Opinion
1:99CV379
August 2, 2000
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE .
Petitioner Larry Wayne Boggs, a prisoner of the State of North Carolina, brought this federal habeas action pursuant to 28 U.S.C. § 2254 seeking to challenge the constitutionality of the August 14, 1996 controlled substance tax assessment imposed on Petitioner by the State of North Carolina. Petitioner also challenges the constitutional validity of his October 17, 1996 Alamance County conviction in 96 CRS 19596. In that case, a jury found Petitioner guilty of trafficking by possessing 14 grams or more, but less than 28 grams of Oxycodone and Petitioner was sentenced to 90 to 117 months imprisonment.
Petitioner appealed, but, on July 21, 1998, the North Carolina Court of Appeals affirmed. (Docket No. 7, Tab 1) Petitioner filed a motion for appropriate relief (MAR) in the Superior Court of Alamance County on February 17, 1999, which he amended on February 19, 1999. ( Id., Tabs 2 3) Petitioner's MAR was denied on the merits, on February 25, 1999. (Docket No. 15, Respondent's Supporting Brief at 2) The State reports that Petitioner pursued certiorari to the North Carolina Court of Appeals which was denied on March 24, 1999. ( Id.)
The Habeas Corpus Petition
Petitioner filed the present federal habeas petition on May 11, 1999. (Docket No. 1) In his petition, Petitioner attacks the constitutionality of the controlled substance tax assessment imposed on him on the basis that he was deprived of due process in a criminal proceeding (Ground One). Petitioner also collaterally attacks the judgment of the state court in 96 CRS 19596 on the basis that his prosecution and sentence in that case constitutes a subsequent prosecution and punishment for the same offense allegedly punished by the imposition of the drug tax (Ground Two); that the state court's jurisdiction in that case was precluded by the United States Constitution's prohibition against double jeopardy (Ground Three); and that counsel was ineffective for not raising the double jeopardy issue on direct appeal (Ground Four).
A review of the state court record reveals that Petitioner has raised the substance of his present claims in state court as required by 28 U.S.C. § 2254 (b)(1)(A). Accordingly, Respondent concedes that Petitioner has exhausted his state remedies. (Docket No. 4 at 3) Respondent and Petitioner have both moved for summary judgment (Docket Nos. 5 10, respectively) and these motions are now before this Court for a ruling. See Rule 8, Rules Governing § 2254 Cases. No overall recitation of the facts underlying Petitioner's conviction is necessary for the decision of his claims, although pertinent facts may be mentioned as they relate to individual claims.
DISCUSSION A.
First, the Court will address Respondent's argument that Petitioner has deprived the Court of jurisdiction by naming as respondent "Mike Easley, Attorney General, State of North Carolina" on the basis that the Attorney General is not Petitioner's custodian. (Docket No. 4 at 2) (The Court notes that Petitioner used a standard form for § 2254 habeas petitions, on which the Attorney General of the custodial state is listed as an additional party respondent.) To support its argument, Respondent cites to 28 U.S.C. § 2242, but that section sets forth only the form of the application, not jurisdictional requirements.
That section is set fort in full below:
Application for a writ of habeas corpus shail be in writing signed aid verified by the person for whose relief it is intended or by someone acting in his behalf.
It shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known.
It may be amended or supplemented as provided in the miles of procedure applicable to civil actions.
If addressed to the Supreme Court, a justice thereof or a circuit judge it shall state the reasons for not making application to the district court of the district in which the applicant is held.28 U.S.C. § 2242.
Respondent also cites Word v. North Carolina, 406 F.2d 352, 359 (4th Cir. 1969) to support its proposition that naming a technically incorrect custodian creates a jurisdictional defect requiring that the petition be summarily dismissed. The holding of Word, however, is that federal habeas corpus provides a present remedy for a state prisoner seeking to attack, on constitutional grounds, a conviction in another state which underlies a detainer filed with his keeper and that the action is properly brought in a district court in the demanding state. The rule of Word is not the rule Respondent espouses.
Respondent cites cases from other circuits which have concluded that a petitioner's failure to name the proper custodian does deprive a federal habeas court of jurisdiction, but circuit courts have not uniformly reached this conclusion. The Fifth Circuit, for example, held that "failure to name a proper respondent is a procedural rather than a jurisdictional defect, and it may be corrected by amendment of the petition." West v. State of Louisiana, 478 F.2d 1026 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (1975). Even in the Ninth Circuit, which has found that a habeas petitioner's failure to name a technically correct respondent deprives the federal court of personal jurisdiction, the petitioner is allowed the opportunity to timely amend his petition. See Stanley v. California Supreme Court, 21 F.3d 359 (9th Cir. 1994) (remanding habeas to district court with instructions to dismiss for lack of jurisdiction unless the petitioner could timely amend his petition to name the correct patty as respondent). This is likely due to the colossal waste of resources that would result if each habeas case in which the petitioner had failed to name a technically correct respondent were allowed to proceed to an advanced stage, only to be dismissed without an opportunity to amend. Here, Petitioner has filed an unopposed motion to amend the case caption to name as respondent James Pierce, Superintendent, which will be granted. Petitioner's habeas petition is properly before this Court.
