UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GENE ELWOOD MOORE,
Petitioner-Appellant,

v.                                                                   No. 99-6732

ED BROWN, Sheriff,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-99-202-5-F)

Argued: April 7, 2000

Decided: May 30, 2000

Before LUTTIG, Circuit Judge, Roger J. MINER,
Senior Circuit Judge of the United States Court of Appeals
for the Second Circuit, sitting by designation,
and Patrick M. DUFFY, United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Stephen Miller, Jacksonville, North Carolina, for
Appellant. Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Gene Elwood Moore petitions this court to review the lower court's
grant of summary judgment to Sheriff Ed Brown, and denial of
Moore's petition for habeas corpus.

I. BACKGROUND

Mr. Moore (hereinafter "Moore") owns real estate located in Jack-
sonville, Onslow County, North Carolina, upon which he operates
three businesses, "Video Star," "Baby Dolls," and "Private Pleasures,"
alleged to be in violation of Onslow County's Ordinance entitled "Or-
dinance to Regulate Adult Businesses and Sexually Oriented Busi-
nesses in Onslow County, NC." The Ordinance, adopted on
September 21, 1992, provides that "adult businesses"1 and "sexually
oriented businesses"2 shall not be permitted in any building located
_________________________________________________________________
1 An "adult business," as defined by the Ordinance, is "any business
activity, club or other establishment which permits its employees, mem-
bers, patrons or quest [sic] on its premises to exhibit any specified ana-
tomical areas before any other person or persons." J.A. at 27. The
Ordinance defines specified anatomical areas "as less than completely
and opaquely covered human genitals, pubic regions, buttocks and
female breasts below a point immediately above the top of the areola."
J.A. at 28.
2 The Ordinance defines a "sexually oriented business" as

         any business activity, club or other establishment, within which
         the exhibition, showing, rental, or sale of materials distinguished

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within 1,000 feet in any direction from a dwelling or residence, house
of worship, public school or playground, or other adult or sexually
oriented business.3 A resolution adopted by the Board of County
Commissioners reflects the purpose of the Ordinance:

        [A]fter comprehensive study of potential deleterious second-
        ary effects of certain types of sexually oriented adult busi-
        nesses, the Board of Commissioners of Onslow County
_________________________________________________________________
        or characterized by an emphasis on material depicting, describ-
        ing, or exhibiting specified anatomical areas or relating to speci-
        fied sexual activities is permitted. Regulated businesses shall
        include, but are not limited to: adult arcades, adult bookstores,
        adult motion picture theaters, adult theaters, massage parlors,
        and/or adult video rental/sale stores . . . .

J.A. at 30. "Specified sexual activities" are defined as "[h]uman genitals
in a state of sexual stimulation or arousal; . . .[a]cts of human masturba-
tion, sexual intercourse, sodomy; or . . . [f]ondling or other erotic touch-
ings of human genitals, pubic regions, buttocks or female breasts." Id. at
28.
3 The portion of the Ordinance regulating adult and sexually oriented
businesses is as follows:

          (ii) No adult business [or sexually oriented business] shall be
          permitted in any building:

          (a) located within 1000 feet in any direction from a build-
          ing used as a residence or dwelling.

          (b) located within 1000 feet in any direction from a build-
          ing in which an adult business or a sexually oriented busi-
          ness is located.

          (c) located within 1000 feet in any direction from a build-
          ing used as a church, synagogue, or other house of worship.

          (d) located within 1000 feet in any direction from a build-
          ing used as a public school or as a state licensed day care
          center.

          (e) located within 1000 feet in any direction from any lot
          or parcel on which a public playground, public swimming
          pool, or public park is located.

J.A. at 29-30.

                     3
          finds that it is appropriate and necessary to prevent those
          deleterious secondary effects which can reasonably be
          expected to result from the inappropriate location or concen-
          tration of such businesses. . . .

Maynor v. Onslow County, 488 S.E.2d 289, 290 (N.C. Ct. App. 1997)
(citing Onslow County Code). The resolution also provides that "it is
not the intent of the Board of Commissioners of Onslow County . . .
to deny reasonable access to the distributors and exhibitors of sexu-
ally oriented entertainment to their intended market. . . ." Id. (citing
Onslow County Code).

