Slaughter v. Gramiak

Filing 21

ORDER ADOPTING 13 Report and Recommendations of the Magistrate Judge as the opinion of the Court. The Court GRANTS Respondent's 9 Motion to Dismiss, DISMISSES Slaughter's 2254 Petition 1 , and DIRECTS the Clerk to CLOSE this case. The Court also DENIES Slaughter a Certificate of Appealability and DENIES Slaughter 20 Motion for Leave to Appeal in forma pauperis. Signed by Judge Lisa G. Wood on 9/28/2018. (ca)

^ntteli States: Bisftritt Court

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^otttliern IBiOtrtct ot(fleorsta
Wsij^ctosii Bibtsiton

FREDERICK BERNARD SLAUGHTER,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-90

V.

TOM GRAMIAK,

Respondent.

ORDER

The Court has conducted an independent and de novo review
of the entire record and concurs with the Magistrate Judge's
Report and Recommendation, dkt. no. 13.

Petitioner Frederick

Slaughter ('"Slaughter") filed Objections to the Report and
Recommendation, dkt. no. 17, but failed to address the

Magistrate Judge's conclusions, namely, that Slaughter's 28
U.S.C. § 2254 Petition is an unauthorized second or successive

habeas petition under 28 U.S.C. § 2244, and, even if his

Petition were not barred under Section 2244, Slaughter is not
entitled to his requested relief, as the District Court for the
Northern District of Georgia determined.

Dkt. No. 13.

Rather,

Slaughter merely reiterates the assertions he made in his

A0 72A

(Rev. 8/82)

original Petition, which the Magistrate Judge correctly
rejected.^

In addition. Slaughter filed an interlocutory appeal to the
Eleventh Circuit Court of Appeals, dkt. no. 14, prior to the

filing of his Objections and another interlocutory appeal a mere
nine (9) days after he filed his Objections to the Report and

Recommendation, dkt. no. 18.

Slaughter's interlocutory appeals

are from a Report and Recommendation, which is not a final order

subject to appeal.

Slaughter's attempt to file interlocutory

appeals of the Report and Recommendation did not cause this
Court to lose jurisdiction of the case, nor did the Eleventh

Circuit ''acquire jurisdiction."

^

Holloman v. McDonald, No.

To the extent Slaughter objects to the Magistrate Judge's denial of

his motion for appointment of counsel, the Court construes any such
objection as an appeal of the Magistrate Judge's Order. "Federal
courts sometimes will ignore the legal label that a pro se litigant
attaches to a motion and recharacterize the motion in order to place
it within a different legal category." Retic v. United States, 215 F.
App'x 962, 964 {11th Cir. 2007) (quoting Castro v. United States, 540
U.S. 375, 381 (2003)). Federal courts "may do so in order to avoid an

unnecessary dismissal, to avoid inappropriately stringent application
of formal labeling requirements, or to create a better correspondence
between the substance of a pro se motion's claim and its underlying
legal basis." Id. (quoting Castro, 540 U.S. at 381-82). Under
Federal Rule of Civil Procedure 72(a), "[a] party may serve and file

objections to [a magistrate judge's] order within 14 days after being
served with a copy. . . . The district judge in the case must consider
timely objections and modify or set aside any part of the order that
is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a);
see also 28 U.S.C. § 636(b)(1)(A) (reciting same "clearly erroneous or
contrary to law" standard).

Slaughter fails to establish the

Magistrate Judge's Order is clearly erroneous or contrary to law.
Thus, the Court DENIES Slaughter's appeal of the Magistrate Judge's
Order denying Slaughter's motion for the appointment of counsel.

5:05CV22-RH/WCS, 2005 WL 941137, at *3 (N.D. Fla. March 21,
2005).

Consequently, the Court addresses Slaughter's

Objections, which are without merit.

The Court OVERRULES Slaughter's Objections and ADOPTS the
Magistrate Judge's Report and Recommendation as the opinion of
the Court.

The Court GRANTS Respondent's Motion to Dismiss,

dkt. no. 9, DISMISSES Slaughter's Section 2254 Petition, dkt.
no. 1, and DIRECTS the Clerk of Court to CLOSE this case and

enter the appropriate judgment of dismissal.

The Court also

DENIES Slaughter a Certificate of Appealability and DENIES
Slaughter in forma pauperis status on appeal, as well as his
Motion for Leave to Appeal in Forma Pauperis filed in this
Court, dkt. no. 20.
SO ORDERED, this

2018.

HON

LI^ GODBEY WOOD, JUDGE

UNIT ED/STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA