Angelo McMullan v. Raymond Booker

I concur with the judgment of the lead opinion, but write separately because the lead opinion contains a substantial amount of dicta that I do not endorse.

This Court is unable to grant McMullan habeas relief under 28 U.S.C. § 2254(d)(1) because the Supreme Court has never held that the Due Process Clause requires a lesser-included offense instruction in a non-capital case. See Beck v. Alabama, 447 U.S. 625, 638 n. 14, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (declining to decide whether the Due Process Clause would require giving lesser-included offense instructions in a non-capital case). The…