for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit Edward Ernest… v. R. C. LEE, Warden, Central Prison, Raleigh, North Carolina

Order filed 3/27/02 granting panel rehearing
for purpose of amending opinion

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Filed: March 27, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-16
(CA-99-701-5-H-HC)
Edward Ernest Hartman,
Petitioner - Appellant,
versus
R. C. Lee, etc.,
Respondent - Appellee.
O R D E R
The court amends its opinion filed March 5, 2002, as follows:
On page 14, continuation of footnote 6 -- a paragraph is added
which states:
Our conclusion that there is but one offense of
common law murder in North Carolina is also fatal to
Hartman’s claim that subject matter jurisdiction is not
established unless all the elements of a crime are
alleged in the charging document.
For the Court
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
EDWARD ERNEST HARTMAN,
Petitioner-Appellant,
v. No. 01-16
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-99-701-5-H-HC)
Argued: January 25, 2002
Decided: March 5, 2002
Before WILKINSON, Chief Judge, and WILKINS and
MICHAEL, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Chief Judge Wilkinson and Judge Michael joined.
____________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Benjamin Dowling-Sendor, OFFICE OF THE APPEL-
LATE DEFENDER, Durham, North Carolina, for Appellant. Gerald
Patrick Murphy, Special Deputy Attorney General, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Heather Wells, EDWIN L. WEST, III,

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P.L.L.C., Wilmington, North Carolina, for Appellant. Roy Cooper,
Attorney General of North Carolina, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
____________________________________________________________
OPINION OPINION OPINION OPINION
WILKINS, Circuit Judge:
Edward Ernest Hartman appeals an order of the district court deny-
ing his petition for a writ of habeas corpus. 1111
See 28 U.S.C.A. § 2254
(West 1994 & Supp. 2001). Hartman primarily contends that his con-
stitutional right to adequate notice of the charges against him was vio-
lated by the use of a short-form indictment. 2222 Because at least one
judge of the panel has concluded that Hartman "has made a substan-
tial showing of the denial of a constitutional right," 28 U.S.C.A.
§ 2253(c)(2) (West Supp. 2001), we grant Hartman's application for
a certificate of appealability,
see 4th Cir. R. 22(a). We conclude, how-
ever, that the rejection of this claim by the North Carolina Supreme
Court was neither contrary to, nor an unreasonable application of,
clearly established federal law as decided by the Supreme Court.
Accordingly, we affirm.
____________________________________________________________
1111 Hartman named R.C. Lee, Warden of Central Prison, as Respondent
in his position. For ease of reference, we refer to Lee as "the State"
throughout this opinion.
2222 Hartman also maintains that, under
Apprendi v. New Jersey, 530 U.S.
466 (2000), and
Jones v. United States, 526 U.S. 227 (1999), the State
violated his constitutional rights by failing to allege an aggravating cir-
cumstance authorizing imposition of the death penalty in the indictment.
Hartman acknowledges, however, that this argument is foreclosed by the
recent holding of the Fourth Circuit that
Apprendi and
Jones state a new
rule of constitutional law that cannot be applied retroactively to cases on
collateral review,
see United States v. Sanders, 247 F.3d 139, 151 (4th
Cir.),
cert. denied, 122 S. Ct. 573 (2001), and asserts that he raises the
issue only as a means of preserving it for further review by the United
States Supreme Court. Accordingly, we do not address it further.
2

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I.
A.
Until 1893, murder was an uncodified, common law crime in North
Carolina. Beginning in 1887, North Carolina employed a "short-form"
indictment for charges of murder. Currently codified at N.C. Gen.
Stat. 15-144 (1999), the indictment statute provides that an indictment
for murder is sufficient if, as is relevant here, it states "that the
accused person feloniously, willfully, and of his malice aforethought,
did kill and murder" the victim.
In 1893, North Carolina followed the lead of other states and codi-
fied its murder statute; in so doing, it separated the offense of murder
into two degrees. As presently codified, the murder statute provides:
A murder which shall be perpetrated by means of poison,
lying in wait, imprisonment, starving, torture, or by any
other kind of willful, deliberate, and premeditated killing, or
which shall be committed in the perpetration or attempted
perpetration of [enumerated felonies] shall be deemed to be
murder in the first degree . . . . All other kinds of murder . . .
shall be deemed murder in the second degree . . . .
N.C. Gen. Stat. § 14-17 (1999). When it thus codified the murder stat-
ute, the North Carolina legislature explicitly preserved the short-form
indictment dictated by § 15-144:
"[N]othing herein contained shall be construed to require
any alteration or modification of the existing form of indict-
ment for murder, but the jury before whom the offender is
tried shall determine in their verdict whether the crime is
murder in the first or second degree."
State v. Kirksey, 42 S.E.2d 613, 615 (N.C. 1947) (quoting Act of
1893, ch. 85, § 3).
Thus, under North Carolina law, all murders are alleged in short-
form indictments pursuant to § 15-144; the jury is required to deter-
3