B.
The State asks this Court to review Petitioner's habeas claims pursuant to 28 U.S.C. § 2254 (d) and (e). Section 2254(d) states:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . .28 U.S.C. § 2254 (d)(1).
Section 2254(d)(1) "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, ___ L.Ed.2d ___ (2000). In Williams, the Supreme Court set forth its formulation for the degree of that constraint, stating that "the writ may issue only if one of the following two conditions is satisfied-the state court adjudication resulted in a decision that (1) `was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Id. Under the "contrary to" clause, the writ may be granted "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id.
Under the "unreasonable application" clause, the writ may be granted "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." The Supreme Court clarified that "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Under this formulation, a federal habeas court is forbidden from transforming this inquiry into a subjective one by holding a state court's decision was an "unreasonable application" only if done "in a manner that reasonable jurists would all agree is unreasonable." In other words, a federal habeas court may not rest its determination that a state court's application of federal law was not an "unreasonable application" on "the simple fact that a least one of the Nation's jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner's case."
The Supreme Court expressly approved of the Fourth Circuit's formulation for the "contrary to" clause set forth in Green v. French, 143 F.3d 865, 869-70 (4th Cir. 1998), cert. denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999). Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1519, ___ L.Ed.2d ___ (2000). However, while generally agreeing with the Green court's formulation for "unreasonable application," the Supreme Court expressly rejected the Green court's holding that a state court's decision involves an "unreasonable application of . . . clearly established Federal law" only if the state court has applied federal law "in a manner that reasonable jurists would all agree is unreasonable." Williams ___ U.S. at ___, 120 S.Ct. at 1521, citing Green, 143 F.3d at 870.
Finally, state court findings of fact are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). Guided by these standards, the Court will now consider Petitioner's claims. Petitioner's double jeopardy claims (Grounds Two-Thee) and pendant ineffective assistance claim (Ground Four) will be addressed first.
1. Ground Two: Petitioner's conviction and sentence was imposed in violation of the United States Constitution's prohibition against double jeopardy.
As set forth above, on August 14, 1996, Petitioner was subjected to a controlled substance tax assessment in the amount of $1,200.00, plus penalties and interest, pursuant to N.C.G.S. 105-113.111 (hereinafter "drug tax"). Petitioner notes that the drug tax assessment was effective from August 2, 1996, the date he was arrested for felony trafficking by possession of a schedule II controlled substance, specifically for his possession of 28 percocet pills (which contain the schedule II controlled substance, Oxycodone). (Docket No. 2, Petitioner's mem. in support at 1) Citing Lynn v. West, 134 F.3d 582, cent denied, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998), Petitioner argues that the drug tax imposed on him was, in actuality, a criminal penalty and his subsequent prosecution for trafficking by possessing 14 grams or more, but less than 28 grams, of Oxycodone therefore constituted double jeopardy. In Lynn, the Fourth Circuit held that North Carolina's drug tax was a criminal penalty based upon the analysis set forth in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).
The United States Supreme Courtheld that a Montana controlled substance tax constituted a criminal penalty in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).
As the United States Supreme Court held in Williams, ___ U.S. ___, 120 S.Ct. 1495, however, federal habeas claims pursuant to § 2254 may only be established based upon federal law as determined by the Supreme Court. Further, relief may be granted only if the state court adjudication resulted in a decision that was either contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court. Id. Here, in adjudicating Petitioner's claim, the state court expressly relied on State v. Ballenger, 123 N.C. App. 179, 472 S.E.2d 572 (1996), affirmed per curiam, 345 N.C. 626, 481 S.E.2d 84, cert. denied, 522 U.S. 817, 118 S.Ct. 68, 139 L.Ed.2d 29 (1997), a case in which the North Carolina Appeals Court directly applied Kurth Ranch to the same North Carolina drug tax at issue here-and in Lynn-to reach the conclusion that the drug tax was not a criminal penalty. (Docket No. 7, Tab 4, Order summarily denying Petitioner's MAR) Respondent did not have the benefit of the United States Supreme Court's decision in Williams, but nonetheless correctly framed the question on federal habeas review as an inquiry into whether the state court's adjudication of Petitioner's claim, i.e., the reasoning set forth in Ballenger, resulted in a decision either contrary to, or involving an unreasonable application of, federal law as determined by the United States Supreme Court in Kurth Ranch.
