Joseph Rice v. Robert Hoke, Warden, Eastern Correctional Facility, and Robert Abrams, Attorney General of the State of New York

OAKES, Circuit Judge:

Joseph Rice appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Rice sought to have set aside a 1980 judgment of the Supreme Court, New York County, James Leff, Judge, convicting him of murder in the second degree, N.Y.Penal Law § 125.25 (McKinney 1987), and assault in the first degree, N.Y.Penal Law § 120.10 (McKinney 1987). He claimed that the trial court erred by failing to instruct the jury on the lesser included…