DANNY SYLVESTER VICK, Petitioner-Appellant, v. JOHN R. WILLIAMS, in his official capacity as Superintendent of the Tillery Correctional Institution, North Carolina Department of Corrections, Respondent-Appellee.
No. 99-7406.
UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.
Argued: September 26, 2000. Decided: November 20, 2000.
233 F.3d 213
COUNSEL ARGUED: George Bullock Currin, Raleigh, North Carolina, for Appellant. Clarence Joe DelForge, III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney General, Diane A. Reeves, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Luttig wrote the opinion, in which Judge Wilkins and Senior Judge Hamilton joined.
OPINION
LUTTIG, Circuit Judge:
Petitioner-appellant Danny Sylvester Vick, a North Carolina inmate, appeals from the district court‘s denial of his application under
I.
After the Raleigh Police Department Drug and Vice Task Force (“RPD“) received information that Vick was involved in the illegal distribution of cocaine, RPD detectives observed Vick delivering cocaine to an informant on March 11, 1996, and again on May 8, 1996. Subsequently, the RPD obtained a search warrant and found 211 grams of cocaine hidden inside Vick‘s refrigerator. Vick was arrested and charged with multiple counts of trafficking cocaine. The cocaine concealed inside Vick‘s refrigerator did not have revenue stamps affixed to it to indicate that the North Carolina Controlled Substance Tax (“Drug Tax“) had been paid.
Vick gave written notice of his intent to appeal, inter alia, the trial court‘s denial of his motion to dismiss on double jeopardy grounds.2 The next day Vick entered guilty pleas to all seven counts of trafficking cocaine and was sentenced to two consecutive terms of a 35-42 month sentence. Subsequently, the North Carolina Court of Appeals and North Carolina Supreme Court denied discretionary review of Vick‘s double jeopardy claim without written opinion. Having exhausted his state court remedies, Vick timely filed the instant petition in federal district court for a writ of habeas corpus pursuant to
II.
Vick‘s petition for federal habeas relief is governed by the standards for federal habeas relief as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1214. The writ may issue only if Vick demonstrates that the state court‘s denial of his motion to dismiss on double jeopardy grounds “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as established by the Supreme Court of the United States.”
Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 1523 (2000), described the standard of review governing applications under
The alternative, “unreasonable application” of “clearly established Federal law,” basis for granting the writ lies, and a federal habeas court may grant the writ, “if 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.” Williams, 120 S. Ct. at 1523. See also Green, 143 F.3d at 870. Under
III.
Vick has steadfastly maintained that the assessment of the North Carolina Controlled Substance Tax and the attendant seizure of his property on May 8, 1996, constituted criminal punishment, so that his sentence of imprisonment for trafficking cocaine in a separate and subsequent criminal proceeding, based in part on the same drugs upon which the Drug Tax was assessed, constituted multiple punishment in violation of the Double Jeopardy clause of the Fifth Amendment. Specifically, Vick claims that the Supreme Court‘s decision in Kurth Ranch clearly establishes that the North Carolina Drug Tax is a criminal penalty, so that the state court‘s denial of his motion to dismiss on double jeopardy grounds is contrary to federal law as established by the Supreme Court. In Vick‘s view, Kurth Ranch establishes the broader legal principle that a person may not be subjected to both assessment of the drug tax and additional criminal punishment for the same offense in a separate proceeding by the same sovereign without violating the Double Jeopardy Clause‘s prohibition against multiple punishments. Appellant‘s Brief at 10.
In further support of his constitutional claim, Vick argues that this court is bound to find that Kurth Ranch is not materially distinguishable from the facts of this case because of our holding in Lynn v. West, 134 F.3d 582, 592 (4th Cir. 1998) -a civil case on direct appeal -that the North Carolina Drug Tax “contains no features that allow us to distinguish Kurth Ranch,” and includes “enough positive features that its nature is that of a criminal penalty, not a civil tax.” Id. Alternatively, Vick insists that Lynn requires us, at a minimum, to determine that the North Carolina trial court‘s decision was an unreasonable application of Kurth Ranch.
These claims, without exception, ultimately fail to meet the requirements for relief under
A.
