OpenJurist

982 F2d 527 Williams v. K Delo

982 F.2d 527

James Edward WILLIAMS, Plaintiff Appellant,
v.
Paul K. DELO, Defendant Appellee.

No. 91-2918.

United States Court of Appeals,
Eighth Circuit.

Submitted: September 17, 1992.
Filed: November 10, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.

PER CURIAM.

1

James Edward Williams appeals the district court's1 denial of his second petition for a writ of habeas corpus. Williams was convicted of capital murder in 1982 and sentenced to life in prison without possibility of parole for fifty years. He contends that the trial court's failure to instruct the jury on felony murder as a lesser included offense deprived him of his constitutional right to due process and equal protection. However, this contention is foreclosed by our decision in Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990), cert. denied, 111 S. Ct. 2896 (1991) (a case in which the defendant receives a life sentence is a noncapital case and "the failure to give a lesser included offense instruction in a noncapital case rarely, if ever, presents a constitutional question"). In addition, we note that Williams's equal protection argument was squarely rejected by this court in Blair v. Armontrout, 916 F.2d 1310, 1326-30 (8th Cir. 1990), cert. denied, 112 S. Ct. 89 (1991).

2

Accordingly, the judgment of the district court is affirmed.

1

The HONORABLE GEORGE F. GUNN, JR., United States District Judge for the Eastern District of Missouri, who adopted the Report and Recommendation of the HONORABLE DAVID D. NOCE, United States Magistrate Judge for the Eastern District of Missouri