Opinion
Civ. No. 97-CV-3013-DES.
Decided: April 18, 2000. Filed: April 19, 2000.
Michael S. Holland, Holland Holland, Russell, KS, for plaintiff.
Jared S. Maag, Office of Attorney General, Topeka, KS, for defendant.
MEMORANDUM AND ORDER
This matter comes before the court on review of Magistrate Judge Walter's Report and Recommendation (Doc. 13) on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner has filed objections to the Report and Recommendation, arguing that Magistrate Judge Walter incorrectly determined that the Kansas Drug Tax Act, Kan. Stat. Ann. § 79-5201, et seq., did not violate the Double Jeopardy Clause of the Fifth Amendment.
I. BACKGROUND
The Report and Recommendation summarized the background of this case as follows:
1. On or about July 29, 1994, the Kansas Department of Revenue, Division of Alcohol Beverage control, assessed and levied a tax on Hallock in the sum of $29,810.00 pursuant to K.S.A. 79-5202, and imposed a penalty in the amount of $29,810.00 pursuant to K.S.A. 79-5209. At the same time, personal property of petitioner was seized pursuant to a warrant issued by the Department of Revenue.
2. On August 29, 1996, petitioner John G. Hallock pled not guilty to one count of possession with intent to sell marijuana within one thousand feet of a school and one count of failure to pay Kansas Drug Tax. (State Court Records, Journal Entry filed 9/10/96).
3. On January 16, 1997, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed in this court.
4. Also on January 16, 1997, the Pawnee County District Court granted Hallock's motion for a stay of all proceedings in the District Court of Pawnee County, Kansas, until federal court review of the double jeopardy issue was completed. (State Court Records, Journal Entry filed 1/16/97). Hallock is currently free on bond.
5. Hallock has not presented this double jeopardy issue to the Kansas appellate courts. He claims the same issue he raises herein — the applicability of the Double Jeopardy Clause to the Kansas Drug Tax Act — was addressed and rejected by the Kansas Supreme Court in State v. Jensen, 259 Kan. 781 (1996) and State v. Gulledge, 257 Kan. 915 (1995).
6. Respondents have filed an answer and return (Doc. 5) and petitioner has filed a traverse (Doc. 11).
After discussing the relevant case law and the arguments of the petitioner, Magistrate Judge Walter concluded that although petitioner raised meritorious arguments, the Kansas Supreme Court's interpretation and application of Supreme Court precedent was not unreasonable. Therefore, Magistrate Judge Walter recommended that petitioner's habeas corpus petition be dismissed and relief denied.
II. CONCLUSION
The court finds that Kansas Drug Tax Act, Kan. Stat. Ann. § 79-5201, et seq., does not violate the Double Jeopardy Clause of the Fifth Amendment for the reasons stated in the companion case of Jensen v. Bouker, No. 97-3032 and 97-3033 (D.Kan. filed March 13, 2000). See attached Memorandum and Order in Jensen v. Bouker. Magistrate Judge Walter adequately and correctly determined this issue in the Report and Recommendation. Therefore, the court will accept and adopt the Report and Recommendation.
IT IS THEREFORE BY THE COURT ORDERED that the Report and Recommendation (Doc. 13) is accepted and adopted. Petitioner's habeas corpus petition is dismissed and all relief is denied.
DES:CD