Sanderson v. Rice

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation777 F.2d 902
Docket NumberNos. 84-6557,s. 84-6557
PartiesVirgil Mayo SANDERSON, Sr., Appellant, v. Nathan RICE; Rufus Edmisten, Attorney General of N.C., Appellees (Three Cases). Virgil Mayo SANDERSON, Sr., Appellee, v. Nathan A. RICE, Rufus L. Edmisten, Attorney General, Appellants. (L), 84-6575, 84-6730 and 84-6731.
Decision Date15 November 1985

Richard N. League, Sp. Deputy Atty. Gen. (Lacy H. Thornburg, Atty. Gen., Dept. of Justice, Raleigh, N.C., on brief), for Nathan A. Rice and Rufus L. Edmisten.

Robert P. Mosteller, Professor, Duke Law School, Washington, D.C. (Mark O. Costley, Marshall D. Orson, William W. Horton, L. Campbell Tucker, third year law students on brief), for Virgil Mayo Sanderson, Sr.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

The result of several interrelated petitions for a writ of habeas corpus filed by Virgil Mayo Sanderson in the United States District Court for the Eastern District of North Carolina fails fully to satisfy either him or the State of North Carolina. A holding of double jeopardy with respect to two counts on which Sanderson had been convicted, one for trafficking in marijuana by possession and the other for trafficking in marijuana by manufacture, has been appealed by the State. 1 Sanderson has appealed from the denial of all other relief sought by him.

Sanderson, along with two members of his family, during May, June and July of 1981, was involved in a series of drug transactions in Duplin County, North Carolina. On May 20, 1981, he sold a half ounce of cocaine and two ounces of marijuana. On May 22, 1981, he sold approximately a gram of cocaine, and on June 5, 1981 sold about a half a gram of cocaine. On June 18, 1981, Sanderson sold an amount in excess of an ounce of cocaine. Then, to cap everything off, on July 24, 1981, authorities discovered a substantial crop of marijuana (over 2,000 pounds) growing on farm land owned by Sanderson or his family.

The July 24, 1981 discovery brought about arrest and indictment for: 1) trafficking in marijuana by possession; 2) trafficking in marijuana by manufacture; 3) conspiracy to traffic by possession; 4) conspiracy to traffic by manufacture; 5) a substantive charge of possession of marijuana; and 6) a substantive charge of manufacturing marijuana. Conviction on October 5, 1981 of all six charges led to seven-year consecutive sentences on the first four counts. Concurrent sentences were also imposed for the two substantive charges of possession and manufacture. 2

On noting an appeal from the October 5, 1981 conviction, Sanderson encountered further difficulties following his moving to post an appeal bond. The State then contemporaneously indicted and thereafter convicted Sanderson for offenses on May 20, May 22, June 5, and June 18, 1981. As a consequence, there followed convictions resulting in sentencing of Sanderson to an additional thirty years, additional three to ten year sentences, and other sentencing running concurrently. As a consequence, the total sentence aggregated 78 years.

Double Jeopardy

At the center of the State's appeal lies the essential necessity of ascertaining, in a federal proceeding, the controlling state law rule. Does North Carolina make criminal two behaviors, one of trafficking by possession of marijuana, the other of trafficking by manufacture of marijuana; or are possession and manufacture, by North Carolina law, but two manifestations of a unitary trafficking behavior? The Supreme Court has placed the state legislative definition of the crime at the heart of double jeopardy analysis. The existence of double jeopardy depends on the legislative objective, whether to create one crime or more than one. Missouri v. Hunter, 459 U.S. 359, 365-68, 103 S.Ct. 673, 677-79, 74 L.Ed.2d 535 (1983). There is no separate federal constitutional standard requiring that certain actions be defined as single or as multiple crimes. If a statute provides for multiple crimes, the argument that the legislature constitutionally should have treated the course of conduct as constituting only one offense, entailing only a single punishment, will not avail. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 1435-36, 63 L.Ed.2d 715 (1980). As the Supreme Court has pointed out, the Double Jeopardy Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. at 366, 103 S.Ct. at 678.

It follows that Sanderson's double jeopardy claim can stand only if the North Carolina statute under which he was convicted was intended by the state legislature to create but a single offense.