Respondent has further correctly stated that Petitioner's case does not qualify for review under the "contrary to" clause of § 2254 because the factual situation in Petitioner's case is not "materially indistinguishable" from that presented in Kurth Ranch, nor is the legal question the same. The facts of Kurth Ranch raised the question of whether a tax on the possession of illegal drugs assessed after the state had imposed a criminal penalty for the same conduct violated the prohibition on double jeopardy. 511 U.S. 767, 114 S.Ct. 1937. The Supreme Court did not consider whether an assessment under a drug tax statute could bar subsequent criminal prosecution for the same conduct which triggered the drug tax, id. at 781-82, n. 21, 114 S.Ct. at 1947, n. 21, the situation Petitioner presents in his claim. Thus, the proper review is found under the "unreasonable application" clause.
Respondent attempts to demonstrate that the state court's application of federal law was not unreasonable by citing cases from this and other jurisdictions in which either the North Carolina drug tax, or drug taxes similar to the North Carolina drug tax, were found not to constitute a criminal penalty under the Kurth Ranch analysis. Respondent contends that this demonstrates that "reasonable jurists can and do agree with the North Carolina appellate court's adjudication of this double jeopardy issue, although still contrary to the Fourth Circuit's adjudication in Lynn." (Docket No. 15, Respondent's supporting br.) This is exactly the subjective unreasonable application inquiry which the United States Supreme Court recently rejected in Williams when it stated that a federal habeas court may not rest its determination that the state adjudication was not an unreasonable application of federal law on "the simple fad that a least one of the Nation's jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner's case." ___U.S. ___, 120 S.Ct. at 1521. Respondent certainly cannot be blamed for advancing this argument as it did not have the benefit of the Williams decision when briefing this question. Nevertheless, this Court rejects Respondent's argument to the extent that it relies upon this subjective standard and will, instead, look to the Ballenger court's application of federal law to determine whether it was an objectively unreasonable application of Kurth Ranch.
In Kurth Ranch, the Supreme Court majority answered the inquiry of whether the Montana drug tax constituted a criminal penalty by reviewing the tax for the presence of several factors consistent with a punitive character, although no single factor was dispositive of the inquiry. 511 U.S. at 780-1, 114 S.Ct. at 1946-7. The majority began by considering whether the tax was imposed at a high rate and whether it had an obvious deterrent purpose. Id. Then, the majority reviewed the statute for "unusual features" which would further indicate a punitive character. One such feature was the conditioning of the Montana tax upon the commission of a crime. Also important to the majority was the fact that the tax statute required the taxpayer to file a return only after the taxpayer had been arrested for the precise conduct that gave rise to the tax obligation (and, therefore, persons who had been arrested for drug possession constituted the entire class of taxpayers subject to the tax). Another exceptional characteristic of the Montana tax noted by the majority was that the tax was levied on goods that the taxpayer "neither own[ed] nor possess[ed] when the tax [wa]s imposed." Id. at 783, 114 S.Ct. at 1948. The majority, considering all of these factors in relation to the statute, found the Montana drug tax so punitive in nature as to constitute a successive criminal penalty violative of the prohibition against double jeopardy.
There is no question that in Ballenger the state court followed the multi-factor analysis set forth in Kurth Ranch. In Ballenger, the state court acknowledged that the North Carolina drug tax was imposed at a high rate and did have a deterrent effect, but correctly noted that these factors alone did not make the drug tax a criminal penalty. 472 S.E.2d at 574. The court then found that the North Carolina drug tax had features which distinguished it from the Montana drug tax, especially the North Carolina statute's provision that the tax became due within 48 hours of when the taxpayer came into possession of the controlled substance and the consequence that the tax could therefore be due on substances which had not been seized or destroyed, i.e., were actually possessed by the taxpayer. As the state appellate court explained, the North Carolina drug tax "contains neither of the `unusual features' upon which the Supreme Court relied in Kurth Ranch to conclude that Montana's dangerous drug tax constituted punishment for double jeopardy purposes." Id. It "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 necessarily has been confiscated or destroyed." See also State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), affirmed by, State v. Creason, 346 N.C. 165, 484 S.E.2d 525 (1997). The state court found that, because of these differences, the North Carolina drug tax did not have "such fundamentally punitive characteristics as to render it violative of the prohibition against multiple punishments for the same offense contained in the Double Jeopardy Clause."