On December 5, 1995, Onslow County filed an action in a North
Carolina superior court against Moore, seeking a mandatory and/or
prohibitory preliminary and permanent injunction and order of abate-
ment compelling Moore to comply with the provisions of the Ordi-
nance. On January 18, 1996, nunc pro tunc December 15, 1995, the
trial court found that Moore was operating a sexually oriented busi-
ness in violation of the Ordinance, and entered a Preliminary Injunc-
tion commanding Moore to bring his property into compliance with,
and prohibiting him from violating, the Ordinance. This order was
filed with the Onslow County Clerk of Court on March 26, 1996.
Moore gave notice of appeal from the entry of the Preliminary Injunc-
tion on April 18, 1996, which the North Carolina Court of Appeals,
in an unpublished opinion, dismissed as interlocutory on December 3,
1996. On July 3, 1996, the state trial court entered an order finding
that Moore willfully failed to comply with the provisions of the Pre-
liminary Injunction, and held him in civil contempt. On May 5, 1998,
the North Carolina Court of Appeals reversed the trial court's July 3,
1996 finding of civil contempt, and remanded Moore's case back to
the trial court.4
_________________________________________________________________

4 The North Carolina Court of Appeals reversed and remanded the trial
court's finding of civil contempt because under North Carolina law, a
person may not be held in contempt of an order that is not in force, and
the trial court had improperly based, in part, its finding of contempt on
Moore's conduct prior to the date of the March 26, 1996 Preliminary
Injunction Order. Onslow County v. Moore, 499 S.E.2d 780, 788-89
(N.C. Ct. App. 1998).

                    4
Onslow County also filed a motion on July 20, 1997 alleging
Moore's willful violation of the Preliminary Injunction's terms, and
the trial court issued an order on July 29, 1997 requiring Moore to
appear and show cause why he should not be held in criminal con-
tempt. At the hearing held on September 1, 1997, the State offered
evidence showing that Moore owns the three businesses, which are
located fifty to seventy-five feet from a private residence. A deputy
sheriff testified that while working in an undercover capacity, he
entered Moore's "Video Star" on July 11, 1997, and purchased a sex-
ually explicit video, which Moore stipulated "had an emphasis on
specified sexual activities and specified anatomical areas as those
terms are defined by . . . the Onslow County Ordinances." State v.
Moore, 511 S.E.2d 22, 24 (N.C. Ct. App. 1999). On July 25, 1997,
the same undercover officer visited Moore's "Private Pleasures,"
where he paid fifty dollars to have a nude female employee dance in
an erotic manner for thirty minutes. Id. On July 26, 1997, the officer
testified that he entered "Baby Dolls," and paid fifty dollars to have
a nude female employee perform sexual touching. Id.

After the hearing, the trial court found Moore guilty of criminal
contempt for his failure to abide by the Preliminary Injunction's
terms. Moore was publicly censured, fined five hundred dollars, and
sentenced to thirty days in jail.5 He appealed to the North Carolina
Court of Appeals, which affirmed the trial court's finding of criminal
contempt on February 2, 1999. Among other findings, the Court of
Appeals found the Ordinance at issue to be constitutional, holding
that it did not violate the First Amendment, and was not unconstitu-
tionally vague. State v. Moore, 511 S.E.2d 22, 26 (N.C. Ct. App.
1999). Moore subsequently filed a petition for discretionary review in
the Supreme Court of North Carolina, which that court denied on
March 3, 1999.

Moore next filed a petition for habeas corpus on March 24, 1999
in the United States District Court for the Eastern District of North
Carolina, asserting that the Ordinance is unconstitutionally vague and
overbroad in violation of the First and Fourteenth Amendments, and
that the Preliminary Injunction violates his due process rights by fail-
_________________________________________________________________
5 Moore commenced service of his thirty-day sentence on March 26,
1999.

                    5
ing to provide him with sufficient notice of the acts that he was
restrained from performing. The District Court denied Moore's peti-
tion, asserting that the constitutional validity of the Ordinance is "not
a matter for [the] court's review," and that the North Carolina Court
of Appeals reasonably interpreted and applied relevant due process
precedent in determining the Preliminary Injunction to be valid. This
appeal followed.

II. ISSUES

Moore has asked this court to review the following two questions:

          (1) Whether the District Court erred in failing to consider
          the constitutionality of the underlying Ordinance for which
          Moore was found in criminal contempt of court; and

          (2) Whether the District Court erred in concluding, pursuant
          to 28 U.S.C. § 2254(d), that the North Carolina courts' adju-
          dications in this matter were reasonable interpretations and
          applications of relevant due process precedent of the United
          States Supreme Court.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996
(hereinafter "AEDPA"), the scope of federal habeas review of state
court decisions is limited. See 28 U.S.C.§ 2254(d) and (e) (1999).
The AEDPA provides:

          (d) An application for a writ of habeas corpus on behalf of
          a person in custody pursuant to the judgment of a State court
          shall not be granted with respect to any claim that was adju-
          dicated 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

                     6
        (2) resulted in a decision that was based on an
        unreasonable determination of the facts in light of
        the evidence presented in the State court proceed-
        ing.

