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SMITH v. DIXON

Nos. 91-4011, 91-4012.

14 F.3d 956 (1994)

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 January 21, 1994.

Attorney(s) appearing for the Case

ARGUED: Barry Steven McNeill and Joan Herre Byers, Sp. Deputy Attys. Gen., North Carolina Department of Justice, Raleigh, NC, for Appellant. C. Frank Goldsmith, Jr., Goldsmith & Goldsmith, P.A., Marion, NC; Martha Melinda Lawrence, Patterson, Harkavy & Lawrence, Raleigh, NC, for Appellee. ON BRIEF: Lacy H. Thornburg, Atty. Gen. of North Carolina, North Carolina Department of Justice, Raleigh, NC, for appellant. North Carolina Resource Center, Raleigh, NC, for Appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges, and BUTZNER and SPROUSE, Senior Circuit Judges.

OPINION

WILKINS, 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 relief pursuant to 28 U.S.C.A. § 2254 (West 1977), finding that because an instruction given to the jury that sentenced him to death was unconstitutionally vague, Smith was entitled...

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