United States v. Britt

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-7735

CLARENCE BRITT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-90-26-BR, CA-95-99-7-BR)

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

CLARENCE BRITT,
Claimant-Appellant,
No. 96-6125
v.

$206,480.00IN UNITED STATES
CURRENCY,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Chief District Judge.
(CA-90-155-7-F)

Submitted: August 13, 1996

Decided: September 16, 1996

Before WIDENER, HALL, and MURNAGHAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Clarence Britt, Appellant Pro Se. John Douglas McCullough, Assis-
tant United States Attorney, Stephen Aubrey West, Assistant United
States Attorney, Charles Edwin Hamilton, III, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Clarence Britt appeals from the district court's dismissal of two
motions brought under 28 U.S.C. § 2255 (1988), amended by Antiter-
rorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214. In the first of these motions, No. 95-7735, Britt sought
relief from his criminal conviction and sentence. In the second
motion, No. 96-6125, he sought a return of property forfeited pursu-
ant to 21 U.S.C. § 881(a) (1988).1 In No. 95-7735 Britt alleged eleven
counts of ineffective assistance of counsel at trial, six counts of inef-
fective assistance on appeal, prosecutorial misconduct, and violations
of the Double Jeopardy Clause. He also moved for recusal of the dis-
trict judge and for an expedited hearing. In No. 96-6125, he alleged
a similar count of ineffective assistance and the same instance of pro-
_________________________________________________________________

1 This motion was alternatively labelled as a motion "under Federal
Rules of Criminal Procedure 41(e); and/or inverse condemnation for just
compensation under the Taking[s] Clause of the Fifth Amendment."

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secutorial misconduct. Britt has moved to consolidate both of these
motions. We grant Britt's motion to consolidate, 2 and affirm.

We have reviewed the record and the district court's opinion in No.
95-7735 and find no reversible error as to the denial of: (1) his
motions for recusal and for an expedited hearing; (2) his ineffective
assistance of appellate counsel claims; and (3) all but one of his inef-
fective assistance of trial counsel claims. Accordingly, we affirm the
dismissal of these claims on the reasoning of the district court. United
States v. Britt, Nos. CR-90-26-BR; CA-95-99-7-BR (E.D.N.C. Oct.
17, 1995).

We now address Britt's remaining claims. They are: (1) that either
his criminal conviction or the judgment of forfeiture entered against
his property under § 881(a)(6) and § 881(a)(7) violated the Double
Jeopardy Clause; (2) that his trial attorneys were ineffective for fail-
ing to object to either his conviction or the forfeiture on double jeop-
ardy grounds; and (3) that the Government engaged in prosecutorial
misconduct by seeking forfeiture of his property under 21 U.S.C.
§ 881 rather than 21 U.S.C. § 853 (1988). We find that these claims
do not entitle Britt to relief for the following reasons.

First, the Supreme Court has recently held that forfeitures con-
ducted pursuant to the statutory provisions at issue are neither crimi-
nal nor punishment for purposes of the Double Jeopardy Clause and
therefore do not impact on that clause when used in conjunction with
criminal trials. United States v. Ursery, ___ U.S. ___, 64 U.S.L.W.
4565 (U.S. June 24, 1996) (Nos. 95-345, 95-346). Accordingly, we
find that Britt is not entitled to relief on this first claim. Second,
Ursery's holding destroys Britt's ability to demonstrate the prejudice
required to prevail on his ineffective assistance claim. See Strickland
v. Washington, 466 U.S. 668 (1984) (providing standard). Finally, we
find that a prosecutor's decision to proceed under§ 881 rather than
§ 853 while pursuing a related criminal conviction is not prosecutorial
_________________________________________________________________
2 Britt has also filed a motion to consolidate these cases with a third
§ 2255 motion previously disposed of by this court. We deny this motion
as moot. He has also moved for sanctions against the Government. We
deny this motion as well.

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misconduct, but rather implementation of Congressionally authorized
procedures.

Given these determinations, we affirm the district court's dismissal
of both motions. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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