                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6864


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTWAINE LAMAR MCCOY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:03-cr-00064-RLV-1; 3:09-cv-00461-RLV)


Submitted:   December 31, 2014            Decided:   January 8, 2015


Before NIEMEYER, KING, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael L. Rosenthal, David D. Metcalf, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant.      Anne M. Tompkins, United
States Attorney, William M. Miller, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Antwaine         McCoy     appeals       the    district    court’s      order

denying   relief       on    his     28    U.S.C.    § 2255    (2012)      motion.     We

granted a certificate of appealability on the issue of whether

McCoy’s counsel rendered ineffective assistance by failing to

argue     that        two    of      McCoy’s        prior     controlled        substance

convictions, used to enhance his federal sentence, were obtained

in violation of the Double Jeopardy Clause.                     Having reviewed the

parties’ briefs and the record on appeal, we affirm the judgment

below.

            In reviewing the district court’s denial of a § 2255

motion,   we     review      the     district     court’s     factual      findings    for

clear error and its legal conclusions de novo.                       United States v.

Dyess, 730 F.3d 354, 359 (4th Cir. 2013), cert. denied, 135 S.

Ct. 47 (2014).             Where, as here, the district court considered

materials       outside      the     pleadings       but    denied     relief      without

holding    an    evidentiary         hearing,        the    court    could   not     “make

findings of fact on disputed matters,” and “its ruling was in

the   nature     of    a    summary       judgment    award    to    the   Government.”

United States v. Nicholson, 475 F.3d 241, 248 (4th Cir. 2007).

Under these circumstances, we view the facts in the light most

favorable to the § 2255 movant.                     United States v. Poindexter,

492 F.3d 263, 267 (4th Cir. 2007).



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               To succeed on his claim of ineffective assistance of

counsel,       McCoy       must    demonstrate        both     that     his    “counsel’s

performance          was    deficient”        and     that     counsel’s          “deficient

performance prejudiced the defense.”                      Strickland v. Washington,

466     U.S.     668,       687     (1984).          In      establishing         deficient

performance, McCoy must show “that counsel’s representation fell

below an objective standard of reasonableness.”                               Id. at 688.

McCoy    establishes         prejudice        by    demonstrating        “a       reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”                           Dyess, 730

F.3d at 361 (internal quotation marks omitted).

               The    Double      Jeopardy    Clause      protects      defendants     from

being    “twice       put    in    jeopardy”        for   an     offense,      prohibiting

multiple       prosecutions        or   punishments        for    the    same      offense.

United States v. Martin, 523 F.3d 281, 290 & n.5 (4th Cir. 2008)

(internal quotation marks omitted).                   We have recognized that the

North Carolina drug tax, as it existed at the time of McCoy’s

1992 and 1993 North Carolina drug convictions, see N.C. Gen.

Stat.    §§     105-113.105        to   105-113.113        (1992),      is    a    criminal

penalty for the purposes of the Double Jeopardy Clause.                             Lynn v.

West, 134 F.3d 582, 588-93 (4th Cir. 1998).                        McCoy argues that,

because he was assessed drug taxes at his 1992 and 1993 arrests

for cocaine possession and partially paid those taxes with funds

seized by law enforcement immediately after his arrests, his

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subsequent convictions for those offenses violated the Double

Jeopardy Clause.          McCoy asserts that his trial counsel could

have argued under Lynn that these drug convictions therefore

were not proper predicates for either the career offender or

Armed Career Criminal enhancements imposed during his federal

sentencing,     notwithstanding        the    fact    that    those     state

convictions have not been vacated.

            The district court rejected McCoy’s claim based on its

finding that McCoy’s convictions did not violate the prohibition

against double jeopardy because the tax warrants McCoy provided

with his § 2255 motion established that McCoy was convicted on

the drug offenses years before he was assessed the drug taxes.

Assuming, without deciding, that this conclusion is debatable,

we affirm the district court’s rejection of McCoy’s claim on an

alternative basis.         See United States v. Smith, 395 F.3d 516,

519 (4th Cir. 2005) (“We are not limited to evaluation of the

grounds offered by the district court to support its decision,

but   may   affirm   on    any   grounds   apparent   from   the   record.”).

Specifically, we conclude that McCoy has failed to demonstrate

that his counsel was ineffective in declining to collaterally

challenge his state drug convictions on double jeopardy grounds

during the federal sentencing hearing, in light of precedent

generally barring such collateral challenges, and due to the

absence of precedent clearly authorizing the specific collateral

                                       4
challenge McCoy advocates under Lynn.            See Daniels v. United

States, 532 U.S. 374, 382-84 (2001); Custis v. United States,

511 U.S. 485, 494-95 (1994); United States v. Hondo, 366 F.3d

363, 365 (4th Cir. 2004); United States v. Brandon, 363 F.3d

341, 345-46 (4th Cir. 2004); U.S. Sentencing Guidelines Manual

§§ 4A1.2 cmt. n.6, 4B1.2(c) & cmt. n.3 (2003).                 Further, we

conclude that remand for an evidentiary hearing is unwarranted.

            Accordingly,    we   affirm   the   district     court’s   order

denying § 2255 relief.       We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   this   court   and   argument   would    not   aid   the

decisional process.


                                                                    AFFIRMED




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