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mine the degree of murder (first or second) when it deliberates
regarding the defendant's guilt.
See State v. Watkins, 194 S.E.2d 800,
808 (N.C. 1973).
B.
On June 3, 1993, Hartman shot Herman Smith, Sr. at close range
in the back of the head. Hartman had been living with Smith and
believed him to be wealthy; robbery was the apparent motive for the
murder. Hartman was subsequently arrested and confessed to the
crime.
Consistent with N.C. Gen. Stat. § 15-144, Hartman was charged in
a short-form indictment. The heading of the indictment identified the
charged crime as "murder," listed Hartman as the defendant, and set
forth the date of the crime. J.A. 158. The body of the indictment pro-
vided:
The jurors for the State upon their oath present that on or
about the date of ofense [sic] shown and in the county
named above the defendant named above unlawfully, will-
fully and feloniously did of malice aforethought kill and
murder Herman Larry Smith, Sr. This being in violation of
G.S. 14-17.
Id. At a motions hearing on May 4, 1994, the State made clear to
Hartman that it sought to convict him of first degree murder on a the-
ory of premeditation and that, in the event of such a conviction, it
intended to seek the death penalty based on at least one aggravating
factor, namely that the murder was committed during the course of a
robbery.
Prior to trial, Hartman moved to dismiss the indictment on the basis
that it failed to allege all of the necessary elements of first degree
murder. The trial court denied the motion on the basis of previous
decisions regarding the issue. Following a jury trial, Hartman was
convicted of first degree murder; after the penalty phase, the jury sen-
tenced him to death.
4

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On direct appeal, Hartman again challenged the constitutionality of
North Carolina's short-form indictment. The North Carolina Supreme
Court summarily rejected this argument.
See State v. Hartman, 476
S.E.2d 328, 347 (N.C. 1996),
cert. denied, 520 U.S. 1201 (1997).
After pursuing state post-conviction review, Hartman filed this fed-
eral habeas action on October 14, 1999. As is relevant here, Hartman
contended that "[t]he indictment . . . was insufficient to charge the
offense of first-degree murder by the two theories of premeditation
and deliberation and by felony murder because the indictment failed
to allege all the essential elements of first-degree murder by these the-
ories." J.A. 8. The district court rejected this argument, and Hartman
now appeals.
II.
A.
Because the North Carolina Supreme Court adjudicated Hartman's
challenge to the short-form indictment on the merits, we must deter-
mine whether "the adjudication of the claim . . . resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C.A. § 2254(d)(1). The Supreme Court
has concluded that a state court decision is "contrary to" clearly estab-
lished Supreme Court precedent when "the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a
question of law or . . . the state court decides a case differently than
[the] Court has on a set of materially indistinguishable facts."
Wil-
liams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision rests
on an "unreasonable application" of clearly established Supreme
Court precedent when "the state court identifies the correct governing
legal principle from [the] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case."
Id.
When, as here, the state court does not articulate the rationale for
its decision, our review is no less deferential than it is when we
review a detailed state court analysis of a petitioner's claim.
See Bell
v. Jarvis, 236 F.3d 149, 158, 163 (4th Cir. 2000) (en banc),
cert.
denied, 122 S. Ct. 74 (2001). However, the procedure differs slightly:
5

