Revised January 11, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20032 _____________________
MATTHEW TODD LEDFORD
Petitioner-Appellant
v.
TOMMY THOMAS, Sheriff, Harris County; ET AL Respondents JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent-Appellee _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
December 11, 2001
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
On a petition for habeas relief asserting that the
conviction by the State of Texas of petitioner Matthew Todd
Ledford for possession of a controlled substance violated the
Double Jeopardy Clause, where the State previously had assessed a
substantial tax against petitioner on the controlled substance
and petitioner had made a partial payment of that tax, the district court denied relief. Ledford v. Thomas, 144 F. Supp. 2d
709 (S.D. Tex. 2000). We AFFIRM. Because we can add little to
the district court’s excellent opinion, we write briefly.
I. HABEAS PETITION
On June 23, 1993, Ledford was arrested for the felony
offense of possession of at least 2,000 grams of cocaine. On
June 24, 1993, the Houston Police Department filed a marijuana
and controlled substance report with the Texas Comptroller of
Public Accounts. The report requested a tax assessment against
Ledford in the amount of $400,000. On June 29, 1993, the
Comptroller assessed $420,000 in taxes and penalties against
Ledford under the Texas Controlled Substances Tax Act, TEX. TAX
CODE §§ 159.001-159.206, which imposes a tax on the illegal
possession, purchase, acquisition, importation, manufacture, or
production of a controlled substance. On July 8, 1993, the
Comptroller filed a Texas State Tax Lien in Harris County.
Ledford paid $100 of the $420,000 assessment to the Comptroller
before July 15, 1993.
On July 15, 1993, the State of Texas indicted Ledford for
possession of cocaine with intent to deliver. Ledford moved to
quash the indictment, arguing that under the Double Jeopardy
Clause of the Fifth Amendment, as interpreted by the Supreme
Court in Department of Revenue of Montana v. Kurth Ranch, 511
U.S. 767 (1994), the State could not prosecute him criminally
2 after assessing the controlled substances tax. The state trial
court denied Ledford’s motion to quash and convicted him of the
charged offense. He was sentenced to fifteen years in prison and
imposed a $10,000 fine. On direct appeal, the Texas Court of
Appeals reversed Ledford’s conviction and dismissed the
indictment. Ledford v. State, No. 14-94-00801-CR, 1997 WL 109948
(Tex. App. - Houston [14th Dist.] Mar. 13, 1997), vacated, 970
S.W.2d 17 (Tex. Crim. App. 1998), cert. denied, 525 U.S. 1043
(1998). On remand, the Texas Court of Appeals, based on a Court
of Criminal Appeals decision in Ex parte Ward, 964 S.W.2d 617
(Tex. Crim. App. 1998)(en banc), cert. denied, 525 U.S. 823
(1998), affirmed Ledford’s conviction. Ledford v. State, No. 14-
94-00801-CR, 1997 WL 717387 (Tex. App. - Houston [14th Dist.]
Sept. 16, 1999). A petition for federal habeas followed, in
which Ledford asserted that the sentence he is serving under
Texas law violated the Double Jeopardy Clause prohibition against
successive punishments. The district court denied relief, but
granted a certificate of appealability.
The decision of the Court of Criminal Appeals in Ex parte
Ward, on which the Texas Court of Appeals relied in affirming
Ledford’s conviction, held that a partial payment of the
controlled substances tax does not constitute a punishment for
purposes of the Double Jeopardy Clause’s prohibition against
multiple punishments “absent full payment of the tax or a pay
arrangement with the comptroller’s office for the remaining
3 amount due ....” Ex parte Ward, 964 S.W.2d at 632. Ledford
contends that the decision of the Court of Appeals affirming his
conviction in reliance on Ex parte Ward is contrary to, and an
unreasonable application of, Supreme Court precedent established
in Kurth Ranch, thus entitling him to habeas relief under
§ 2254(d)(1). However, as the district court correctly pointed
out, in Kurth Ranch, the Court addressed a situation in which the
defendants pleaded guilty to drug offenses and the state
subsequently attempted to collect a tax on the possession of an
illegal drug. Kurth Ranch, 511 U.S. at 781. The Court held that
the Double Jeopardy Clause barred the collection of the tax after
a criminal prosecution. Id. at 784. The Kurth Ranch majority
explicitly declined to answer “whether an ostensibly civil
proceeding that is designed to inflict punishment may bar a
subsequent proceeding that is admittedly criminal in character.”
Id. at 781 n.21. The Ward court, the district court and this
court confront the reverse situation, of tax assessment and
partial payment before indictment, that the Kurth Ranch court did
not address. But the district court’s inquiry, as well as our
inquiry, is more limited than that of the Ward court. Our
question is only whether the decision of the Texas Court of
Appeals on Ledford’s direct appeal, relying on Ward, is contrary
to, or an objectively unreasonable application of, federal law
4 established by the Supreme Court.1 See Williams v. Taylor, 529
U.S. 362, 412 (2000) (holding that “an unreasonable application
of federal law is different from an incorrect or erroneous
application of federal law”). We need not and do not decide
whether we would reach the same conclusion as the Ward court.
