                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


LARRY NATHAN MINTER,                  
             Petitioner-Appellant,
                 v.                               No. 99-7255
THEODIS BECK; CLIFF JOHNSON,
            Respondents-Appellees.
                                      
LARRY NATHAN MINTER,                  
              Petitioner-Appellee,
                 v.                               No. 99-7256
THEODIS BECK; CLIFF JOHNSON,
           Respondents-Appellants.
                                      
           Appeals from the United States District Court
     for the Western District of North Carolina, at Asheville.
               Lacy H. Thornburg, District Judge.
                          (CA-99-30-1)

                      Argued: September 26, 2000

                      Decided: October 20, 2000

       Before WILKINS and LUTTIG, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Vacated and remanded with instructions by published opinion. Senior
Judge Hamilton wrote the opinion, in which Judge Wilkins and Judge
Luttig joined.
2                           MINTER v. BECK

                             COUNSEL

ARGUED: Winifred Helen Dillon, NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: Michael F. Easley, Attorney
General, Diane A. Reeves, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellees.


                              OPINION

HAMILTON, Senior Circuit Judge:

   On June 16, 1994, Larry Nathan Minter (Minter) pled guilty in
North Carolina state court to multiple state drug trafficking violations
and related offenses for which he received a twenty-five year sentence
of imprisonment. On February 24, 1999, Minter filed a petition for a
writ of habeas corpus in the United States District Court for the West-
ern District of North Carolina pursuant to 28 U.S.C. § 2254. In his
§ 2254 petition, Minter claimed that his June 1994 convictions and
sentence constituted impermissible double jeopardy under the Double
Jeopardy Clause of the Fifth Amendment to the United States Consti-
tution because he had already been prosecuted and punished for the
same conduct when North Carolina assessed $33,472.04 in taxes
against him pursuant to North Carolina’s controlled substance tax
(North Carolina’s Controlled Substance Tax), see N.C. Gen. Stat.
§§ 105-113.105 through 105-113.113, and obtained a judgment
against him in state court for the same amount.

   The district court agreed with Minter that a violation of his rights
under the Double Jeopardy Clause had occurred. However, the district
court concluded that the appropriate remedy for the violation was pro-
scription of the assessment and collection of North Carolina’s Con-
trolled Substance Tax against him, rather than vacatur of his
convictions and sentence. Accordingly, the district court entered a
judgment: (1) sustaining Minter’s June 1994 convictions and sen-
                            MINTER v. BECK                             3

tence; (2) denying his § 2254 petition; (3) stating that assessment and
collection of North Carolina’s Controlled Substance Tax with respect
to Minter "constitutes a violation of his Fifth Amendment rights and
is therefore proscribed"; and (4) stating that "this proceeding is hereby
DISMISSED in its entirety on the merits." (J.A. 69).

   Minter now appeals the district court’s judgment on the ground that
the district court should have vacated his June 1994 convictions and
sentence instead of proscribing assessment and collection against him
of North Carolina’s Controlled Substance Tax. North Carolina cross-
appeals, challenging, inter alia, the portion of the district court’s
judgment proscribing assessment and collection of North Carolina’s
Controlled Substance Tax against Minter and the district court’s
refusal to dismiss Minter’s § 2254 petition as time-barred.

   On February 24, 2000, we granted a certificate of appealability as
to whether North Carolina’s Controlled Substance Tax is a criminal
penalty and whether subjecting a defendant to both assessment of the
tax and criminal prosecution, based upon possession of the same
drugs, constitutes double jeopardy in violation of the Double Jeopardy
Clause. Our review of this case reveals that Minter’s § 2254 petition
is time-barred. Accordingly, we do not address the double jeopardy
argument raised by Minter. Because Minter’s § 2254 petition is time-
barred, we vacate the district court’s judgment in its entirety and
remand with instructions that Minter’s § 2254 petition be dismissed
as time-barred.

                                   I.