In the first place, while it is true that Kurth Ranch constitutes “clearly established Federal law” as “determined by the Supreme Court,” we cannot say that the state court‘s decision that the North Carolina Drug Tax was not a criminal penalty was contrary to Kurth Ranch without doing violence either to the Supreme Court‘s definition of “contrary to” or to the holding of Kurth Ranch itself. A careful review of the Supreme Court‘s actual holding, coupled with recognition that issues reserved are neither “Federal law” as determined by the Supreme Court,” nor appropriate support for claims of material likeness to established Supreme Court precedent, makes it apparent that this is so.
Kurth Ranch involved a challenge to a Montana statute that, like the North Carolina Drug Tax, assesses a high rate of tax on controlled substances. Vick insists that Kurth Ranch stands for the proposition that a person may not be subjected to both assessment of a drug tax and additional criminal punishment in separate proceedings without violating the double jeopardy clause‘s prohibition against multiple punishments. Therefore, Vick concludes, the state court‘s denial of his motion to dismiss on double jeopardy grounds was contrary to Kurth Ranch. However, Kurth Ranch does not stand for the categorical proposition that Vick contends it does. Rather, in Kurth Ranch, the Court held only that a legislature‘s description of a statute as civil does not foreclose the possibility that it has a punitive character, and concluded that “a tax is not immune from double jeopardy analysis simply because it is a tax.” Id. at 778-79.
The Supreme Court then evaluated specific “unusual features” of the Montana Drug Tax consistent with a punitive character, concluding ultimately that the assessment of Montana‘s Dangerous Drug Tax (which in that case followed rather than preceded the criminal drug charges) constituted a “second punishment” for purposes of the Double Jeopardy Clause. 511 U.S. at 783-84. Simply put, Kurth Ranch does not stand for a general principle that all drug taxes are punishment -rather than a civil penalty -but holds instead that the “unusual features” of the Montana tax caused it to differ from an ordinary tax to the point it was a criminal penalty rather than civil assessment. Vick does not claim that the state court that denied his motion to dismiss held that a drug tax could never be a criminal penalty, or that Ballenger ignored or contradicted the relevance of the “unusual features” of the Montana Drug Tax which the Court in Kurth Ranch relied upon in determining that the Montana tax was punishment. And, in fact, Ballenger, which the trial court relied upon in adjudicating Vick‘s motion to dismiss, directly applied Kurth Ranch to the North Carolina Drug Tax. Ballenger thus recognized that a tax could be considered punishment but, following the multi-factor analysis set forth in Kurth Ranch, and grounded in its own construction of the North Carolina statute as compared with the Montana statute, determined that North Carolina‘s Drug Tax did not constitute criminal punishment. Consequently, we cannot say that the state court‘s denial of Vick‘s motion is directly opposed, or contrary to, Kurth Ranch under Williams or Green, because the state court did not apply a “rule that contradicts the governing law set forth in [Supreme Court precedent].” Id.
Vick‘s assertion that the state court‘s decision was “contrary to” Kurth Ranch because the facts are “materially indistinguishable” is similarly without merit. While the North Carolina Drug Tax at issue in this case is itself materially distinguishable from the Montana Drug Tax at issue in Kurth Ranch on the basis of statutory language, see infra at 9-10, we need not reach that issue to determine conclusively that the North Carolina trial court‘s denial of Vick‘s motion to dismiss was not “contrary to” Kurth Ranch because the Supreme Court has never even decided the question whether a criminal proceeding would be barred by the prior assessment of a tax deemed to constitute criminal punishment. Rather, having determined that imposition of the Montana Drug Tax was barred by a prior criminal prosecution, the Kurth Ranch majority specifically noted that “the statute here does not raise the question whether an ostensibly civil proceeding that is designed to inflict punishment may bar a subsequent proceeding that is admittedly criminal in character.” 511 U.S. at 781-82 n.21. Accordingly, even assuming arguendo that the North Carolina Drug Tax in fact constitutes a “civil proceeding that is designed to inflict punishment,” the applicable “clearly established Federal law [] as determined by the Supreme Court” specifically reserves the question of whether that punishment would bar a subsequent criminal proceeding. To assume that an issue expressly reserved by the Supreme Court represents “clearly established” law as to that issue,
[w]ould transform habeas review under amended 2254(d)(1) into a one-way ratchet whereby a state court must resolve all open questions of federal law in the defendant‘s favor in order to prevent the conviction or sentence from being vacated on habeas review.