See Bell v. Jarvis, 236 F.3d 149, 162 n.10 (4th Cir. 2000) (“A
federal habeas court may determine that the issue is ‘close,’ and
therefore not unreasonable,” as determined by the state court,
“without rendering an opinion as to whether [the federal court]
would reach the same conclusion if presented with the identical
issue on direct appeal ....”) (citations omitted).
After an exhaustive review of Kurth Ranch and the other
relevant Supreme Court decisions, the district court correctly
held that there was “no Supreme Court precedent directly on
point,” see Quinn v. Haynes, 234 F.3d 837, 846 (4th Cir. 2000)
(noting that “when Supreme Court precedent reserves an issue,
that precedent cannot represent ‘clearly established law’ on that
issue”) (citation omitted), and that Ledford was therefore
compelled to show that the state court’s adjudication of his
claim involved an unreasonable application of federal law, as
established by the Supreme Court, to the facts of this case. See
Ledford, 144 F. Supp. 2d at 719.
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Revised January 11, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20032 _____________________
MATTHEW TODD LEDFORD
Petitioner-Appellant
v.
TOMMY THOMAS, Sheriff, Harris County; ET AL Respondents JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent-Appellee _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
December 11, 2001
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
On a petition for habeas relief asserting that the
conviction by the State of Texas of petitioner Matthew Todd
Ledford for possession of a controlled substance violated the
Double Jeopardy Clause, where the State previously had assessed a
substantial tax against petitioner on the controlled substance
and petitioner had made a partial payment of that tax, the district court denied relief. Ledford v. Thomas, 144 F. Supp. 2d
709 (S.D. Tex. 2000). We AFFIRM. Because we can add little to
the district court’s excellent opinion, we write briefly.
I. HABEAS PETITION
On June 23, 1993, Ledford was arrested for the felony
offense of possession of at least 2,000 grams of cocaine. On
June 24, 1993, the Houston Police Department filed a marijuana
and controlled substance report with the Texas Comptroller of
Public Accounts. The report requested a tax assessment against
Ledford in the amount of $400,000. On June 29, 1993, the
Comptroller assessed $420,000 in taxes and penalties against
Ledford under the Texas Controlled Substances Tax Act, TEX. TAX
CODE §§ 159.001-159.206, which imposes a tax on the illegal
possession, purchase, acquisition, importation, manufacture, or
production of a controlled substance. On July 8, 1993, the
Comptroller filed a Texas State Tax Lien in Harris County.
Ledford paid $100 of the $420,000 assessment to the Comptroller
before July 15, 1993.
On July 15, 1993, the State of Texas indicted Ledford for
possession of cocaine with intent to deliver. Ledford moved to
quash the indictment, arguing that under the Double Jeopardy
Clause of the Fifth Amendment, as interpreted by the Supreme
Court in Department of Revenue of Montana v. Kurth Ranch, 511
U.S. 767 (1994), the State could not prosecute him criminally
2 after assessing the controlled substances tax. The state trial
court denied Ledford’s motion to quash and convicted him of the
charged offense. He was sentenced to fifteen years in prison and
imposed a $10,000 fine. On direct appeal, the Texas Court of
Appeals reversed Ledford’s conviction and dismissed the
indictment. Ledford v. State, No. 14-94-00801-CR, 1997 WL 109948
(Tex. App. - Houston [14th Dist.] Mar. 13, 1997), vacated, 970
S.W.2d 17 (Tex. Crim. App. 1998), cert. denied, 525 U.S. 1043
(1998). On remand, the Texas Court of Appeals, based on a Court
of Criminal Appeals decision in Ex parte Ward, 964 S.W.2d 617
(Tex. Crim. App. 1998)(en banc), cert. denied, 525 U.S. 823
(1998), affirmed Ledford’s conviction. Ledford v. State, No. 14-
94-00801-CR, 1997 WL 717387 (Tex. App. - Houston [14th Dist.]
Sept. 16, 1999). A petition for federal habeas followed, in
which Ledford asserted that the sentence he is serving under
Texas law violated the Double Jeopardy Clause prohibition against
successive punishments. The district court denied relief, but
granted a certificate of appealability.
The decision of the Court of Criminal Appeals in Ex parte
Ward, on which the Texas Court of Appeals relied in affirming
Ledford’s conviction, held that a partial payment of the
controlled substances tax does not constitute a punishment for
purposes of the Double Jeopardy Clause’s prohibition against
multiple punishments “absent full payment of the tax or a pay
arrangement with the comptroller’s office for the remaining
3 amount due ....” Ex parte Ward, 964 S.W.2d at 632. Ledford
contends that the decision of the Court of Appeals affirming his
conviction in reliance on Ex parte Ward is contrary to, and an
unreasonable application of, Supreme Court precedent established
in Kurth Ranch, thus entitling him to habeas relief under
§ 2254(d)(1). However, as the district court correctly pointed
out, in Kurth Ranch, the Court addressed a situation in which the
defendants pleaded guilty to drug offenses and the state
subsequently attempted to collect a tax on the possession of an
illegal drug. Kurth Ranch, 511 U.S. at 781. The Court held that
the Double Jeopardy Clause barred the collection of the tax after
a criminal prosecution. Id. at 784. The Kurth Ranch majority
explicitly declined to answer “whether an ostensibly civil
proceeding that is designed to inflict punishment may bar a
subsequent proceeding that is admittedly criminal in character.”
