Smith v. Dixon, s. 91-4011

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation996 F.2d 667
Docket Number91-4012,Nos. 91-4011,s. 91-4011
PartiesKermit SMITH, Jr., Petitioner-Appellee, v. Gary DIXON, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant. Kermit SMITH, Jr., Petitioner-Appellant, v. Gary DIXON, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
Decision Date23 July 1993

Joan Herre Byers, Barry Steven McNeill, Sp. Deputy Attys. Gen., NC Dept. of Justice, Raleigh, NC, argued (Lacy H. Thornburg, Atty. Gen., of counsel), for respondent-appellant.

Martha Melinda Lawrence, Patterson, Harkavy, Lawrence, Van Noppen & Okun, Raleigh, NC, C. Frank Goldsmith, Jr., Goldsmith & Goldsmith, P.A., Marion, NC, argued (NC Resource Center, Raleigh, NC, of counsel), for petitioner-appellee.

Before WILKINS, Circuit Judge, and BUTZNER and SPROUSE, Senior Circuit Judges.

OPINION

SPROUSE, Senior Circuit Judge:

Kermit Smith, Jr. is a North Carolina prisoner who was sentenced to death following his conviction of the December 3, 1980 first-degree murder, second-degree rape, and common-law robbery of Whelette Collins. The district court granted Smith's habeas corpus petition, 1 finding that an instruction given to the jury that sentenced Smith to death was unconstitutionally vague, and required that Smith receive a new sentencing hearing. Smith v. Dixon, 766 F.Supp. 1370 (E.D.N.C.1991). The State of North Carolina, through the warden of the prison where Smith is incarcerated, appeals this decision. Smith cross-appeals, arguing that the district court erred in failing to find that the additional grounds he advanced provided a basis for relief. We affirm.

I. BACKGROUND

The gruesome facts surrounding Collins's long ordeal and subsequent murder are described in the opinion of the district court, id. at 1373-74, and the decision of the Supreme Court of North Carolina affirming Smith's conviction and sentence on direct appeal, State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). Briefly, Smith kidnapped Collins and her two companions at gunpoint and took them to deserted woods. The psychological and physical torture Collins experienced lasted for many hours before she was murdered. While her two friends were locked in the trunk of a car, Smith threatened Collins with death and brutally raped her. Following the rape, Smith forced her to remain naked outside at night in below freezing December temperatures for a substantial period of time, mocking her as she begged him for clothing or a blanket. Smith then bludgeoned Collins with a cinder block and dragged her body to a quarry pond where he crammed her feet inside the cinder block to make her body sink. The blunt trauma to Collins's head fractured her skull; she died from this injury. Her companions escaped from the trunk of the car physically unharmed.

After the jury convicted Smith, the trial court held a sentencing hearing in which it submitted four aggravating circumstances and five mitigating circumstances for the jury's consideration. Regarding one of the aggravating circumstances, whether the murder was "especially heinous, atrocious or cruel," the court instructed [E]very murder is not especially heinous, it is not atrocious nor cruel. While every murder, if it results from an unlawful killing, of course, is a violation of the law, but it does not necessarily mean that there is anything aggravated about it or that it was especially heinous or atrocious or cruel. And our Supreme Court has said that the words "especially heinous, atrocious or cruel" means extremely or especially or particularly heinous or atrocious or cruel. Heinous means extremely wicked or shockingly evil. Atrocious means marked by or given to extreme wickedness, brutality or cruelty, marked by extreme violence or savagely fierce. It means outrageously wicked and violent. Cruel means designed to inflict a high degree of pain, utterly indifferent to or the enjoyment of suffering of others.

The jury found the existence of all four of the aggravating circumstances submitted by the judge: that Smith committed the murder while (1) raping, (2) robbing, and (3) kidnapping Collins, and (4) that the murder was "especially heinous, atrocious or cruel." The jury found the existence of one of the five mitigating circumstances: that Smith committed the murder while under the influence of a mental or emotional disturbance. The jury determined that the aggravating circumstances outweighed the mitigating circumstances, and recommended that Smith be sentenced to death.