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We must conduct an independent review of the record and the appli-
cable law to determine whether the
result reached by the state court
"contravenes or unreasonably applies clearly established federal law."
Id. at 163 (internal quotation marks omitted).
B.
With these principles in mind, we turn to an analysis of Hartman's
claim. Hartman's assertion that the North Carolina short-form indict-
ment for murder violates the Constitution rests upon two premises:
First, that the Sixth Amendment and the Due Process Clause of the
Fourteenth Amendment require that a state charging document
include all elements of the charged offense; and second, that as a mat-
ter of state law, first degree and second degree murder are separate
offenses comprising different essential elements. Hartman maintains
that the decision of the state court was contrary to the first premise
because, in light of the second premise, the state court could uphold
the constitutionality of the short-form indictment only by concluding
that due process does not, in fact, require that all elements of an
offense be alleged in the charging document. As explained below, we
conclude that even if Hartman is correct with respect to his first prem-
ise, his argument founders on the second premise, because under
North Carolina law, first and second degree murder are not distinct
crimes, but rather are simply variations of the common law crime of
murder.
Elementary principles of due process require that an accused be
informed of the specific charge against him.
See Cole v. Arkansas,
333 U.S. 196, 201 (1948);
see also In re Oliver, 333 U.S. 257, 273
(1948) ("A person's right to reasonable notice of a charge against
him, and an opportunity to be heard in his defense . . . are basic in
our system of jurisprudence . . . ."). This requirement is also imposed
by the Sixth Amendment, which provides, in relevant part, that "[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation." U.S. Const.
amend VI. In this regard, the Due Process Clause and the Sixth
Amendment provide essentially the same protection to defendants.
See Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992).
6

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Hartman maintains that the requirements of the Sixth and Four-
teenth Amendments are satisfied only if the charging document sets
forth all of the elements of the charged offense. 3333
But see 4 Wayne R.
LaFave et al.,
Criminal Procedure § 19.3(a) (2d ed. 1999) (character-
izing suggestion "that the pleading of all essential elements is man-
dated by the notice requirement of the Sixth Amendment" as "a
dubious proposition"). In support of this proposition, Hartman relies
primarily on
Hodgson v. Vermont, 168 U.S. 262 (1897). 4444 Edward
____________________________________________________________
3333 We note that Hartman's claim is entirely formalistic in nature. He
does not contend, nor could he, that he did not receive
actual notice that
the State sought to convict him of first degree murder.
Hartman also maintains that a murder indictment must "notify a defen-
dant about which of several theories of first-degree murder the prosecu-
tion might pursue." Br. of Appellant at 23. However, the Constitution
does not require the method by which the crime was committed to be
alleged in the indictment.
See Martin v. Kassulke, 970 F.2d 1539, 1543
(6th Cir. 1992) (holding that Due Process Clause did not entitle rape
defendant to indictment specifying whether first degree rape was com-
mitted by force or through victim's physical helplessness).
4444 Hartman also cites a number of cases concerning the adequacy of fed-
eral indictments. Of course, because the Fifth Amendment requirement
of indictment by grand jury does not apply to the states,
see Alexander
v. Louisiana, 405 U.S. 625, 633 (1972), "federal cases involving indict-
ments are of little value when evaluating the sufficiency . . . of a state
accusatory pleading,"
Wilson v. Lindler, 995 F.2d 1256, 1264 (4th Cir.)
(Widener, J., dissenting),
adopted, 8 F.3d 173, 175 (4th Cir. 1993) (en
banc) (per curiam);
see Wilson, 995 F.2d at 1264 n.6.
Although Hartman forswears reliance on
Jones and
Apprendi, he
asserts that "[i]f those decisions were to apply retroactively . . . , they
would support [his] position." Br. of Appellant at 7. However, even if
Jones and
Apprendi applied to cases on collateral review, they would not
assist us in determining whether the decision of the state court was enti-
tled to deference under § 2254(d)(1), because those cases were decided
long after the ruling of the North Carolina Supreme Court.
See Williams,
529 U.S. at 412 (explaining that, in applying standard of § 2254(d)(1),
a federal habeas court may only consider the holdings of the Supreme
Court as they existed at the time of the state court ruling);
see also Boss
v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001) ("[I]n order to grant habeas
corpus relief under section 2254(d)(1), a federal court must be able to
point to the holding of a Supreme Court decision handed down before the
state courts issued the decision under review.").
7

