Michael Anthony Truman v. Gary L. Johnson, Director Texas Department of Criminal Justice Institutional Division

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-11199
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Michael Anthony Truman,
Petitioner-Appellant,
v.
Gary L. Johnson, Director
Texas Department of Criminal Justice
Institutional Division,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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March 3, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
FACTUAL AND PROCEDURAL HISTORY
On October 23, 1990, Michael Anthony Truman, the petitioner, was arrested in possession
of a large quantity of marijuana. The Texas Comptroller of Public Accounts assessed a marijuana
and controlled substance tax of $114,408 against Truman based on his possession of the
marijuana and, on January 16, 1991, the comptroller’s office executed a levy against Truman’s
credit union account and collected $49.94, the balance in the account.
On October 28, 1992, a jury convicted Truman of aggravated possession of marijuana,
illegal investment, and possession of marijuana without a tax stamp. Truman received a twenty-
year sentence and a $1.00 fine for the possession conviction; a twenty-year sentence and a
$50,000 fine for the illegal investment conviction; and a two-year sentence and a $1.00 fine for
the tax stamp conviction. The sentences were imposed concurrently. Truman’s convictions and
sentences were affirmed on direct appeal and the Texas Court of Criminal Appeals denied his

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1 The district court did not address respondent’s assertion of procedural default or his
argument under Teague v. Lane, 489 U.S. 288 (1989).
petition for discretionary review.
Truman filed state habeas petitions challenging all three convictions on the grounds: 1)
that the assessment of the controlled substance tax and the civil forfeiture of an automobile caused
his convictions to violate principles of double jeopardy, and 2) that his attorney had been
ineffective for failing to raise the double jeopardy issue at trial and on direct appeal. The Court of
Criminal Appeals denied the petition without written order.
Truman then filed a federal habeas petition in which he argued that his convictions were
barred on grounds of double jeopardy because he had paid $49.95 of the assessed marijuana tax
and because his automobile had been forfeited, and that his attorney had been ineffective for
failing to challenge the convictions on grounds of double jeopardy.
The district court determined that the assessment and partial payment of the drug tax and
the forfeiture of his automobile did not bar Truman’s convictions under principles of double
jeopardy and denied him §2254 relief.1
STANDARD OF REVIEW
Truman’s petition for habeas corpus relief is subject to review under the Antiterrorism and
Effective Death Penalty Act of 1996 (the “AEDPA”). The AEDPA provides that a state prisoner
may not obtain relief 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; or
(2) resulted in a decision that was based on a unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
28 U.S.C. §2254 (d) (1996). At issue here is §2254 (d) (1), which has been interpreted as
requiring that “reasonable jurists considering the question would be of one view that the state
court ruling was incorrect.” Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996).

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The district court’s factual findings are reviewed for clear error, but questions of law are
decided de novo. See Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir. 1998) (citation omitted),
cert. denied, __ U.S. __, 119 S.Ct. 344 (1998).
DISCUSSION
With his appellate brief, Truman filed a “Motion to Declare the Texas Drug Tax Statute
Unconstitutional.” Because Truman did not seek review of the constitutionality of the Texas drug
tax statute in the district court, this court lacks jurisdiction to consider the motion. See 28 U.S.C.
§1291.
Truman argues that Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767
(1994), dictates that his convictions violate principles of double jeopardy because the assessment
of the controlled substance tax and/or the levy against his credit union account constituted
punishment within the meaning of the Double Jeopardy Clause.
The respondent argues that Teague v. Lane, 489 U.S. 288 (1989), bars this court from
considering the merits of Truman’s argument because Kurth Ranch, which was decided after
Truman’s conviction became final, enunciated a new rule of constitutional law.
Federal habeas relief may not be granted based on new rules of constitutional law, unless
the rule would place certain primary conduct beyond the government’s power to proscribe or
establish a bedrock rule of criminal procedure necessary to ensure a fundamentally fair trial. See
Teague v. Lane, 489 U.S. at 310, 312. The Teague holding was motivated by concerns for
comity and finality of convictions. See Teague, 489 U.S. at 308. Under Teague, a new rule is
one that was not dictated by precedent existing at the time the defendant’s conviction became
final. See id. at 301; Mann v. Scott, 41 F.3d 968, 976 (5th Cir. 1994). If the outcome of the case
is “susceptible to debate among reasonable minds,” then the decision is not dictated by precedent.
Lucas v. Johnson, 132 F.3d 1069, 1080 n. 7 (5th Cir. 1998) (quoting Butler v. McKellar, 494,
U.S. 407, 415 (1990)); see also Felder v. Johnson, 180 F.3d 206, 210 (5th Cir. 1999).
The fact that the Court divided 5-4 in Kurth Ranch suggests that the outcome of the case

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2 In a different context, the Court has stated that “nothing in Halper, Kurth Ranch, or Austin
purported to replace our traditional understanding that civil forfeiture does not constitute
punishment for the purpose of the Double Jeopardy Clause.” United Stated v. Ursery, 518 U.S.
267, 287 (1996). The fact that the Court adhered to its traditional understanding in regard to civil
forfeiture does not, however, compel the conclusion that Kurth Ranch did not change the
traditional understanding in regard to taxes. And the fact that Justice Rehnquist wrote Ursery
indicates that it should not be read to suggest that Kurth Ranch did not announce a new
constitutional rule.
was susceptible to debate among reasonable minds. Moreover, Justice Rehnquist characterized
Kurth Ranch as “drastically alter[ing] existing law” and pointed out that the Court had never
previously “subjected a tax statute to double jeopardy analysis.” Kurth Ranch, 511 U.S. at 785
(Rehnquist, J., dissenting).2
Given the expansive definition of a new constitutional rule, Teague bars this Court from
considering the merits of Truman’s argument. Kurth Ranch does not seem to be dictated by the
precedent available at the time Truman’s conviction became final. In the interests of finality and
comity, Kurth Ranch should be considered a new rule that bars this Court from considering the
merits of Truman’s claim.
CONCLUSION
Because Kurth Ranch announced a new constitutional rule, Teague bars this Court from
considering this case, and it is thereby DISMISSED.

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