Id. at 781 n.21. The Ward court, the district court and this
court confront the reverse situation, of tax assessment and
partial payment before indictment, that the Kurth Ranch court did
not address. But the district court’s inquiry, as well as our
inquiry, is more limited than that of the Ward court. Our
question is only whether the decision of the Texas Court of
Appeals on Ledford’s direct appeal, relying on Ward, is contrary
to, or an objectively unreasonable application of, federal law
4 established by the Supreme Court.1 See Williams v. Taylor, 529
U.S. 362, 412 (2000) (holding that “an unreasonable application
of federal law is different from an incorrect or erroneous
application of federal law”). We need not and do not decide
whether we would reach the same conclusion as the Ward court.
See Bell v. Jarvis, 236 F.3d 149, 162 n.10 (4th Cir. 2000) (“A
federal habeas court may determine that the issue is ‘close,’ and
therefore not unreasonable,” as determined by the state court,
“without rendering an opinion as to whether [the federal court]
would reach the same conclusion if presented with the identical
issue on direct appeal ....”) (citations omitted).
After an exhaustive review of Kurth Ranch and the other
relevant Supreme Court decisions, the district court correctly
held that there was “no Supreme Court precedent directly on
point,” see Quinn v. Haynes, 234 F.3d 837, 846 (4th Cir. 2000)
(noting that “when Supreme Court precedent reserves an issue,
that precedent cannot represent ‘clearly established law’ on that
issue”) (citation omitted), and that Ledford was therefore
compelled to show that the state court’s adjudication of his
claim involved an unreasonable application of federal law, as
established by the Supreme Court, to the facts of this case. See
Ledford, 144 F. Supp. 2d at 719.
1 § 2254(d)(1) entitles a petitioner to habeas relief if a state court decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
5 The district court went on to determine that the state
court’s decision, in reliance on Ex parte Ward, was not an
objectively unreasonable application of federal law because the
decision is not inconsistent with other Supreme Court precedent
regarding civil penalties imposed prior to criminal prosecution.
The district court discussed the Court’s decisions in Hudson v.
United States, 522 U.S. 93, 95-96 (1997) (holding that civil
monetary penalties and occupational debarment imposed on
defendant bank officers did not bar subsequent criminal
prosecution of those officers), and in United States v. Ursery,
518 U.S. 267, 270-71 (1996) (holding that civil in rem forfeiture
proceedings commenced prior to criminal prosecution do not create
double jeopardy), and found that these decisions were not
inconsistent with Ward.2 Ledford, 144 F. Supp. 2d at 725.
On appeal, Ledford fails to point to any Supreme Court
precedent contrary to the Court of Appeals decision on direct
appeal (relying on Ward) affirming Ledford’s conviction, and he
is no more successful in his claim that the Court of Appeals
decision involved an unreasonable application of clearly
2 We note that the district court further relied on this court’s decision in United States v. Sanchez-Escareno, 950 F.2d 193 (5th Cir. 1991), on decisions by Texas appellate courts following Ex parte Ward, as well as on arguably analogous decisions by other state courts. Ledford, 144 F. Supp. 2d at 719-25. The discussion offers further support for the district court’s determination that application of Ex parte Ward was not objectively unreasonable, but the focus of the habeas inquiry remains conflict with federal law established by the Supreme Court. See Williams, 529 U.S. at 412.
6 established federal law as determined by the Supreme Court. The
district court’s denial of Ledford’s petition for habeas relief
is, therefore, affirmed for essentially the reasons given by the
district court.
II. RULE 60(b) MOTION
Ledford contends that the district court erred in denying
his motion for reconsideration of the denial of habeas relief,
made pursuant to Federal Rule of Civil Procedure 60(b), which he
requested in light of this court’s decision in Doyle v. Johnson,
235 F.3d 956 (5th Cir. 2000). We have no jurisdiction to review
the denial of the Rule 60(b) motion, however, because Ledford
failed to timely file any notice of appeal regarding the
disposition of that motion. See FED. R. APP. P. 4(a)(B)(ii).3
III. CONCLUSION
For the foregoing reasons, the district court’s denial of
Ledford’s petition for habeas relief is AFFIRMED.
3 We further note that Ledford’s reliance on Doyle to characterize the district court’s denial of habeas relief as error is unpersuasive. The district court correctly determined that Doyle holds only that, under Ex parte Ward and Sanchez- Escareno, the seizure of a defendant’s bank account as payment of a tax subsequent to a criminal prosecution violated the Double Jeopardy Clause, even where the total value of the assets seized in that case failed to satisfy the entire assessment. See Doyle, 235 F.3d at 959. The facts and holding of Doyle do not control the instant case, therefore, and are of limited application to reconsideration of a habeas determination, as Supreme Court precedent controls.