582, 591 (1990) (citations omitted). See also United States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991). This court agrees with the finding of the Magistrate Judge that the ruling of the Georgia Court of Appeals upholding the showing of the videotape, and any other evidence of Petitioner giving biographical information, is not contrary to U.S. Supreme Court precedent nor does it involve the unreasonable application of Supreme Court precedent.

SUMMARY

Upon careful review of the Report and Recommendation of the Magistrate Judge as well as the objections filed by Petitioner in this matter and the record in this proceeding, this court ACCEPTS the Report and Recommendation of the Magistrate [Doc. No. 7-1] filed January 25, 2001, and ADOPTS it as its ailing. Petitioner's Petitioner for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is hereby DENIED and this action is DISMISSED.

IT IS SO ORDERED, this 29th day of March, 2011.