* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN THOMAS MURRAY,

Petitioner - Appellant, No. 99-6063

v. (W.D. Oklahoma) RITA MAXWELL, Warden,

Respondent - Appellee. (D.C. No. CV-97-1075-C)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. John Thomas Murray seeks to appeal from the distric t court’s order dismissing his 28 U.S.C. § 2254 petition. He has n ot obtained a certificate of-2-

appealability as required by 28 U.S.C. § 2253(c)(1) (A). However, pursuant to Fed. R. App. P. 22(b), we construe his notice of ap peal as a request for a certificate of appealability. See Hoxsie v. Kerby , 108 F.3d 1239, 1241 (10th Cir.), cert. denied , 118 S. Ct. 126 (1997). Because Murray has failed to make “a substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253(c)(2), we deny the certificate of appealabil ity. On March 12, 1995, Murray pleaded guilty in Oklahom a state court to charges of conspiracy, trafficking in illegal drugs , and possession of cocaine with intent to distribute. On March 17, 1995, he was se ntenced to 15 years on each count, to run concurrently. He did not appeal. Pr ior to Murray’s guilty pleas, on November 15, 1994, $4,685 in funds claimed by Murray had been ordered forfeited because they were deemed to have been fou nd in close proximity to the drugs. On April 17, 1997, Murray cited this fact i n applying for state postconviction relief based on the Double Jeopardy Clau se of the Fifth Amendment. Oklahoma courts held, inter alia, that Murray’s cla im was waived. Murray subsequently filed the present petition in United S tates District Court for the Western District of Oklahoma, raising the same argu ment. The magistrate judge assigned to the case determined that Murray’s claimwas procedurally barred, and that the claim lacked merit in any event. The dist rict court adopted the magistrate judge’s Report and Recommendation in its entirety.-3-

We agree with the magistrate judge that, putting as ide any issue of waiver or procedural bar, Murray’s substantive claim is me ritless: [E]ven if the undersigned were to broadly construe the Petitioner’s claim as a challenge to the sentencing court’s juri sdiction, which is not subject to a state procedural bar, the undersig ned finds that he is not entitled to the relief he seeks. [Citations om itted.] This is true because the Petitioner’s claim is foreclosed by the Supreme Court’s decision in United States v. Ursery , 518 U.S. 267 (1996), which held that civil forfeitures generally do not constitute punishment for purposes of the Fifth Amendment’s prohibition on do uble jeopardy. See United States v. Deninno , 103 F.3d 82, 87 (10th Cir. 1996) . . . . Appellant’s App. at 10-11. The general rule announced in Ursery applies here. The only exception to the rule is “where the ‘clearest proof’ indicates that an in rem civil forfeiture is ‘so punitive either in purpose or effect’ as to be equivalent to a criminal proceeding.” Ursery , 518 U.S. at 289-90 n.3 (quoting United States v. One Assortment of 89 Firearms , 465 U.S. 354, 365 (1984)). Murray, undertaking an analysis of Oklahoma forfeiture statutes, seeks to come within this exception. He argues that the Oklahoma statutes are punitive in p urpose because no default judgment is allowed in forfeiture proceedings; because “the Oklahoma legislature increased the reach and the ease of the forfeiture laws at the same time that it increased terms of imprisonment and fines [for drug crimes]”; and because the breadth of the statutes indicates “an effort by the Legislature to ‘stack the deck’ in favor of law enforcement agencies.” Appellant’s Br. at 12, 14. He argues that1 The Court also noted that the statutes “serve[d] important nonpunitive

goals.” Ursery , 518 U.S. at 290. Such goals might just as easilybe postulated for the statutes in question here. For example, forfei ture statutes (1) “encourage[] property owners to take care in managing their prop erty and ensure[] that they will not permit that property to be used for illega l purposes”; (2) “abate [] nuisance[s]”; and (3) “ensur[e] that persons do notprofit from their illegal acts.” Id. at 290-91. -4- the statutes are punitive in effect because they have “a ‘punitive’ flavor,” because they deem scienter relevant, and because they “serv e[] the traditional aims of punishment.” Id. at 15, 16. Murray’s arguments miss the point. The question he re is not whether the Oklahoma statutes have any punitive purpose or effect, but whether they are “ so punitive either in purpose or effect as to be equivalent to a criminal proceeding .” Ursery , 518 U.S. at 289-90 n.3 (emphasis added). For example, in Ursery the Court noted, in declining to apply the Double Jeopa rdy Clause, that the statutes in question had “certain punitive aspects.” 1 518 U.S. at 290. That alone is not enough to implicate the Double Jeopardy Clause. In sum, Murray has pointed to nothing that even arguably warrants an exception to the general rule, much less “the clearest proof.” Ursery , 518 U.S. at 289 n.3.-5-

Accordingly, we DENY the certificate of appealabili ty and DISMISS the appeal.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge