UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Assistant United States Attorney, Stephen Aubrey West, Assistant United

States Attorney, Charles Edwin Hamilton, III, OFFICE OF THE

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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 Antiterrorism 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 pursuant 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 ineffective assistance on appeal, prosecutorial misconduct, and violations

of the Double Jeopardy Clause. He also moved for recusal of the district judge and for an expedited hearing. In No. 96-6125, he alleged

a similar count of ineffective assistance and the same instance of pro-

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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 ineffective 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 failing to object to either his conviction or the forfeiture on double jeopardy 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 conducted pursuant to the statutory provisions at issue are neither criminal 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

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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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