   As previously stated, on June 16, 1994, Minter pled guilty in North
Carolina state court to multiple state drug trafficking violations and
related offenses for which he received a twenty-five year sentence of
imprisonment. On June 17, 1998, Minter filed a motion for appropri-
ate relief in North Carolina state court, pursuant to North Carolina
General Statute § 15A-1411, collaterally challenging these convic-
tions as violative of his rights under the Double Jeopardy Clause.
According to Minter’s motion, his convictions in June 1994 consti-
tuted impermissible double jeopardy because he had already been
prosecuted and punished in the prior month for the same conduct
when North Carolina assessed $33,472.04 in taxes against him pursu-
4                          MINTER v. BECK

ant to North Carolina’s Controlled Substance Tax and obtained a
judgment against him in state court for the same amount.

   On June 26, 1998, the state trial court denied Minter’s motion for
appropriate relief on two grounds: (1) that his guilty plea constituted
a waiver of his right to challenge his June 1994 convictions as viola-
tive of the Double Jeopardy Clause; and (2) relying on State v. Bal-
lenger, 472 S.E.2d 572 (N.C. Ct. App. 1996), aff’d per curiam, 481
S.E.2d 84 (N.C. 1997), that imposition of the drug tax on Minter did
not bar North Carolina from subsequently prosecuting him for the
various drug crimes of which he was convicted. On September 1,
1998, the North Carolina Court of Appeals denied Minter’s petition
for a writ of certiorari in which he sought review of the denial of his
motion for appropriate relief.

   On February 24, 1999, Minter filed his § 2254 petition raising the
same double jeopardy argument that he raised in his motion for
appropriate relief in state court. North Carolina opposed the petition
on the grounds that it was time-barred, that Minter’s guilty plea con-
stituted a waiver of his right to argue that his June 1994 convictions
violated the Double Jeopardy Clause, and on the merits. The district
court rejected North Carolina’s untimely petition and waiver argu-
ments. Furthermore, the district court concluded that Minter’s rights
under the Double Jeopardy Clause had been violated. However, as
previously stated, the district court concluded that the appropriate
remedy for this violation was proscription of the assessment and col-
lection of North Carolina’s Controlled Substance Tax against him,
rather than vacatur of his convictions and sentence. Accordingly, on
July 23, 1999, the district court entered the judgment previously
described. These timely appeals followed.

                                  II.

   Dispositive of this entire appeal is our agreement with North Caro-
lina’s contention that Minter’s § 2254 petition is untimely. Under the
Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214, a petition for a writ of habeas
corpus by a person in custody pursuant to the judgment of a state
court must be filed within one year of the latest of:
                           MINTER v. BECK                            5

    (A) the date on which the judgment became final by the
    conclusion of direct review or the expiration of the time for
    seeking such review;

    (B) the date on which the impediment to filing an applica-
    tion created by State action in violation of the Constitution
    or laws of the United States is removed, if the applicant was
    prevented from filing by such State action;

    (C) the date on which the constitutional right asserted was
    initially recognized by the Supreme Court, if the right has
    been newly recognized by the Supreme Court and made
    retroactively applicable to cases on collateral review; or

    (D) the date on which the factual predicate of the claim or
    claims presented could have been discovered through the
    exercise of due diligence.

28 U.S.C. § 2244(d)(1).

   For prisoners like Minter, whose convictions became final prior to
the effective date of the AEDPA, the one year period was not trig-
gered by the date the conviction became final, but instead by the
effective date of the AEDPA, April 24, 1996. See Hernandez v. Cald-
well, No. 98-7640, 2000 WL 1218361, at *3 (4th Cir. Aug. 28, 2000).
However, Minter did not file his motion for appropriate relief in state
court until June 17, 1998 and did not file his § 2254 petition until
February 24, 1999.