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Hodgson was charged by information with selling liquor in violation
of state law, and he maintained that the information was deficient
because it failed to inform him,
inter alia, of the date of the alleged
offense, the type of liquor sold, and the buyer. Some of this
information—particularly, the names of the purchasers known to the
state—was supplied in a "specification."
Hodgson, 168 U.S. at 264.
In addressing Hodgson's claim, the Supreme Court acknowledged
that
in all criminal prosecutions the accused must be informed of
the nature and cause of the accusation against him; that in
no case can there be, in criminal proceedings, due process
of law, where the accused is not thus informed, and that the
information which he is to receive is that which will
acquaint him with the essential particulars of the offense, so
that he may appear in court prepared to meet every feature
of the accusation against him.
Id. at 269.
Hartman argues that this language stands unequivocally for the
proposition that a prosecution comports with the Due Process Clause
only when the defendant is notified of the elements of the charged
offense
in the charging document. We disagree.
Hodgson certainly
states that a defendant is entitled to notice of the charge against him,
and we assume that Hartman is correct in contending that the "essen-
tial particulars" include all elements of an offense. However, nowhere
does
Hodgson say that the only constitutionally sufficient means of
providing the notice required by the Sixth and Fourteenth Amend-
ments is through the charging document. 5555 Indeed, although it adopted
____________________________________________________________
5555 In this vein, we note we have found several cases in which deficient
indictments were held not to violate the Sixth and Fourteenth Amend-
ments when the defendant received actual notice of the charges against
him.
See Stephens v. Borg, 59 F.3d 932, 934-36 (9th Cir. 1995) (holding
that failure of indictment to charge felony murder did not violate Consti-
tution when defendant "had five days of actual notice of the prosecu-
tion's intent to rely on a felony-murder theory" prior to closing
argument);
Wilson, 995 F.2d at 1264 (concluding that constructive
amendment of indictment did not violate habeas petitioner's Sixth
8

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the holding of the Vermont Supreme Court that the information prop-
erly charged the elements of the offense, the Court noted that any
defects in the information were cured by the specification and
expressly declined to decide whether an information that failed to
allege all of the elements of a crime would be valid in the absence of
a specification.
See id. at 272 (stating that "the question of the validity
of the information in the absence of any specification is not presented
by this case, and we therefore express no opinion on it"). At the very
least, it is surprising that Hartman can point only to a single Supreme
Court case from over 100 years ago to support a proposition asserted
to be bedrock constitutional law. Nevertheless, we will assume for
purposes of deciding this appeal that Hartman's reading of
Hodgson
is correct.
The State argues that even if, under
Hodgson, a state charging doc-
ument is constitutionally deficient if it fails to set forth every element
of the offense, Hartman is not entitled to habeas relief. According to
the State, the decision of the North Carolina Supreme Court in Hart-
man's case cannot be considered unreasonable in light of two
Supreme Court cases,
Davis v. Territory of Utah, 151 U.S. 262
(1894), and
Bergemann v. Backer, 157 U.S. 655 (1895), both of
which addressed the constitutionality of short-form murder indict-
ments.
In
Davis, the defendant argued that his indictment—which charged
him with murdering the victim "willfully, feloniously, and of his
deliberately premeditated malice aforethought,"
Davis, 151 U.S. at
____________________________________________________________
Amendment right when he received actual notice of prosecution's theory
of case "at least before the jury was sworn, and almost certainly weeks
before");
Hulstine v. Morris, 819 F.2d 861, 863-64 (8th Cir. 1987) (hold-
ing that "[d]ue process requirements may be satisfied if a defendant
receives
actual notice of the charges against him, even if the indictment
or information is deficient"; concluding that defective indictment did not
violate defendant's Sixth Amendment right because defendant was made
fully aware of charges and potential punishment during guilty plea pro-
ceedings);
see also Fawcett, 962 F.2d at 618 (concluding that defective
state charging document does not violate due process unless "inadequate
notice [leads] to a trial with an unacceptable risk of convicting the inno-
cent").
9

