Robinson v. NC Attorney General ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDDIE ROBINSON, 
Petitioner-Appellant,
v.
NORTH CAROLINA ATTORNEY  No. 99-7530
GENERAL; DANIEL L. STIENEKE,
Director of North Carolina Prisons;
MICHAEL F. EASLEY,
Respondents-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Paul Trevor Sharp, Magistrate Judge.
(CA-99-53-1)
Submitted: November 16, 2000
Decided: December 7, 2000
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Michael F. Easley, Attorney
General, Clarence Joe DelForge, III, Assistant Attorney General,
Raleigh, North Carolina, for Appellees.
2 ROBINSON v. NORTH CAROLINA ATTORNEY GENERAL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Freddie Robinson appeals the district court’s order denying relief
on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.
2000). He contends that (1) the state trial court denied him due pro-
cess by failing to instruct the jury about a lesser-included offense and
(2) the district court abused its discretion in this action by refusing to
appoint counsel for Robinson. We granted a certificate of appeala-
bility as to the first issue. We now affirm in part and dismiss in part.
Robinson was convicted of felony larceny and other offenses. He
asserts that the trial court was constitutionally required to instruct the
jury about misdemeanor larceny, a lesser-included offense of felony
larceny. As Robinson concedes, however, the Supreme Court has
never held that due process requires lesser-included instructions in
non-capital state trials. See Beck v. Alabama, 447 U.S. 625, 638 n.14
(1980) (expressly reserving this issue). Moreover, a review of deci-
sions from other courts of appeals establishes that there is no consen-
sus on this question. Consequently, a decision in Robinson’s favor
would require the enunciation and retroactive application of a new
rule, in violation of § 2254(d)(1) and Teague v. Lane, 489 U.S. 288(1989). See Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (holding
that lesser-included claim was Teague-barred); Ramdass v. Angelone,
187 F.3d 396, 406 (4th Cir. 1999) (noting that § 2254(d)(1)’s retroac-
tivity limitation is more stringent than Teague’s), aff’d, 120 S. Ct.
2113 (2000). Accordingly, we affirm the district court’s order deny-
ing relief on this claim.
As for Robinson’s second claim, we have reviewed the record and
find no abuse of discretion in the refusal to appoint counsel. Accord-
ingly, we deny a certificate of appealability and dismiss Robinson’s
appeal as to this issue. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART