Johnny Ray Bagby v. Dewey Sowders, Warden, Northpoint Training Center

CONTIE, Senior Circuit Judge,

joined by KEITH and NATHANIEL R. JONES, JJ., dissenting.

I adhere to the views expressed in the original panel opinion in the instant case, which is reported at 853 F.2d 1340. Accordingly, I respectfully dissent.

The original panel decision held that a state court’s failure to instruct the jury on lesser included offenses, even in a non-capital case, raises a constitutional question that is cognizable on habeas corpus review. Based upon the Supreme Court’s opinions in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Hopper v. Evans, 456 U.S.…