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263 (internal quotation marks omitted)—was inadequate to support a
conviction for murder in the first degree because it failed to allege any
of the factors distinguishing first-degree murder from second-degree
murder. As the Supreme Court observed, "[t]his objection [was]
based, in part, upon the theory that murder in the first degree and
murder in the second degree are . . . distinct, separate offenses."
Id.
at 266. The Supreme Court rejected this contention, concluding that
"this is an erroneous interpretation of the statute. The crime defined
is that of murder. The statute divides that crime into two classes, in
order that the punishment may be adjusted with reference to the pres-
ence or absence of circumstances of aggravation . . . ."
Id.
As support for this conclusion, the Court examined the history of
the statutory division of murder into degrees, noting that Pennsylvania
was the first state to enact such a law. The Pennsylvania statute "re-
cite[d] as the reason for its passage that the several offenses, which
were included in the general denomination of `murder,' differed
greatly in the degree of their atrocity, and that it was unjust to involve
them in the same punishment."
Id. at 267. The Supreme Court also
pointed to a decision of the Pennsylvania Supreme Court, which held
that the statute "`does not define the crime of murder, but refers to it
as a known offense. . . . All that it does is to define the different kinds
of murder, which shall be ranked in different classes, and be subject
to different punishments.'"
Id. at 268 (quoting
White v. Common-
wealth, 6 Binn. 179 (Pa. 1813));
see id. (noting views of concurring
justice, who stated that "`[d]ifferent degrees of guilt exist under the
general crime of murder, which is therefore arranged under two
classes . . . . The uniform practice, since the act was passed, has been
to lay the offense as at common law'"). And, the Court cited cases
from ten other states holding that the division of murder into degrees
did not create separate offenses for first and second degree murder.
One year later, in
Bergemann, the Court addressed the constitution-
ality of a short-form murder indictment under New Jersey law. Berge-
mann was charged with murder in a short-form indictment alleging
that he "did willfully, feloniously, and of his malice aforethought kill
and murder" the victim.
Bergemann, 157 U.S. at 655 (internal quota-
tion marks omitted). After he was convicted and sentenced to death,
Bergemann petitioned for federal habeas relief on the basis that the
short-form indictment did not adequately charge him with first-degree
10

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murder as that crime was defined by New Jersey law. The New Jersey
murder statute provided as follows:
All murder which shall be perpetrated by means of poison,
or by lying in wait, or by any other kind of willful, deliber-
ate, and premeditated killing, or which shall be committed
in perpetrating or attempting to perpetrate, [enumerated fel-
onies], shall be deemed murder of the first degree; and all
other kinds of murder shall be deemed murder of the second
degree; and the jury . . . shall . . . designate by their verdict
whether it be murder of the first or second degree.
Id. at 657 (internal quotation marks omitted). The Supreme Court
rejected Bergemann's challenge to the adequacy of the indictment on
the basis of New Jersey case law holding that the separation of mur-
der into degrees did not "add any case to nor take any case from the
class of crimes which, at common law, was denominated `murder,'
for every act that was murder at common law was still murder in New
Jersey."
Id. Since the factors which distinguished first degree murder
from second degree murder were not elements of a separate offense,
the Due Process Clause did not require that they be alleged in the
indictment.
See id. at 657-58.
Hartman argues that
Davis and
Bergemann are not relevant here
because, as a matter of North Carolina law, first and second degree
murder are separate and distinct offenses. In support of this assertion,
Hartman points to several decisions of the North Carolina Supreme
Court describing first and second degree murder as "offenses."
See,
e.g.,
State v. Gainey, 468 S.E.2d 227, 230 (N.C. 1996) (characterizing
second degree murder as "lesser-included offense" of first degree
murder);
State v. Warren, 395 S.E.2d 116, 120 (N.C. 1990) (same);
State v. Young, 380 S.E.2d 94, 96 (N.C. 1989) (concluding that failure
to instruct on voluntary manslaughter as alternative to second degree
murder was harmless because jury convicted defendant "of the greater
crime of murder in the first degree");
State v. Davis, 290 S.E.2d 574,
589 (N.C. 1982) (referring to "murder in the first degree" as an "of-
fense"). These cases will not bear the weight Hartman would place on
them, however. Passing references to the "offenses" of first and sec-
ond degree murder are of little assistance in determining whether first
11

