                     Revised January 11, 2002

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                           No. 01-20032
                       _____________________




     MATTHEW TODD LEDFORD

                                         Petitioner-Appellant

          v.


     TOMMY THOMAS, Sheriff, Harris County; ET AL
                                        Respondents
     JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
     CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
                                        Respondent-Appellee
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

                         December 11, 2001

Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:

        On a petition for habeas relief asserting that the

conviction by the State of Texas of petitioner Matthew Todd

Ledford for possession of a controlled substance violated the

Double Jeopardy Clause, where the State previously had assessed a

substantial tax against petitioner on the controlled substance

and petitioner had made a partial payment of that tax, the
district court denied relief.    Ledford v. Thomas, 144 F. Supp. 2d

709 (S.D. Tex. 2000).   We AFFIRM.    Because we can add little to

the district court’s excellent opinion, we write briefly.

                        I.   HABEAS PETITION

     On June 23, 1993, Ledford was arrested for the felony

offense of possession of at least 2,000 grams of cocaine.     On

June 24, 1993, the Houston Police Department filed a marijuana

and controlled substance report with the Texas Comptroller of

Public Accounts.   The report requested a tax assessment against

Ledford in the amount of $400,000.    On June 29, 1993, the

Comptroller assessed $420,000 in taxes and penalties against

Ledford under the Texas Controlled Substances Tax Act, TEX. TAX

CODE §§ 159.001-159.206, which imposes a tax on the illegal

possession, purchase, acquisition, importation, manufacture, or

production of a controlled substance.    On July 8, 1993, the

Comptroller filed a Texas State Tax Lien in Harris County.

Ledford paid $100 of the $420,000 assessment to the Comptroller

before July 15, 1993.

     On July 15, 1993, the State of Texas indicted Ledford for

possession of cocaine with intent to deliver.    Ledford moved to

quash the indictment, arguing that under the Double Jeopardy

Clause of the Fifth Amendment, as interpreted by the Supreme

Court in Department of Revenue of Montana v. Kurth Ranch, 511

U.S. 767 (1994), the State could not prosecute him criminally



                                  2
after assessing the controlled substances tax.   The state trial

court denied Ledford’s motion to quash and convicted him of the

charged offense.   He was sentenced to fifteen years in prison and

imposed a $10,000 fine.   On direct appeal, the Texas Court of

Appeals reversed Ledford’s conviction and dismissed the

indictment.   Ledford v. State, No. 14-94-00801-CR, 1997 WL 109948

(Tex. App. - Houston [14th Dist.] Mar. 13, 1997), vacated, 970

S.W.2d 17 (Tex. Crim. App. 1998), cert. denied, 525 U.S. 1043

(1998).   On remand, the Texas Court of   Appeals, based on a Court

of Criminal Appeals decision in Ex parte Ward, 964 S.W.2d 617

(Tex. Crim. App. 1998)(en banc), cert. denied, 525 U.S. 823

(1998), affirmed Ledford’s conviction.    Ledford v. State, No. 14-

94-00801-CR, 1997 WL 717387 (Tex. App. - Houston [14th Dist.]

Sept. 16, 1999).   A petition for federal habeas followed, in

which Ledford asserted that the sentence he is serving under

Texas law violated the Double Jeopardy Clause prohibition against

successive punishments.   The district court denied relief, but

granted a certificate of appealability.

     The decision of the Court of Criminal Appeals in Ex parte

Ward, on which the Texas Court of Appeals relied in affirming

Ledford’s conviction, held that a partial payment of the

controlled substances tax does not constitute a punishment for

purposes of the Double Jeopardy Clause’s prohibition against

multiple punishments “absent full payment of the tax or a pay

arrangement with the comptroller’s office for the remaining

                                 3
amount due ....”    Ex parte Ward, 964 S.W.2d at 632.   Ledford

contends that the decision of the Court of Appeals affirming his

conviction in reliance on Ex parte Ward is contrary to, and an

unreasonable application of, Supreme Court precedent established

in Kurth Ranch, thus entitling him to habeas relief under

§ 2254(d)(1).    However, as the district court correctly pointed

out, in Kurth Ranch, the Court addressed a situation in which the

defendants pleaded guilty to drug offenses and the state

subsequently attempted to collect a tax on the possession of an

illegal drug.    Kurth Ranch, 511 U.S. at 781.   The Court held that

the Double Jeopardy Clause barred the collection of the tax after

a criminal prosecution.    Id. at 784.   The Kurth Ranch majority

explicitly declined to answer “whether an ostensibly civil

proceeding that is designed to inflict punishment may bar a

subsequent proceeding that is admittedly criminal in character.”