Petitioner attacks the basis on which the state court distinguished the Montana tax, relying upon the argument that, while the North Carolina drug tax statute could theoretically be paid by a drug dealer who had not been arrested, it was, as applied and enforced, assessed only on those who, like Petitioner, had actually been arrested and had their drugs seized. However, when determining whether a statutory scheme is so punitive in nature as to constitute a criminal penalty for purposes of double jeopardy, the factors of the applicable test must be "considered in relation to the statute on its face." See Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 494, 139 L.Ed.2d 450 (1997) (emphasis added), citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). In light of this rule, the Ballenger court's focus upon the features of the North Carolina drug tax statute as written, rather than as applied, and it's resultant finding that North Carolina's drug tax did not constitute a criminal penalty because it was distinguishable from the Montana drug tax, cannot be termed an unreasonable application of federal law as determined in Kurth Ranch. Accordingly, Petitioner has failed to present a colorable double jeopardy claim under the habeas standard and this ground should be dismissed.
Although unnecessary to its decision, the Court will address Petitioner's express reliance upon Lynn v. West, 134 F.3d 582 (in which the Fourth Circuit rejected the basis on which the North Carolina Appeals Court distinguished the Montana drug tax). As the United States Supreme Court stated in Williams, a petitioner may not establish a habeas claim on anything less than federal law as determined by holdings of the United States Supreme Court. ___ U.S. ___, 120 S.Ct. 1495. Thus, Petitioner's reliance upon the holding of Lynn is ill-founded because the case does not constitute clearly established federal law in the sense required for habeas relief Moreover, Lynn does not stand for the proposition that the state court's application of federal law in Ballenger was objectively unreasonable, the showing which Petitioner must make to be granted relief This Court is well aware that Lynn is binding authority, but even if Lynn could be said to hold that Ballenger itself constitutes an "incorrect or erroneous application of federal law" (a conclusion this Court expressly declines to reach), such a holding would not mandate habeas relief because "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Williams, ___ U.S. ___, 120 S.Ct. at 1522.
Finally, while this Court followed Williams and did not rest its determination that the Ballenger decision was not an unreasonable application of federal law on the fact that another of the Nation's jurists have applied Kurth Ranch in the same manner as did the North Carolina Appellate Courts, neither did the Court decide this case in a vacuum without reference to any other court's decisions. Nor does this Court believe the Supreme Court has now required that habeas cases must be decided in such a manner. Rather, this Court found informative the decisions of other state's courts which have applied Kurth Ranch to find that drug tax statutes very similar to the North Carolina drug tax did not constitute a criminal penalty for double jeopardy purposes. See McMullin v. South Carolina Department of Revenue and Taxation, 321 S.C. 475, 469 S.E.2d 600 (1996) (South Carolina drug tax distinguishable from Montana drug tax because tax is imposed regardless of whether taxpayer has been arrested and is based on actual possession); State v. Gulledge, 257 Kan. 915, 896 P.2d 378 (1995) (Kansas drug tax distinguishable from Montana because it is imposed regardless of whether taxpayer has been arrested, is not applicable to everyone who possesses illegal drugs, and is due when the taxpayer is in possession of the drugs).
2. Ground Three: The court lacked jurisdiction and authority to impose the conviction and sentence against petitioner on 17 October 1996.
Here, Petitioner contends that he had allegedly already been punished criminally on August 14, 1996 by the imposition of the drug tax and, therefore, his October 17, 1996 prosecution violated the double jeopardy clause. In other words, Petitioner argues, his October 17, 1996 prosecution was unlawful and, as a consequence, the state court was without jurisdiction. The Court need not reach Petitioner's jurisdictional argument because, for the reasons stated in the previous section, Petitioner has failed to establish a colorable double jeopardy claim under the habeas standard. This ground should be dismissed as well.
3. Ground Four: Petitioner was denied effective assistance of counsel in violation of the United States Constitution.
Petitioner alleges that counsel was ineffective for failing to raise the present double jeopardy claim on direct appeal. An ineffective assistance of counsel claim is evaluated by using a two-part test:
A petitioner seeking to obtain relief from his conviction or sentence on the ground that his counsel rendered ineffective assistance must make two showings. First, he must demonstrate that counsel's performance was indeed deficient, i.e., that his lawyer failed in some respect to fulfill the role of adversary envisioned by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984). Second, it must be shown that the petitioner suffered prejudice attributable to counsel's deficiencies, i.e., that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
Counsel's performance is evaluated with regard to whether it "fell below an objective standard of reasonableness" under the circumstances. Id. at 688-90, 104 S.Ct. 2052. The test is rigorous: "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (citation and internal quotation marks omitted).