A. Direct Appeal

Smith appealed his conviction and sentence, but did not challenge the constitutionality of the heinousness factor. The Supreme Court of North Carolina conducted a review of the record pursuant to N.C.Gen.Stat. § 15A-2000(d), determined that the evidence was sufficient to support each of the aggravating factors, and affirmed Smith's conviction and sentence. Smith, 292 S.E.2d at 276-77. The United States Supreme Court denied Smith's request for certiorari, and Smith's conviction became final on November 29, 1982. Smith v. North Carolina, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982).

B. Motion for Appropriate Relief

Smith filed his first application for postconviction relief in North Carolina superior court in June of 1983. See N.C.Gen.Stat. § 15A-1415. Smith's Motion for Appropriate Relief raised 57 grounds attacking his conviction and sentence, which were grouped into five "claims." In Claim IV Smith raised for the first time the argument that the § 15A-2000(e)(9) statutory aggravating factor of heinousness was unconstitutionally vague in violation of the Eighth and Fourteenth Amendments, and that the jury was not charged with a constitutionally limiting definition of this factor. In addition, in 13 of the 14 issues he raised in Claim V, Smith maintained that he was denied his Sixth Amendment right to effective assistance of counsel at trial. Smith alleged in his Motion for Appropriate Relief two errors at the direct appeal stage: under Claim IV he argued that North Carolina's system of appellate review of death sentences was constitutionally inadequate, and under Claim V he argued that he had been denied the right to effective assistance of appellate counsel because his attorney had failed to advance on direct appeal many of the issues raised in his Motion for Appropriate Relief. Before the State responded to Smith's motion, the superior court entered an order summarily denying all of Smith's claims, except those based on ineffective assistance (Claim V). State v. Smith, Nos. 80 CRS 15265, 15266, 15271 (N.C.Super.Ct. Aug. 19, 1983). 2

Following an evidentiary hearing on the allegations of ineffective assistance, the superior court denied the remaining claims in Smith's Motion for Appropriate Relief. State v. Smith, Nos. 80 CRS 15265, 15266, 15271 (N.C.Super.Ct. Dec. 16, 1983). The Supreme Court of North Carolina summarily denied Smith's petition for a writ of certiorari, State v. Smith, 333 S.E.2d 495 (N.C.1985), as did the United States Supreme Court, Smith v. North Carolina, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 565 (1985). 3

C. District Court's Opinion

In May 1988, Smith filed his habeas corpus petition in the federal District Court for the Eastern District of North Carolina, seeking relief under 28 U.S.C. § 2254. The district court, in an opinion rendered before the Supreme Court's decision in Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), concluded that consideration by a federal court of Smith's claims was not barred by procedural default because the last state court opinion addressing these claims had not included a plain statement that it based the decision on state grounds. Smith v. Dixon, 766 F.Supp. 1370, 1376 (E.D.N.C.1991). Turning to the merits, the district court found that the heinousness instruction was unconstitutionally vague under Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and that Smith was not foreclosed by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), from raising this as error. Smith, 766 F.Supp. at 1379-86. It further held that the Supreme Court of North Carolina did not cure the vagueness error by reweighing the evidence or conducting a constitutional harmless-error analysis. Id. at 1386. The district court declined the State's invitation to conduct harmless-error analysis in the first instance, id., and rejected the numerous other errors asserted by Smith, id. at 1386-96. The court conditionally granted habeas relief, ordering that Smith's death sentence be set aside unless the State retried him within 180 days. Smith v. Dixon, No. 88-337 (E.D.N.C. Aug. 14, 1991). In addition, the district court stayed entry of judgment to permit the State to petition the Supreme Court of North Carolina for "further review ... in accordance with Clemons v. Mississippi." Id. (citing Clemons, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)).

In October 1991, the State petitioned the Supreme Court of North Carolina to clarify the basis for the decision it rendered in Smith's direct appeal. The Supreme Court of North Carolina denied the request, believing that it lacked jurisdiction to hear the matter. State v. Smith, 330 N.C. 617, 412 S.E.2d 68 (1991). Accordingly, the district court ordered its prior decision into effect. Smith v. Dixon, No. 88-337 (E.D.N.C. Dec. 2, 1991). Both the State and Smith appeal.

II. REVIEWABILITY OF FEDERAL CLAIMS 4

Before reaching the merits of Smith's claims, we must determine whether it is appropriate to do so. Federal habeas courts generally "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the...

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