Green, 143 F.3d at 880. This we decline to do.
We are similarly constrained from relying upon Lynn as the “clearly established Federal law” Vick seeks. Vick contends that the state court‘s decision in this case was contrary to Kurth Ranch because “[this] Honorable Court has already answered the pivotal question of whether the North Carolina Substance Tax is ‘indistinguishable in any material way’ from the drug tax in Kurth Ranch.” Appellant‘s Brief at 31. Consequently, Vick contends, there is “absolutely no difference between the analysis of the North Carolina tax in Lynn v. West and the analysis required in [this] case.” Id. at 33.
While it is true that Lynn interpreted the North Carolina Drug Tax in the context of a direct appeal of a section 1983 case, and concluded that “the Drug Tax contains no features that allow us to distinguish Kurth Ranch,” Lynn, 134 F.3d at 592, Vick‘s reliance on Lynn for purposes of habeas review is misplaced. Lynn is not “clearly established Federal law, as determined by the Supreme Court.”
In fact, Lynn illustrates the circumstance clearly contemplated and rejected for purposes of habeas review by the Supreme Court in Williams. That a “state-court decision [actually is] contrary to the federal court‘s conception of how [Kurth Ranch] ought to be applied in that particular case,” does not render the state court decision “contrary to” federal law as established by the Supreme Court. Williams, 120 S. Ct. at 1520. That this is true is particularly clear given the Court‘s explicit rejection of Justice Stevens’ much more expansive reading of
On these facts, we do not find that the North Carolina trial court‘s decision is “opposite in character” or “mutually opposed” to the actual holding in Kurth Ranch. Williams, 120 S. Ct. at 1519. Moreover, the “clearly established Federal law” set forth in Kurth Ranch expressly reserved the question of whether double jeopardy would apply to the facts extant in this case, and we thus cannot say that the cases are “materially indistinguishable.” We are, accordingly, convinced that the state court did not act “contrary to” “clearly established Federal law” “as determined by the Supreme Court,” irrespective of the Lynn court‘s contrary interpretation of Kurth Ranch. See also French v. Green, 143 F.3d at 882 (counterfactual to believe that
B.
Not only is it apparent that the “Federal law” Vick claims was violated has not been established by the Supreme Court, let alone clearly established, let alone subject to a “contrary” application by the North Carolina courts in this case, Vick‘s claim to habeas relief also fails the alternative, “unreasonable application” of “Federal law” basis for granting the writ. Vick, again, places great weight on Lynn for his tertiary claim that the state court‘s decision, at a minimum, implicates the “unreasonable application” clause of
And, ultimately, Vick cannot show the required “unreasonable application of” “Federal law” as “established by the Supreme court” because, as carefully determined by the North Carolina Court of Appeals in Ballenger, and confirmed by our own independent review of the statutes and applicable law, the Drug Tax at issue in Kurth Ranch differs from the North Carolina Drug Tax in at least two significant respects.5 There is no doubt that the holding in Kurth Ranch rested on a statute-based multi-factor inquiry into the Montana Drug Tax itself, and that the Supreme Court focused on “unusual features [which] set the Montana statute apart from most taxes,” and which were dispositive.6 Id. at 783.
First, the Court found distinctive the fact that the “so-called tax is conditioned on the commission of a crime,” and exacted “only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place.” Id. at 781. Second, the Montana Drug Tax was a “tax on the possession and storage of dangerous drugs [but] is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed [after arrest, when the drugs have been confiscated and destroyed].” Id. at 783. In contrast, the North Carolina Drug Tax
contains neither of the “unusual features” upon which the Supreme Court relied in Kurth Ranch . . . [the North Carolina Drug Tax] is not predicated upon whether the taxpayer in possession of the controlled substance has been arrested or charged with criminal conduct, nor is it assessed on property that has necessarily been confiscated or destroyed.
Ballenger, 472 S.E.2d at 574.7
In our view, the trial court‘s reliance on Ballenger‘s interpretation of Kurth Ranch to determine that the North Carolina Drug Tax, unlike the Montana Drug Tax, was not criminal punishment is not objectively unreasonable; we cannot say that the failure to find North Carolina‘s tax a criminal punishment is an unreasonable interpretation of Kurth Ranch, when that tax lacks the very factors relied upon by the Supreme Court to hold the Montana tax a criminal penalty.
