Hicks v. Reese, C-C-84-677-P.

• Decision Date: 08 January 1986
• Docket Number: No. C-C-84-677-P.,C-C-84-677-P.
• Citation: 624 F. Supp. 1116
• Parties: Donnie Ray HICKS, Petitioner, v. R.L. REESE, Superintendent, Mecklenburg Unit I, and the Attorney General of the State of North Carolina, Respondents.
• Court: U.S. District Court — Western District of North Carolina

624 F. Supp. 1116

Donnie Ray HICKS, Petitioner,
v.
R.L. REESE, Superintendent, Mecklenburg Unit I, and the Attorney General of the State of North Carolina, Respondents.

No. C-C-84-677-P.

United States District Court, W.D. North Carolina, Charlotte Division.

January 8, 1986.

624 F. Supp. 1117

Danny Ray Hicks, Charlotte, N.C., pro se.

Barry McNeil, State of N.C., Dept. of Justice, Raleigh, N.C., for respondents.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court upon Respondents' Answer to Petition and Motion to Dismiss, filed January 28, 1985.

Petitioner was indicted May 2, 1983 by a Gaston County Grand Jury for fraudulently setting fire to a dwelling house in violation of N.C.Gen.Stat. § 14-65 (1981). He was tried and found guilty as charged during the August 8, 1983 Session of Gaston County Superior Court before the Honorable Claude S. Sitton. Petitioner was sentenced to three years, the presumptive prison term for Petitioner's Class H felony pursuant to N.C.Gen.Stat. § 15A-1340.4(f) (1983) on August 10, 1983.

On December 20, 1984 Petitioner was allowed to file this habeas corpus action in forma pauperis. In his Petition, Petitioner alleges that his rights against the deprivation of liberty without due process of law as guaranteed under the fourteenth amendment of the United States Constitution were violated by the trial court for the following reasons: (1) the State was not required to elect its theory of the crime, to wit, whether Petitioner burned the dwelling or procured another to do so — thus, allowing the jury too much latitude in deliberating and allowing the State to introduce irrelevant and prejudicial evidence; (2) the trial court admitted evidence that Petitioner had solicited another to burn his dwelling when there was no evidence that another

624 F. Supp. 1118

had burned it; and (3) the evidence was insufficient to sustain the conviction

Respondents state in their Answer and Motion to Dismiss that each of Petitioner's contentions are without merit and should be dismissed. The Court agrees and is of the opinion that Petitioner's petition for habeas corpus relief should be

DISMISSED.

The Petitioner's rights were not violated by the trial court's failure to require the State to elect its theory of the crime, that is, whether Petitioner burned the dwelling or procured another to do so; and, Petitioner's rights were not violated by the trial court's instruction to the jury that

to find the defendant guilty of

...