                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ISAAC JACKSON STROUD,                  
               Petitioner-Appellant,
                 v.
                                                  No. 05-17
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
               Respondent-Appellee.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                       (CA-01-582-1-WLO)

                      Argued: September 19, 2006

                      Decided: October 23, 2006

  Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.



Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Traxler joined.


                             COUNSEL

ARGUED: Marilyn Gerk Ozer, William F. W. Massengale,
MASSENGALE & OZER, Chapel Hill, North Carolina, for Appel-
lant. Jonathan Porter Babb, Sr., NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Roy Cooper, Attorney General of North Carolina, Raleigh,
North Carolina, for Appellee.
2                           STROUD v. POLK
                              OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   A North Carolina jury convicted Isaac Jackson Stroud of first
degree murder and recommended that he be sentenced to death.
Stroud challenged his conviction and resulting death sentence in state
court, unsuccessfully pursuing both a direct appeal and post-
conviction relief. Stroud then filed this petition for a writ of habeas
corpus in federal court. The district court denied habeas relief and
denied Stroud’s motion for a certificate of appealability. We, how-
ever, granted a certificate of appealability as to one issue, involving
his challenge to the state court’s rejection of his claim that North Car-
olina’s "short-form" murder indictment provided inadequate notice
that he could be convicted of first degree murder on a theory of tor-
ture. For the reasons that follow, we affirm the district court’s dis-
missal of his habeas petition.

                                   I.

   North Carolina indicted Stroud using its "short-form" murder
indictment, which simply charged that he "unlawfully, willfully and
feloniously and of malice aforethought did kill and murder" his long-
time girlfriend, Jocelyn Mitchell. The indictment noted on its face that
it was sufficient to charge both first and second degree murder and
cited to both the statute authorizing the short form, see N.C. Gen.
Stat. § 15-144 (1983), and the state’s murder statute, see N.C. Gen.
Stat. § 14-17 (Cum. Supp. 1991).

  The Supreme Court of North Carolina summarized the evidence
presented at Stroud’s trial:

       At trial, the State presented evidence tending to show that
    Jocelyn Mitchell died on 1 May 1993 from dozens of blunt
    force injuries to her body. Defendant [Stroud] was in the
    apartment with the victim the night of the beating. John
    McPhatter, the defendant’s next-door neighbor, and
    McPhatter’s girlfriend, Debra Harper, each testified that on
    1 May 1993, between 12:30 and 1:30 a.m., they awoke to
                      STROUD v. POLK                            3
a loud thump from defendant’s apartment. McPhatter and
Harper also heard the defendant arguing and the victim talk-
ing and crying. They specifically heard the defendant say,
"You shouldn’t have gone to that party," and heard the vic-
tim say, "Look what you’ve done to my face." McPhatter
and Harper testified that as the night went on, the defendant
continued to argue, but the victim stopped talking and only
cried. McPhatter testified that when he left his apartment at
5:30 a.m., he could still hear the defendant arguing and the
victim crying. Similarly, when Harper left the apartment
between 6:00 and 6:30 a.m., she could still hear the defen-
dant arguing and the victim "whimpering." Linda Baldwin,
an upstairs neighbor, testified that by 7:30 a.m., there were
no noises coming from the apartment occupied by the defen-
dant and Mitchell.

  Approximately seven hours later, the defendant called
911 from his apartment. He told the dispatcher that Mitchell
had collapsed, that he could not wake her and that she was
breathing lightly. The victim was not breathing when
paramedics arrived, she had no pulse and her neck and arms
were stiff. Defendant told the paramedics that Mitchell had
been assaulted around 6:00 p.m. the night before at the
school where she was employed as a teacher. The parame-
dics called the police.