With respect to the prejudice requirement, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. The level of certainty is something less than a preponderance; it need not be proved that counsel's performance more likely than not affected the outcome. Id. at 693, 104 S. Ct. 2052. Instead, the petitioner need only demonstrate "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.Young v. Catoe, 205 F.3d 750, 758-9 (4th Cir. 2000); see also Evans v. Thompson, 881 F.2d 117 (4th Cir. 1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990) (Declaring that counsel pursued sound trial strategy when "he determined what he believed to be the petitioner's most viable arguments and raised them on appeal.").
A review of the record (made somewhat difficult as only the odd pages of the appeals court's opinion were provided) reveals that counsel did raise several issues on appeal, including an alleged error in jury instructions, evidentiary insufficiency, etc. (Docket No. 7, Tab 4) In light of the state court's holding in Ballenger, raising the double jeopardy claim Petitioner advanced on collateral review would have approached, if not actually constituted, a futile action. The record indicates nothing contrary to the presumption that counsel pursued sound trial strategy. Petitioner has failed to show deficiency or actual prejudice and this claim should be dismissed.
4. Ground One: North Carolina's enforcement of its drug tax violated Petitioner's constitutional rights under the 6th and 14th Amendments.
Petitioner likely raised this argument to counter the possibility that Respondent would contend that Petitioner had procedurally defaulted the double jeopardy claim by failing to raise it on appeal. A review of the decision of Petitioner's MAR reveals that the state court addressed the double jeopardy claim on the merits without alternatively invoking a procedural bar and Petitioner's claim accordingly received substantive treatment on federal habeas review. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 153-54, 99 S.Ct 2213, 2222-23, 60 L.Ed.2d 777 (1979).
Citing Lynn v. West, 134 F.3d 582, Petitioner contends that the August 14, 1996 drug tax imposed upon him constituted criminal punishment executed without the "panolpy of criminal procedure guarantees of the Fifth and Sixth Amendments" and seeks habeas relief on this basis. (Docket No. 2, Petitioner's mem. in support) A habeas writ may issue "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. The custody requirement is not limited to incarceration, but includes post-imprisonment supervision such as parole, probation, and certain rehabilitation programs. See, e.g., Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (parole); Wright v. United States, 732 F.2d 1048, 1050 (2d Cir. 1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985) (probation); Dow v. Circuit Court of First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir. 1993), cert. denied, 510 U.S. 1110, 114 S.Ct. 1051, 127 L.Ed.2d 372 (1994) (rehabilitation program).
Here, Petitioner does not plead that he is either incarcerated by, or under a supervisory program of, the State of North Carolina due to the August 14, 1996 drug tax assessment. Further, Petitioner cites no authority, nor is this Court aware of any, holding that a past tax assessment, even if imposed without due process, can constitute "custody" such that habeas relief maybe sought. In the somewhat analogous situation in which a petitioner's disorderly conduct conviction resulted in the imposition of a fine with no provision for incarceration in event of nonpayment, the Fourth Circuit has held that the petitioner was "not `in custody' within the intendment of habeas jurisdiction," Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977), and upheld the district court's dismissal of the petitioner's habeas claim challenging that conviction. Although both parties' pleadings indicate that Petitioner has not paid the entire sum-including penalties-that North Carolina imposed based upon the drug tax, Petitioner does not plead any facts indicating that, nor is there any apparent basis upon which, Petitioner could be incarcerated for non-payment. For these reasons, the Court finds that this claim does not sound in habeas and should be dismissed accordingly.
For the reasons stated above, Petitioner has failed to raise a colorable claim for federal habeas relief Accordingly, Respondents' motion for summary judgment should be granted. IT IS THEREFORE RECOMMENDED that Respondent's motion for summary judgment (Docket No. 5) be GRANTED, that Petitioner's motion for partial summary judgment (Docket No. 10) be DENIED, and that judgment be entered dismissing this action.
Because the Court finds that Petitioner's claims should summarily be dismissed as set forth in the text, it declines to reach Respondent's arguments that Petitioner's claims are either barred by the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 102 L.Ed.2d 334 (1989) or fail the double jeopardy identity test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
IT IS ORDERED that Petitioner's motion to amend pursuant to Rule 15 to amend the name James Pierce, Superintendent, for the name Mike Easley, on all pleadings be, and the same is hereby,
GRANTED. Further, Petitioner's motion for leave to tile supplemental authority (Docket No. 19) is hereby GRANTED.