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SMITH v. DIXON

Nos. 91-4011, 91-4012.

996 F.2d 667 (1993)

Kermit 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.

United States Court of Appeals, Fourth Circuit.

Decided June 11, 1993.

Amended by Order Filed July 19, 1993.

Rehearing Granted July 23, 1993.

Attorney(s) appearing for the Case

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.

Rehearing In Banc Granted July 23, 1993.

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...

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