   Officers M.L. Hayes and J.A. Pickett, Jr., of the Durham
Police Department arrived at the defendant’s apartment
around 3:00 p.m. The defendant told Officer Hayes that he
and Mitchell had been fighting all night. Defendant also told
the officers that Mitchell had come home around 8:00 p.m.
and stated that she had been attacked and could not breathe.
At trial, however, the State presented evidence that at about
8:00 p.m., Mitchell was seen parking her car and that she
looked normal, had no visible injuries, was not bleeding and
had no trouble walking. The State also presented evidence
from a co-worker who observed Mitchell shopping at a gro-
cery store around 11:55 p.m. The co-worker noticed nothing
strange about Mitchell’s appearance or actions and testified
4                          STROUD v. POLK
    that Mitchell was not crying and appeared to be in good
    health.

       Dr. John Butts, Chief Medical Examiner of the State of
    North Carolina, performed an autopsy on the victim. Dr.
    Butts’ examination revealed, among other injuries, bruising
    on either side of the eyes, behind the right ear, on the lower
    part of the neck and over the front part of the skull. There
    was a laceration on the top of the head that extended into the
    deeper skin tissue that covers the skull. There were multiple
    bruises on the upper and mid-back, as well as extensive
    bruising of the right side and back, upper left arm and
    elbow, buttocks, back of the right thigh and all along the
    front part of the legs. The victim’s skin was torn and
    scratched in several places. One back left rib was broken in
    two places, and ribs eight through eleven on the right side
    in the back were broken. One of the victim’s ribs punctured
    the right lung, causing it to collapse and causing bleeding
    into the chest cavity. Dr. Butts characterized the wounds to
    the hands and forearms as defensive wounds from fending
    off her assailant’s blows.

       Dr. Butts testified that, in his opinion, Jocelyn Mitchell
    was struck dozens of times, causing her tissues to rupture
    and bleed into the muscles and fat beneath her skin. Further,
    some of her fat was broken up by the blunt-force trauma.
    The fat liquified and flowed into the victim’s lungs, causing
    hypoxia, a lack of oxygen to the tissues. The overall process
    of internal bleeding, loss of blood to the tissues, collapse of
    the lung and fat in the lungs gradually resulted in loss of
    consciousness, coma and then death. Dr. Butts further testi-
    fied that the victim’s injuries would have been very painful,
    would have affected the victim’s ability to move or walk
    and eventually would have incapacitated her.

State v. Stroud, 478 S.E.2d 476, 477-78 (N.C. 1996).

  At the conclusion of Stroud’s trial, the judge charged the jury with
determining whether Stroud committed murder, in either the first or
second degree, and kidnapping in the second degree. The judge
                            STROUD v. POLK                              5
instructed the jury that it could find Stroud guilty of first degree mur-
der under three theories: (1) "[o]n the basis of malice, premeditation
and deliberation," (2) "[u]nder the first degree felony murder rule," or
(3) "[o]n the basis of first degree murder by torture." The judge
explained that conviction of murder by torture requires proof beyond
a reasonable doubt that (1) the defendant intentionally tortured the
victim, and (2) the torture proximately caused the victim’s death. He
also instructed the jury that "[t]orture is the course of conduct by a
person which intentionally inflicts grievous pain and suffering upon
another for the purpose of punishment, persuasion, or sadistic plea-
sure."

   The jury found Stroud guilty of first degree murder and second
degree kidnapping. In a special verdict, the jury indicated that it based
its murder verdict on felony murder and torture — it did not convict
Stroud on "the basis of malice, premeditation and deliberation."1 Fol-
lowing the jury’s recommendation, the judge sentenced Stroud to
death.

   Stroud appealed. The Supreme Court of North Carolina affirmed
the convictions and sentence, Stroud, 478 S.E.2d at 481, 483, and the
Supreme Court of the United States denied Stroud’s petition for writ
of certiorari. Stroud v. North Carolina, 522 U.S. 826 (1997). A North
Carolina court denied Stroud post-conviction relief. Stroud then filed
this petition for a writ of habeas corpus, which the federal district
court denied. Concluding that Stroud had "made a substantial show-
ing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2)
(2000), with respect to the state court’s denial of his challenge to the
adequacy of notice provided by the short-form murder indictment, we
granted Stroud a certificate of appealability as to this issue.

