context: Additionally, circuits other than the First Circuit have ruled clearly that federal due process requires a lesser included offense instruction in non-capital cases.
citation_a.signal: but see
citation_a.identifier: 609 F.2d 756, 758
citation_a.parenthetical: holding that "a state trial court judge's failure to instruct on a lesser included offense is not a federal constitutional matter"
citation_a.sentence: But see Easter v. Estelle, 609 F.2d 756, 758 (5th Cir.1980) (holding that “a state trial court judge’s failure to instruct on a lesser included offense is not a federal constitutional matter”) (citations omitted); Nichols v. Gagnon, 710 F.2d 1267, 1269-72 (7th Cir.1983); Cooper v. Campbell, 597 F.2d 628, 631 (8th Cir.1979), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979); James v. Reese, 546 F.2d 325, 327 (9th Cir.1976, cert. denied sub nom., Davis v. Greer, 459 U.S. 975, 103 S.Ct. 310, 74 L.Ed.2d 289 (1983); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir.1987).
citation_b.signal: see also
citation_b.parenthetical: Lesser included offense instruction of manslaughter is not required by due process if the evidence does not support it.
citation_b.sentence: Prather v. Rees, 822 F.2d 1418 (6th Cir.1987) (If habe-as petitioner was entitled to a lesser included offense instruction under state law, state trial court violated petitioner’s rights in refusing to give it, and habeas writ should issue); Ferrazza v. Mintzes, 735 F.2d 967, 968 (6th Cir.1984) (The Beck “principle is not limited to capital cases_”); see also United States v. Zapata-Tamallo, 833 F.2d 25, 28 (2d Cir.1987) (“Due process requires that a lesser included offense instruction be given [in narcotics possession case] if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.”) (quoting Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 [1982]); Bishop v. Mazurkiewicz, 634 F.2d 724 (3d Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981) (Lesser included offense instruction of manslaughter is not required by due process if the evidence does not support it.).