                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ____________

                                   No. 00-2640EM
                                   ____________

Timothy Dickerson,                       *
                                         *
             Appellant,                  * On Appeal from the United
                                         * States District Court
      v.                                 * for the Eastern District
                                         * of Missouri
                                         *
Dave Dormire,                            * [Not To Be Published.]
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: March 12, 2001
                                  Filed: March 20, 2001
                                   ___________

Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
      Judges, and MONTGOMERY,1 District Judge.
                           ___________

PER CURIAM.


      This is a petition for habeas corpus under 28 U.S.C. § 2254, brought by a
prisoner in the custody of the State of Missouri. The petitioner claims that he is being
deprived of his liberty without due process of law because of the failure of the state

      1
      The Hon. Ann D. Montgomery, United States District Judge for the District of
Minnesota, sitting by designation.
trial court to instruct the jury on the lesser included offense of involuntary
manslaughter. The District Court2 denied relief, and we affirm.

       We have little to add to the well-reasoned opinion of the District Court. It is
sufficient to say that this Court has consistently held that "the failure to give a lesser
included offense instruction in a noncapital case rarely, if ever, presents a constitutional
question." Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990), cert. denied, 501 U.S.
1253 (1991). Under current law, in order to grant federal habeas relief, we would have
to say that the state courts' action in this case was contrary to, or an unreasonable
application of, "clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C. § 2254(d). The Supreme Court has never held that
due process requires the giving of lesser-included-offense instructions in noncapital
cases. Accordingly, relief must be denied in the present case.

       The judgment is affirmed.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




       2
        The Hon. Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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