Dudley v. Ryan

ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

RICHARD G. STEARNS, District Judge.

I agree with Magistrate Judge Kelley’s Report and her conclusion that the state trial court’s refusal to give an instruction on larceny from the person as a lesser included offense of unarmed robbery did not violate petitioner’s due process rights (or any other right guaranteed by Federal law). See Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir.1982). Given the presentation of the facts at trial, the judge offered the only two options on which a rational jury could have made a finding of guilt — armed…