And, in fact, it is the specific statutory features of the North Carolina Drug Tax that make it objectively reasonable to distinguish the state‘s tax from the Montana tax at issue in Kurth Ranch. Id. at 574-75. Most importantly, and unlike the Montana Drug Tax (for which the condition precedent was arguably arrest), the North Carolina Drug Tax is due and payable “within 48 hours after the dealer acquires actual or constructive possession of a non-tax-paid controlled substance.”
While it is true that the Supreme Court is not entirely clear in Kurth Ranch as to whether it was the tying of the tax to commission of the crime (“so-called tax commissioned on the commission of a crime“), or whether it was the conflation of arrest and tax liability (“tax assessment not only hinges on the commission of a crime, it is also exacted only after the taxpayer has been arrested“), which caused the Court to deem the tax a criminal penalty, it is not objectively unreasonable to read the holding in Kurth Ranch to turn upon the fact of arrest as a subset of criminal activity, rather than upon the fact of arrest as a synonym for “commission of a crime.” This interpretation appears all the more reasonable given that the fact that conduct for which civil sanctions are imposed may also be criminal is itself “insufficient to render the [penalties] criminally punitive.” Hudson v. United States, 522 U.S. 93, 105 (1997).
Moreover, while it is clear that only illegal possession of controlled substances is subject to the Drug Tax,
Additionally, in Kurth Ranch, the Court found telling the fact that the “property tax” was assessed on “property” which was never in the taxpayer‘s possession at the time of the assessment because the drugs had been seized and destroyed. Under the Montana statute, the “taxpayer ha[d] no obligation to file a return or to pay any tax unless and until he [was] arrested.” Kurth Ranch, 511 U.S. at 771. As noted above, the North Carolina Drug Tax is payable and due upon possession, and there is statutory provision for payment of the excise tax while the drugs are in the possession of the taxpayer, without any relationship to a criminal proceeding.
[t]he tax obligation is not contingent upon the dealer‘s arrest which, in the normal course of events would result in the confiscation and destruction of the substance. The dealer can satisfy his tax obligation by paying the tax upon acquisition of the substance and by then permanently affixing thereto stamps issued by the Secretary of Revenue to indicate payment. . . . Because the North Carolina tax becomes payable within forty-eight hours after the taxpayer comes into possession of the substance, it is not a tax on confiscated goods, as was the case with the Montana tax.
Ballenger, 472 S.E.2d. at 575. Furthermore, an anonymous reporting function by mail or in person is provided to obtain the tax stamps by
Despite the statutory differences between the North Carolina and Montana Drug Taxes, and North Carolina‘s conclusion that its Drug Tax was distinguishable from the Montana Drug Tax based on the absence of the two “unusual” indicia of criminal punishment deemed dispositive by the Supreme Court, Vick nonetheless claims that the state court decision was an “unreasonable application” of Kurth Ranch. Vick attacks the bases upon which the state court distinguished the Montana Drug Tax, and claims that the North Carolina Drug Tax was, as applied, enforced and assessed only against those who, like the appellants in Kurth Ranch, actually were arrested and had their drugs seized. J.A. 17. However, as recently affirmed by the Supreme Court in Hudson v. United States, when determining whether a statutory scheme is so punitive in nature that it constitutes punishment for purposes of double jeopardy, a court reviews the “statute on its face,” and requires the clearest proof that the civil remedy is, in fact, a criminal penalty in order to override legislative intent. Id. at 100. Given Hudson‘s emphasis on the primacy of these factors, the Ballenger court‘s focus upon the provisions and purpose of the North Carolina drug statute as written, and its finding, based on a construction of the statute‘s language, that it was distinguishable from the Montana Drug Tax, and not a criminal penalty, is reasonable. We cannot say, on these facts, that the state trial court erred in denying Vick‘s motion to dismiss on double jeopardy grounds in reliance on Ballenger‘s conclusion that the Drug Tax is not a criminal penalty.
Finally, although habeas relief under the “unreasonable application” provision of
CONCLUSION
The judgment of the district court dismissing Vick‘s petition for habeas corpus relief pursuant to
AFFIRMED