  1
   Stroud contends, without contradiction from the State, that despite his
conviction for felony murder and kidnapping, the asserted deficient
notice of murder by torture prejudiced him because "[i]f the jurors had
not had the choice of murder by torture, under North Carolina law the
kidnapping charge could not have been used as an aggravator in the sen-
tencing phase." Brief of Petitioner at 59.
6                               STROUD v. POLK
                                       II.

  Stroud asserts that, in violation of the Sixth and Fourteenth
Amendments, he "had no notice in pre-trial hearings" or "during trial
before the charge conference . . . that he could be convicted of murder
by torture." Reply Brief at 3.

   The state court, on post-conviction review, rejected this claim on
the merits with little discussion. Under federal law, we too must reject
this claim unless the state court’s "adjudication of the claim . . .
resulted in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as determined by
the Supreme Court of the United States," or "resulted in a decision
that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." 28 U.S.C.
§ 2254(d) (2000). Given this stringent standard of review, Stroud’s
claim fails.

                                       A.

   The State maintains that Stroud’s sole challenge is to the indict-
ment’s failure to include the elements of murder by torture. See
Apprendi v. New Jersey, 530 U.S. 466 (2000); Jones v. United States,
526 U.S. 227 (1999) (holding that elements of a crime must be
charged in the indictment and proven beyond a reasonable doubt).
Hartman v. Lee, 283 F.3d 190 (4th Cir. 2002), forecloses that chal-
lenge. There we held that because "under North Carolina law, there
is only one common law crime of murder, which by statute is divided
into two degrees, . . . a short-form indictment that alleges the elements
of common law murder is sufficient to satisfy the demands of the
Sixth and Fourteenth Amendments." Id. at 198-99; see also Allen v.
Lee, 366 F.3d 319, 323-24 (4th Cir. 2004) (en banc).2
    2
     In 1893, the State codified the common law crime of murder:
        All murder which shall be perpetrated by means of poison, lying
        in wait, imprisonment, starving, torture, or by any other kind of
        wilful, deliberate and premeditated killing, or which shall be
        committed in the perpetration or attempt to perpetuate [perpe-
        trate] [enumerated felonies] shall be deemed to be murder in the
                            STROUD v. POLK                               7
   Although neither Hartman nor Allen involved convictions based on
murder by torture, Hartman’s reasoning inescapably controls such
convictions. In Hartman, after careful review of relevant state cases,
we rejected the argument that first and second degree murder are "dis-
tinct" crimes in North Carolina. 283 F.3d at 194. We concluded that
the North Carolina legislature, like those in other states, codified "the
single, common law crime of murder into two degrees without creat-
ing any new offense." Id. at 198. We held that the short-form indict-
ment satisfied constitutional requirements because it listed all of the
elements of the only murder offense recognized under North Carolina
law. Id. at 198-99. Thus, premeditation, the "element" that Hartman
contended had to be charged in the indictment, merely constituted a
means of committing the "single common law crime of murder," not
an element of a separate offense. Id. at 198-99 & n.6. Applying the
Hartman rationale here, we must similarly hold that under North Car-
olina law, murder by torture is just another means of committing "the
single common law crime of murder."

   Consequently, to the extent that Stroud challenges the state court’s
rejection of his claim that the indictment omitted an "element" of an
offense, his contention fails. The state court’s rejection of that claim
was neither contrary to, nor an unreasonable application of, clearly
established federal law. The indictment stated every element of the
charged offense — common law murder — and that is all that is nec-
essary.

                                   B.

