*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

John Thomas Murray seeks to appeal from the district court’s order

dismissing his 28 U.S.C. § 2254 petition. He has not obtained a certificate of
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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 appeal 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 constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny the certificate of appealability.

On March 12, 1995, Murray pleaded guilty in Oklahoma state court to

charges of conspiracy, trafficking in illegal drugs, and possession of cocaine with

intent to distribute. On March 17, 1995, he was sentenced to 15 years on each

count, to run concurrently. He did not appeal. Prior 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 found in close proximity to the

drugs. On April 17, 1997, Murray cited this fact in applying for state postconviction relief based on the Double Jeopardy Clause of the Fifth Amendment. 

Oklahoma courts held, inter alia, that Murray’s claim was waived. Murray

subsequently filed the present petition in United States District Court for the

Western District of Oklahoma, raising the same argument. The magistrate judge

assigned to the case determined that Murray’s claim was procedurally barred, and

that the claim lacked merit in any event. The district court adopted the magistrate

judge’s Report and Recommendation in its entirety.
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We agree with the magistrate judge that, putting aside any issue of waiver

or procedural bar, Murray’s substantive claim is meritless:

[E]ven if the undersigned were to broadly construe the Petitioner’s

claim as a challenge to the sentencing court’s jurisdiction, which is

not subject to a state procedural bar, the undersigned finds that he is

not entitled to the relief he seeks. [Citations omitted.] 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 double 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 purpose 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 that
1The Court also noted that the statutes “serve[d] important nonpunitive

goals.” Ursery, 518 U.S. at 290. Such goals might just as easily be postulated for

the statutes in question here. For example, forfeiture statutes (1) “encourage[]

property owners to take care in managing their property and ensure[] that they

will not permit that property to be used for illegal purposes”; (2) “abate []

nuisance[s]”; and (3) “ensur[e] that persons do not profit from their illegal acts.” 

Id. at 290-91.

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the statutes are punitive in effect because they have “a ‘punitive’ flavor,” because

they deem scienter relevant, and because they “serve[] the traditional aims of

punishment.” Id. at 15, 16.

Murray’s arguments miss the point. The question here 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 Jeopardy 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.
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Accordingly, we DENY the certificate of appealability and DISMISS the

appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge