     10-461-pr
     Slavin v. Artus


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 14th day of March, two thousand eleven.
 4
 5   PRESENT:          JOHN M. WALKER, JR.,
 6                     BARRINGTON D. PARKER,
 7                     DEBRA ANN LIVINGSTON,
 8                                     Circuit Judges.
 9
10
11   CHRISTOPHER SLAVIN,
12             Petitioner-Appellant,
13
14             -v.-                                      No. 10-461-pr
15
16   DALE ARTUS, the warden of the Clinton Correctional Facility located in Dannamora, New
17   York,
18             Respondent-Appellee.
19
20
21                                 ROBERT J. DEL COL, Smithtown, New York, for Petitioner-
22                                 Appellant.
23
24                                 MICHAEL BLAKEY, Assistant District Attorney, for Thomas J.
25                                 Spota, District Attorney of Suffolk Country, Riverhead, New York,
26                                 for Respondent-Appellee.
27
28
29             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

30   DECREED that the judgment of the district court be AFFIRMED.
 1          Petitioner-Appellant Christopher Slavin appeals from a judgment of the United States

 2   District Court for the Eastern District of New York (Seybert, J.) denying his petition for a writ of

 3   habeas corpus pursuant to 28 U.S.C. § 2254. Slavin contends that he is entitled to habeas corpus

 4   relief on the ground that the prosecution’s use of his white supremacist tattoos to establish motive

 5   and intent violated his Fifth Amendment right against self-incrimination. In sum, Slavin argues that

 6   the prosecution’s use of the tattoos was testimonial in nature, and he was, accordingly, compelled

 7   to be a witness against himself in violation of the Fifth Amendment. We assume the parties’

 8   familiarity with the underlying facts and procedural history of the case.

 9          We review a district court’s denial of a petition for habeas corpus de novo, and its factual

10   findings for clear error. Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007). The habeas petitioner

11   “bears the burden of proving by a preponderance of the evidence that his constitutional rights have

12   been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Because Slavin’s challenge to

13   the state conviction was adjudicated on the merits in the state courts, we apply the “deferential

14   standard of review” established by the Antiterrorism and Effective Death Penalty Act of 1996

15   (“AEDPA”), 28 U.S.C. § 2254(d). Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009). Under

16   AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner based on a claim that

17   was adjudicated on its merits in state court only if the state court’s decision was “contrary to, or

18   involved an unreasonable application of, clearly established Federal law, as determined by the

19   Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see Dolphy, 552 F.3d at 238.

20          The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall

21   be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The

22   right against self-incrimination contained in the Fifth Amendment, however, bars only “compelled


                                                      2
 1   incriminating communications . . . that are ‘testimonial’ in character.” United States v. Hubbell, 530

 2   U.S. 27, 34 (2000). “In other words, to qualify for Fifth Amendment protection, a communication

 3   must be (1) testimonial, (2) incriminating, and (3) compelled.” United States v. Greer, — F.3d —,

 4   2011 WL 338050, at *2 (2d Cir. Feb. 4, 2011). While the Fifth Amendment generally does not

 5   prohibit the compelled exhibition of physical characteristics by a criminal defendant where such

 6   exhibition is not testimonial in nature, see, e.g., Hubbell, 530 U.S. at 35 (providing examples), the

 7   state here “relied on the tattoo[s] not as an ‘identifying physical characteristic’ but for the ‘content

 8   of what [was] written.’” Greer, 2011 WL 338050, at *3 (quoting Gilbert v. California, 388 U.S.

 9   263, 266-67 (1967)). Even assuming that the prosecution’s use of the tattoo evidence was

10   testimonial in nature, however, “[t]he tattoo[s] . . . w[ere] not compelled by the government.” Id.

11   at *4. We noted in Greer that even if officers were able to read the tattoos at issue “only by

12   applying physical force[,] . . . it would . . . not amount to compulsion for Fifth Amendment

13   purposes.” Id. To the contrary, “[t]he voluntary tattooing of an incriminating word” to a

14   defendant’s body plainly is “not the product of government compulsion.” Id. “In the absence of

15   compulsion, [Slavin’s] Fifth Amendment claim fails.” Id. Accordingly, Slavin has fallen far short

16   of demonstrating that the state court’s decision was “contrary to, or involved an unreasonable

17   application of, clearly established Federal law, as determined by the Supreme Court of the United

18   States,” 28 U.S.C. § 2254(d)(1), as required to merit habeas relief.

19          We have considered all of Petitioner’s remaining arguments and find them to be without

20   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

21
22                                                          FOR THE COURT:
23                                                          Catherine O’Hagan Wolfe, Clerk
24




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