Before we even reach that question, however, there is the preliminary question of whether we can--and should--avoid entirely the necessity of examining whether the North Carolina Court of Appeals, in concluding that there were two trafficking offenses, decided the state rule of law correctly or incorrectly, for the reason that the court's decision rested on an adequate and independent state ground. A federal court in a habeas corpus proceeding should be cautious in setting aside the judgment of a state court where that judgment is based on an interpretation of state law. Where the state law determination is adequate to sustain the state court's decision, the constitutional issue need not be reached. In such a situation, a federal court should review a state court's decision of a state law issue only where there is reason to suspect that federal rights are being improperly obstructed. Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977); Mullaney v. Wilbur, 421 U.S. 684, 690-91 & n. 11, 95 S.Ct. 1881, 1885-86 & n. 11, 44 L.Ed.2d 508 (1975); Henry v. Mississippi, 379 U.S. 443, 446-47, 85 S.Ct. 564, 566-67, 13 L.Ed.2d 408 (1965).

In this case, the North Carolina Court of Appeals rejected Sanderson's double jeopardy claim on the ground that his conduct constituted multiple offenses under North Carolina law. The North Carolina court's resolution of the threshold issue constitutes an independent state ground; thus, it may be argued, no constitutional issue arises. It is "a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts." Wainwright v. Sykes, supra, 433 U.S. at 81, 97 S.Ct. at 2503. Because there is no reason to suspect that the North Carolina Court of Appeals improperly sought to defeat a federal right, we, it may be convincingly argued, must accept that court's decision on a question of state law. See Thomas v. Warden, 683 F.2d 83, 85 (4th Cir.1982) ("Where the [double jeopardy] claim is made in relation to state offenses, federal courts are essentially bound by state court interpretations of state legislative intent."). Whichever of the two possible constructions of North Carolina law is correct, it appears that perhaps no constitutional error meriting habeas corpus relief has been made out here. See Hall v. Wainwright, 493 F.2d 37 (5th Cir.1974). 3

However, it is not necessary to rest decision on the grounds that no constitutional issue is presented, but rather at most an erroneous error of state law has been committed, inasmuch as an inquiry into North Carolina law leaves us convinced that the North Carolina Court of Appeals reached the correct result in all events. 4 Such an inquiry is appropriate bearing in mind that only the highest court of the state can determine in a binding fashion the rule of state law. E.g., Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967) ("the State's highest court is the best authority on its own law."). An opinion of an intermediate appellate court is persuasive in situations where the highest state court has not spoken 5 but does not prevail where the federal court is convinced that the highest court of the state would rule to the contrary. See Brendle v. General Tire & Rubber Co., 505 F.2d 243, 245 (4th Cir.1974) ("A federal court, sitting in North Carolina in a diversity case, must apply the law as announced by the highest court of that state or, if the law is unclear, as it appears the highest court of that state would rule.").

The indictment lodged against Sanderson included counts (a) for trafficking in marijuana by possession and (b) for trafficking in marijuana by manufacture. One permissible reading would interpret the statute, N.C.Gen.Stat. 90-95(h), as creating two separate and distinct offenses, permitting conviction and sentencing for both without violation of the constitutional stricture against double jeopardy. Another possible reading, also entirely constitutional, however, would construe the statute as creating but one crime, "trafficking," with trafficking by possession and trafficking by manufacture but two variations of a single offense. It may be argued, therefore, that a conviction and sentencing under both counts in the indictment not only would constitute a misinterpretation of state law, ordinarily not a basis for grant of habeas corpus relief, 6 but also would subject the petitioner, specifically Sanderson here, to double jeopardy in violation of the Fifth Amendment to the Federal Constitution through the Fourteenth Amendment. 7

Here the determination of how the highest court of North Carolina, the North Carolina Supreme Court, would interpret the statute presents an intriguing puzzle. On direct appeal the intermediate appellate court decided that two distinct crimes were proscribed. State v. Sanderson, 60 N.C.App. 604, 612-14, 300 S.E.2d 9, 15-16, dis. review denied, 308 N.C. 679, 304 S.E.2d 759 (1983). However, it did so only because of an extant decision of another panel of...

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