  Stroud, however, also poses a somewhat different argument. He
seeks to rely on fundamental due process principles set forth by the
Supreme Court, which we reiterated in Hartman, but found not to

    first degree. . . . All other kinds of murder shall be deemed mur-
    der in the second degree . . . .
Act of Feb. 11, 1893, §§ 1-2, 1893 N.C. Sess. Laws 76 (first alteration
in the original). At the same time, the legislature preserved the short-
form indictment now set forth in N.C. Gen. Stat. § 15-144. See State v.
Kirksey, 42 S.E.2d 613, 615 (1947) (quoting Act of Feb. 11, 1893, § 3,
1893 N.C. Sess. Laws at 76-77).
8                            STROUD v. POLK
assist Hartman himself. Stroud argues that these principles govern his
case and render the North Carolina court’s rejection of his post-
conviction claim unreasonable under clearly established federal law.

   In Hartman, we affirmed that "[e]lementary principles of due pro-
cess require that an accused be informed of the specific charge against
him," 283 F.3d at 194 (citing Cole v. Arkansas, 333 U.S. 196, 201
(1948)), and that "‘[a] person’s right to reasonable notice of a charge
against him . . . [is] basic in our system of jurisprudence,’" id. (quot-
ing In re Oliver, 333 U.S. 257, 273 (1948)). Reasonable notice "suffi-
ciently apprises the defendant of what he must be prepared to meet."
Russell v. United States, 369 U.S. 749, 763 (1962) (internal quotation
marks omitted) (evaluating indictment). It has long been "fundamen-
tal in the law of criminal procedure . . . that the accused must be
apprised . . . with reasonable certainty . . . of the nature of the accusa-
tion against him, to the end that he may prepare his defence." United
States v. Simmons, 96 U.S. 360, 362 (1878) (evaluating indictment).
We took great care in Hartman to stress that our holding did not
undermine these fundamental principles.

   In doing so, we noted that Hartman’s claim was "entirely formalis-
tic in nature" because he did not "contend, nor could he, that he did
not receive actual notice that the State sought to convict him of first
degree murder," only that the short-form indictment failed to provide
such notice. Hartman, 283 F.3d at 194 n.3. Stroud seeks to distinguish
his case on the ground that, unlike Hartman, his claim is not "entirely
[or at all] formalistic in nature." Stroud contends that he lacked actual
notice that he could be convicted of first degree murder on the basis
of murder by torture. He claims surprise that materially prejudiced his
opportunity to defend himself and compromised the reliability of the
truth-seeking process. See Reply Brief at 24-28 ("As [Stroud’s] attor-
neys [were] able to convince the jurors [Stroud] was not guilty of pre-
meditation and deliberation, with adequate notice and preparation
they may have been able to convince the jurors [Stroud] was also not
guilty of murder by torture."). In sum, Stroud asserts that, unlike Hart-
man, his claim does not rest on the technicalities of short-form indict-
ments, but on whether the short-form indictment would have
"sufficiently apprise[d]" a reasonable person in his position "of what
he must be prepared to meet." Russell, 369 U.S. at 764; see also id.
at 763-64 (suggesting that when evaluating the adequacy of notice
                            STROUD v. POLK                            9
contained in an indictment, substance, not form, is the focus of the
underlying inquiry).

   This argument has some appeal. See Givens v. Housewright, 786
F.2d 1378, 1379-81 (9th Cir. 1986) (granting writ on similar facts, but
under a prior statute providing a more liberal standard of habeas
review). Prior to today, we have upheld the constitutionality of North
Carolina’s short-form indictment only when the State has charged the
defendant with first degree murder on theories of premeditation or fel-
ony murder. Prosecution on these theories is sufficiently common-
place that a reasonable defendant charged with common law murder
would foresee that he might have to defend against them. In contrast,
Stroud notes that prosecutions for murder by torture were exceedingly
rare in North Carolina at the time of his trial, and that although two
years passed between his indictment and trial, he received no notice
prior to the jury charge conference at trial that he could be convicted
on a theory of murder by torture. Indeed, the State had offered him
a written plea agreement (which he did not accept) permitting him to
avoid a death sentence by pleading guilty to second degree murder
(necessarily excluding torture) and first degree kidnapping and serv-
ing a sentence of life plus forty years. Stroud contends that in these
circumstances the short-form indictment failed to provide a reason-
able defendant with constitutionally adequate notice of the need to
defend against a prosecution of murder by torture.