Id. at 781 n.21.   The Ward court, the district court and this

court confront the reverse situation, of tax assessment and

partial payment before indictment, that the Kurth Ranch court did

not address.    But the district court’s inquiry, as well as our

inquiry, is more limited than that of the Ward court.     Our

question is only whether the decision of the Texas Court of

Appeals on Ledford’s direct appeal, relying on Ward, is contrary

to, or an objectively unreasonable application of, federal law




                                  4
established by the Supreme Court.1     See Williams v. Taylor, 529

U.S. 362, 412 (2000) (holding that “an unreasonable application

of federal law is different from an incorrect or erroneous

application of federal law”).   We need not and do not decide

whether we would reach the same conclusion as the Ward court.

See Bell v. Jarvis, 236 F.3d 149, 162 n.10 (4th Cir. 2000) (“A

federal habeas court may determine that the issue is ‘close,’ and

therefore not unreasonable,” as determined by the state court,

“without rendering an opinion as to whether [the federal court]

would reach the same conclusion if presented with the identical

issue on direct appeal ....”) (citations omitted).

     After an exhaustive review of Kurth Ranch and the other

relevant Supreme Court decisions, the district court correctly

held that there was “no Supreme Court precedent directly on

point,” see Quinn v. Haynes, 234 F.3d 837, 846 (4th Cir. 2000)

(noting that “when Supreme Court precedent reserves an issue,

that precedent cannot represent ‘clearly established law’ on that

issue”) (citation omitted), and that Ledford was therefore

compelled to show that the state court’s adjudication of his

claim involved an unreasonable application of federal law, as

established by the Supreme Court, to the facts of this case.     See

Ledford, 144 F. Supp. 2d at 719.

     1
        § 2254(d)(1) entitles a petitioner to habeas relief if a
state court decision is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”

                                   5
     The district court went on to determine that the state

court’s decision, in reliance on Ex parte Ward, was not an

objectively unreasonable application of federal law because the

decision is not inconsistent with other Supreme Court precedent

regarding civil penalties imposed prior to criminal prosecution.

The district court discussed the Court’s decisions in Hudson v.

United States, 522 U.S. 93, 95-96 (1997) (holding that civil

monetary penalties and occupational debarment imposed on

defendant bank officers did not bar subsequent criminal

prosecution of those officers), and in United States v. Ursery,

518 U.S. 267, 270-71 (1996) (holding that civil in rem forfeiture

proceedings commenced prior to criminal prosecution do not create

double jeopardy), and found that these decisions were not

inconsistent with Ward.2   Ledford, 144 F. Supp. 2d at 725.

     On appeal, Ledford fails to point to any Supreme Court

precedent contrary to the Court of Appeals decision on direct

appeal (relying on Ward) affirming Ledford’s conviction, and he

is no more successful in his claim that the Court of Appeals

decision involved an unreasonable application of clearly

     2
        We note that the district court further relied on this
court’s decision in United States v. Sanchez-Escareno, 950 F.2d
193 (5th Cir. 1991), on decisions by Texas appellate courts
following Ex parte Ward, as well as on arguably analogous
decisions by other state courts. Ledford, 144 F. Supp. 2d at
719-25. The discussion offers further support for the district
court’s determination that application of Ex parte Ward was not
objectively unreasonable, but the focus of the habeas inquiry
remains conflict with federal law established by the Supreme
Court. See Williams, 529 U.S. at 412.

                                 6
established federal law as determined by the Supreme Court.           The

district court’s denial of Ledford’s petition for habeas relief

is, therefore, affirmed for essentially the reasons given by the

district court.

                     II.    RULE 60(b) MOTION

     Ledford contends that the district court erred in denying

his motion for reconsideration of the denial of habeas relief,

made pursuant to Federal Rule of Civil Procedure 60(b), which he

requested in light of this court’s decision in Doyle v. Johnson,

235 F.3d 956 (5th Cir. 2000).       We have no jurisdiction to review

the denial of the Rule 60(b) motion, however, because Ledford

failed to timely file any notice of appeal regarding the

disposition of that motion.       See FED. R. APP. P. 4(a)(B)(ii).3



                           III.    CONCLUSION

     For the foregoing reasons, the district court’s denial of

Ledford’s petition for habeas relief is AFFIRMED.



     3
        We further note that Ledford’s reliance on Doyle to
characterize the district court’s denial of habeas relief as
error is unpersuasive. The district court correctly determined
that Doyle holds only that, under Ex parte Ward and Sanchez-
Escareno, the seizure of a defendant’s bank account as payment of
a tax subsequent to a criminal prosecution violated the Double
Jeopardy Clause, even where the total value of the assets seized
in that case failed to satisfy the entire assessment. See Doyle,
235 F.3d at 959. The facts and holding of Doyle do not control
the instant case, therefore, and are of limited application to
reconsideration of a habeas determination, as Supreme Court
precedent controls.

                                     7