   Minter’s § 2254 petition is clearly time-barred. Although the period
of time that Minter spent pursuing state post-conviction relief is
excluded from the one year limitation period, see 28 U.S.C.
§ 2244(d)(2), more than one year had otherwise elapsed from April
24, 1996 until he filed his § 2254 petition. Minter acknowledges this
fact, but argues that his petition is still timely under 28 U.S.C.
§ 2244(d)(1)(B), because he filed his petition within one year of the
date an impediment created by North Carolina was removed. Minter
identifies the impediment as the North Carolina case law holding that
North Carolina’s Controlled Substance Tax does not constitute a
6                           MINTER v. BECK

criminal penalty for purposes of the Double Jeopardy Clause. See
Ballenger, 472 S.E.2d at 572-75. According to Minter, this alleged
impediment was removed on January 13, 1998 when we issued our
decision in Lynn v. West, 134 F.3d 582 (4th Cir. 1998). In Lynn, we
held that North Carolina’s Controlled Substance Tax constituted a
criminal penalty for purposes of the Double Jeopardy Clause. See id.
at 584. Boiled down to its essentials, Minter’s argument is that he did
not initiate the habeas process raising his double jeopardy claim prior
to our decision in Lynn because to have done so would have been
futile in light of established North Carolina precedent.

   Minter’s argument rests on the flawed assumption that the term
"impediment," as found in § 2244(d)(1)(B), is synonymous with the
term "futile." The terms are far from synonymous. Because the term
"impediment" is not defined in the AEDPA, we turn to the dictionary
definition for its common meaning. See United States v. Lehman, No.
98-1307, 2000 WL 1199414, at *3 (4th Cir. Aug. 23, 2000) (turning
to dictionary definition of statutory term not defined in statute for
term’s common meaning). Random House Webster’s Unabridged
Dictionary defines the term "impediment" as "obstruction; hindrance;
[or] obstacle." 959 (2d ed. 1998). The same dictionary defines the
term "futile" as "incapable of producing any result; ineffective; use-
less; [or] not successful." Id. at 778. These definitions make clear that
the chief distinction between these two terms is that the term "impedi-
ment" speaks to hindering an effort while the term "futile" speaks to
an unsuccessful result of an already undertaken effort.

   Thus, while an effort by Minter to obtain habeas relief prior to
Lynn may have been incapable of producing a successful result, the
effort itself was still possible. In short, the North Carolina case law
holding that North Carolina’s Controlled Substance Tax is not a crim-
inal penalty for purposes of the Double Jeopardy Clause was never an
impediment to Minter filing a timely § 2254 petition. Rather, at most,
the case law may have meant that his effort in obtaining habeas relief
in state court would have been futile. Such futility, however, is not a
valid justification for filing an untimely § 2254 petition. As the
Supreme Court has recognized in the analogous context of proving
"cause" for procedural default of a habeas claim, "futility cannot con-
stitute cause if it means simply that a claim was unacceptable to that
particular court at that particular time." Bousley v. United States, 523
                            MINTER v. BECK                            7

U.S. 614, 623 (1998) (internal quotation marks omitted). "If a defen-
dant perceives a constitutional claim and believes it may find favor
in the federal courts, he may not bypass the state courts simply
because he thinks they will be unsympathetic to the claim. Even a
state court that has previously rejected a constitutional argument may
decide, upon reflection, that the contention is valid." Engle v. Isaac,
456 U.S. 107, 130 (1982) (footnote omitted).

   Next, Minter argues that even if we reject his argument that North
Carolina case law served as an "impediment," as that term is found
in § 2244(d)(1)(B), to his filing a § 2254 petition until our opinion
issued in Lynn, the district court correctly determined that the one
year period was equitably tolled until our decision in Lynn was issued.
We reject this argument as well. While we have recently held that the
AEDPA’s one year limitation period is subject to the discretionary
doctrine of equitable tolling, see Harris v. Hutchinson, 209 F.3d 325,
329-30 (4th Cir. 2000), the circumstances under which we held equi-
table tolling to be appropriate under the AEDPA are not present here.
We held that equitable tolling of the AEDPA’s one year limitation
period is "reserved for those rare instances where—due to circum-
stances external to the party’s own conduct—it would be unconscio-
nable to enforce the limitation period against the party and gross
injustice would result." Id. at 330. As previously explained, Minter’s
failure to timely file his § 2254 petition was not due to a circumstance
external to his own conduct. Accordingly, the district court abused its
discretion in determining that Minter was entitled to equitable tolling.

  Because Minter’s petition was time-barred, we vacate the district
court’s judgment in its entirety and remand with instructions that
Minter’s petition be dismissed as time-barred.

              VACATED AND REMANDED WITH INSTRUCTIONS