   Stroud, however, ignores a critical fact: the short-form indictment
did cite the State’s murder statute and thus notify Stroud — at least
summarily — that he needed to defend against a charge of first degree
murder on any or all grounds. See N.C. Gen. Stat. § 14-17 (Cum.
Supp. 1991). What Stroud seems to ask us to hold is that the Constitu-
tion requires the prosecution to provide a defendant notice of the first
degree murder theory it intends to pursue. In Hartman, though
addressing more routine circumstances, we expressly rejected this
contention, explaining that "the Constitution does not require the
method by which the crime was committed to be alleged in the indict-
ment." 283 F.3d at 194 n.3 (citing Martin v. Kassulke, 970 F.2d 1539,
1543 (6th Cir. 1992)).

   In any event, Stroud cites no Supreme Court precedent that
requires adoption of his position. As noted above, the Supreme Court
10                           STROUD v. POLK
has held that Due Process and the Sixth Amendment require notice
that is sufficient to allow a reasonable defendant to prepare for trial.
See Russell, 369 U.S. at 764; In re Oliver, 333 U.S. at 273; Cole, 333
U.S. at 201; Simmons, 96 U.S. at 362. We recognize that Apprendi
and its progeny may indicate that at some future time the Supreme
Court will determine that the Constitution requires more notice than
the indictment provided Stroud — but the Court has not yet done that.

   We note that Lankford v. Idaho, 500 U.S. 110 (1991), on which
Stroud most heavily relies, involves a somewhat similar claim of lack
of notice in a capital case based in part on a rejected plea offer. See
id. at 111, 119-21. But the holding in Lankford — that in the "unique
circumstance" of that case (which differs markedly from that at hand)
the petitioner received inadequate notice that he might receive a death
sentence, see id. at 111, 127 — does not apply to or assist Stroud.
Stroud indisputably did receive notice that he faced a death sentence.

   The lack of a controlling Supreme Court precedent is fatal to
Stroud’s habeas claim before us, for the Court has directed that only
"holdings, as opposed to . . . dicta" constitute "‘clearly established
Federal law, as determined by the Supreme Court of the United
States,’" for federal habeas purposes. See Williams v. Taylor, 529
U.S. 362, 412 (2000) (quoting 28 U.S.C. § 2254(d)(1) (1994 ed.,
Supp. III)). It might be wise to extend Lankford’s rationale to cover
circumstances like Stroud’s — but we must wait for the Supreme
Court to make that choice.

  Absent factual error (which is not at issue here), only if a state
court renders a decision that is "contrary to" or "involve[s] an unrea-
sonable application" of a Supreme Court holding can a petitioner
obtain federal habeas relief. Id.3 We cannot say the state court’s rejec-
  3
   Congress enacted this rigorous standard when it amended § 2254 in
1996 as part of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214. Notably, when the Ninth Cir-
cuit granted habeas relief on a claim similar to Stroud’s, it did so under
§ 2254 as it existed prior to this amendment. See Givens, 786 F.2d at
1380-81. The prior version of § 2254 allowed for "independent review"
by the federal courts. See Williams, 529 U.S. at 403. For this reason, Giv-
ens provides little aid to Stroud.
                            STROUD v. POLK                           11
tion of Stroud’s claim was "contrary to," or "involved an unreason-
able application" of, clearly established federal law, as determined by
the Supreme Court.

                                  III.

   For all of these reasons, we affirm the district court’s dismissal of
Stroud’s petition for writ of habeas corpus.

                                                           AFFIRMED