28 U.S.C. § 2254(d). We give independent meaning to the "contrary
to" and the "unreasonable application" clauses of subsection (1) of
section 2254(d). See Green v. French, 143 F.3d 865, 869-70 (4th Cir.
1998); see also Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000)
(approving of our "independent" interpretation). According to the
Supreme Court's decision in Williams, "A state-court decision will
certainly be contrary to [the Supreme Court's] clearly established pre-
cedent if the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases . . . . A state-court decision
will also be contrary to this Court's clearly established precedent if
the state court confronts a set of facts that are materially indistin-
guishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [the Court's] precedent." Id. at 1519-
20. Regarding the "unreasonable application" clause, Williams gener-
ally approved of our holding in Green, and stated it as follows: "First,
a state-court decision involves an unreasonable application of [the
Supreme] Court's precedent if the state court identifies the correct
governing legal rule from this Court's cases but unreasonably applies
it to the facts of the particular state prisoner's case. Second, a state-
court decision also involves an unreasonable application of [the]
Court's precedent if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to
a new context where it should apply." Id. at 1520 (citing Green, 143
F.3d at 869-870). The Williams Court emphasized that a federal
habeas court engaging in the "unreasonable application" analysis
"should ask whether the state court's application of clearly established
federal law was objectively unreasonable."6 In addition, under section
2254(e)(1), the state court's findings of fact are presumed correct on
_________________________________________________________________
6 Williams, 120 S. Ct. at 1521. The Williams Court ruled that our hold-
ing in Green that a state court decision involves an "unreasonable appli-
cation of . . . clearly established Federal law" if the state court has
applied federal law "in a manner that reasonable jurists would all agree
is unreasonable," was erroneous. Id.

                  7
federal habeas review, and a habeas applicant may only rebut these
findings by clear and convincing evidence. 28 U.S.C.§ 2254(e)(1).

This court's review of the District Court's grant of summary judg-
ment is de novo. See Higgins v. E.I. Dupont de Nemours & Co., 863
F.2d 1162, 1167 (4th Cir. 1988). To grant a motion for summary
judgment, a court must find that "there is no genuine issue as to any
material fact." Fed. R. Civ. P. 56(c). The judge is not to weigh the
evidence, but rather to determine if there is a genuine issue for trial.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no
material factual disputes remain, then summary judgment should be
granted against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which the party bears the burden of proof at trial. See Celotex
Corp. v. Catrett, 477 U.S. 317 (1986). All evidence should be viewed
in the light most favorable to the non-moving party. See Perini Corp.
v. Perini Constr., Inc., 915 F.2d 121, 123-124 (4th Cir. 1990).
"[W]here the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, disposition by summary judg-
ment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc.,
947 F.2d 115, 119 (4th Cir. 1991). "[T]he plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of
proof at trial." Celotex, 477 U.S. at 322. The "obligation of the non-
moving party is `particularly strong . . . when the nonmoving party
bears the burden of proof.'" Hughes v. Bedsole, 48 F.3d 1376, 1381
(4th Cir. 1995) (alterations omitted) (quoting Pachaly v. City of
Lynchburg, 897 F.2d 723, 725 (4th Cir. 1990)). Summary judgment
is not "a disfavored procedural shortcut," but an important mechanism
for weeding out "claims and defenses [that] have no factual bases."
Celotex, 477 U.S. at 327.

IV. DISCUSSION

A. The Constitutionality of the Ordinance

In declining to review the constitutionality of the Ordinance, the
District Court erroneously relied on the Supreme Court's decision in

                     8
Walker v. City of Birmingham, 388 U.S. 307 (1967). In Walker, the
Court upheld as constitutional an Alabama procedural law which pro-
hibited defendants from challenging the validity of the injunction or
ordinance underlying their criminal contempt convictions where those
defendants had not, prior to violating the injunction, moved the court
that issued the injunction to dissolve or modify that injunction. 388
U.S. at 320-21. Here, however, the record demonstrates that the North
Carolina courts did not rely on such a procedural rule, as the North
Carolina Court of Appeals, in its opinion affirming Moore's criminal
contempt conviction, ruled on the constitutionality of the Ordinance
even though it does not appear that Moore first moved the trial court
to dissolve or modify the injunction. See State v. Moore, 511 S.E.2d
22, 26 (N.C. Ct. App. 1999); J.A. at 203-04. Thus, Walker is inappli-
cable to this case, and accordingly does not prevent the federal courts
from reviewing the Ordinance's constitutionality. Consequently, the
District Court should have considered the constitutionality of the
Ordinance.