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and second degree murder are distinct crimes under North Carolina
law.
Other North Carolina cases provide substantially more guidance.
First, decisions issued in the years immediately following the passage
of the 1893 law indicate that the intent of the North Carolina legisla-
ture was to follow the example of Pennsylvania in dividing the single,
common law crime of murder into two degrees
without creating any
new offense. For example, in
State v. Fuller, 19 S.E. 797 (N.C. 1894),
"the very first case involving a construction of the late act defining
what constitutes murder in the first and second degrees,"
id. at 801,
the North Carolina Supreme Court noted that the North Carolina leg-
islature adopted Pennsylvania law almost verbatim,
see id. at 801-02,
for the purpose of "classify[ing] cases which before fell within the
definition of murder, and to subject to the death penalty only the more
heinous offenders,"
id. at 801. Importantly, the
Fuller court explicitly
stated that its interpretation of the act was in accord with that of Penn-
sylvania and states adopting the Pennsylvania statute:
As far as we can ascertain, every other state had previously
divided the common-law kind of murder into two classes.
The theory upon which this change has been made is that
the law will always be executed more faithfully when it is
in accord with an enlightened idea of justice. Public senti-
ment has revolted at the thought of placing on a level in the
courts one who is provoked by insulting words (not deemed
by the common law as any provocation whatever) to kill
another with a deadly weapon, with him who waylays and
shoots another in order to rob him of his money, or poisons
him to gratify an old grudge. . . .
Elsewhere the courts have
generally followed the lead of Pennsylvania, and we, too,
have adopted the interpretation given by her courts to the
law which our legislature has borrowed from her statutes.
Id. at 802. As noted in
Davis v. Territory of Utah, the Pennsylvania
courts, and states following their lead, uniformly interpreted the stat-
ute dividing murder into degrees not as creating two new crimes, but
rather as dividing the single, common law crime of murder into two
categories so that the punishment would better fit the particular crime.
See Davis, 151 U.S. at 268.
12

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The North Carolina Supreme Court made an even clearer statement
in
State v. Davis, on which Hartman relies for the proposition that
first degree murder and second degree murder are distinct offenses:
Prior to 1893 any intentional and unlawful killing of a
human being with malice aforethought, express or implied,
constituted murder punishable by death. In 1893 the General
Assembly adopted 1893 N.C. Pub. Laws ch. 85, the terms
of which are now embodied in G.S. 14-17, dividing murder
into two degrees.
From that day to the present, this statute
has not given any new definition of murder, but permits that
to remain as it was at common law. The statute merely
selects from all murders denounced by common law those
deemed most heinous by reason of the mode of their perpe-
tration and classifies them as murder in the first degree, for
which a greater punishment is prescribed.
Davis, 290 S.E.2d at 588 (emphasis added) (citations omitted);
see
State v. Streeton, 56 S.E.2d 649, 652 (N.C. 1949) (noting that "the
statute . . . dividing murder into two degrees . . . does not give any
new definition of murder, but permits that to remain as it was at com-
mon law").
In view of these authorities, it is abundantly clear that under North
Carolina law, there is only one common law crime of murder, which
by statute is divided into two degrees. Accordingly, just as in
Davis
v. Territory of Utah and
Bergemann, a short-form indictment that
alleges the elements of common law murder is sufficient to satisfy the
demands of the Sixth and Fourteenth Amendments. 6666 We therefore
____________________________________________________________
6666 It is true that in several instances the North Carolina Supreme Court
has used the term "elements" to refer to those factors that distinguish first
degree murder from second degree murder.
See, e.g.,
Fuller, 19 S.E. at
802 (noting that "premeditation and deliberation . . . are essential ele-
ments of the higher crime"). In particular, Hartman points to
State v. Jer-
rett, 307 S.E.2d 339, 350 (N.C. 1983) (stating that "[t]he Legislature may
prescribe a form of indictment sufficient to allege an offense even though
not all of the elements of a particular crime are required to be alleged,"
and citing N.C. Gen. Stat. § 15-144 as an example), and
State v. Lowe,
247 S.E.2d 878, 882-83 (N.C. 1978) (characterizing premeditation as an
13

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conclude that the decision of the North Carolina Supreme Court
rejecting Hartman's challenge to his indictment was neither contrary
to, nor an unreasonable application of, clearly established Supreme
Court precedent.
III.
For the reasons set forth above, we affirm the denial of habeas
relief.
AFFIRMED
____________________________________________________________
"element" of first degree murder, stating that premeditation need not be
alleged in an indictment for first degree murder, and concluding that pre-
vious cases "implicitly affirm[ed] the power of the legislature to relieve
the State of the common law requirement that every element of the
offense be alleged"). The fact that the North Carolina courts have used
the term "elements," rather than some other word, to describe those fac-
tors distinguishing first and second degree murder does not, in the face
of the specific statements in
Fuller and
Davis, persuade us that the divi-
sion of murder into degrees abolished the common law crime of murder.
Our conclusion that there is but one offense of common law murder
in North Carolina is also fatal to Hartman’s claim that subject matter
jurisdiction is not established unless all the elements of a crime are
alleged in the charging document.
14

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