In its February 2, 1999 opinion of State v. Moore, 511 S.E.2d 22
(N.C. Ct. App. 1999), the North Carolina Court of Appeals consid-
ered and rejected Moore's contentions that the Ordinance is unconsti-
tutionally vague and overbroad, and violative of his First Amendment
right to freedom of expression. The North Carolina Court of Appeals'
conclusion that the Ordinance is constitutional is not contrary to, nor
an unreasonable application of, clearly established Supreme Court
precedent. Rather, it is entirely consistent with the controlling
Supreme Court cases of Young v. American Mini Theaters, Inc., 427
U.S. 50 (1976), and City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986). Both of those opinions upheld almost-identical ordi-
nances under the First Amendment, holding that the respective ordi-
nances were content-neutral time, place, and manner regulations that
affected only the location, and not the underlying activities, of adult
businesses. See Young, 427 U.S. at 62 (asserting that "[t]he mere fact
that the commercial exploitation of material protected by the First
Amendment is subject to zoning and other licensing requirements is
not a sufficient reason for invalidating these ordinances"); City of
Renton, 475 U.S. at 54-55. Under City of Renton, the Ordinance is
acceptable "so long as [it is] designed to serve a substantial govern-
mental interest and [does] not unreasonably limit alternative avenues
of communication." Id. at 47. Here, the Ordinance stated its purpose

                    9
as the prevention of the harmful secondary effects which often result
from the inappropriate location or concentration of sexually oriented
and adult businesses, which we find serves the substantial government
interest of preserving the County's quality of life. See id. at 50 (find-
ing that the ordinance was designed to combat adult theaters' harmful
secondary effects on the surrounding community, and thus served the
"substantial government interest" of safeguarding the city's quality of
life); Young, 427 U.S. at 62-63 ("The City's interest in planning and
regulating the use of property for commercial purposes is clearly ade-
quate to support [a 1,000-foot] restriction applicable to all [adult] the-
aters within the city limits."). Furthermore, there has been no
argument that the Ordinance unreasonably limits alternative avenues
of communication. Consequently, the Ordinance clearly does not vio-
late the Constitution under the controlling Supreme Court cases of
Young and City of Renton.

Furthermore, Moore has not supplied any clear and convincing evi-
dence that the North Carolina Court of Appeals' finding of the facts
was incorrect. Consequently, there is simply no way for Moore to
seriously argue that the Ordinance is unconstitutionally vague because
he harbored uncertainty as to whether the Ordinance applied to his
three businesses.

B. The Constitutionality of the Preliminary Injunction

Moore contends that the Preliminary Injunction issued by the state
superior court violates his due process and freedom of expression
rights. This claim is entirely meritless. The North Carolina Court of
Appeals rejected without discussion this same argument by Moore in
Onslow County v. Moore, 499 S.E.2d 780, 789 (N.C. Ct. App. 1998),
and another panel of the state appellate court stated that it would not
overrule that decision in State v. Moore, 511 S.E.2d 22, 25 (N.C. Ct.
App. 1999). We agree with the District Court's conclusion that the
North Carolina Court of Appeals reasonably interpreted and applied
relevant due process precedent in holding that the trial court's Prelim-
inary Injunction affords Moore due process by setting forth in reason-
able detail the acts enjoined.

V. CONCLUSION

We hold that the District Court erroneously assumed that Walker
was applicable to this case and prevented it from reviewing the con-

                     10
stitutionality of the Ordinance. We further hold that the Supreme
Court decisions of Young v. American Mini Theatres, Inc., 427 U.S.
50 (1976), and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), foreclose Moore's First Amendment challenges to the Ordi-
nance and Preliminary Injunction. We also reject as meritless Moore's
due process claim that the Preliminary Injunction failed to provide
him fair notice of what acts were prohibited. Accordingly, we affirm
the District Court's grant of summary judgment to Sheriff Brown, and
denial of Moore's petition for habeas corpus.

AFFIRMED

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