735 F.2d 967, 968 (6th Cir.1984) (The Beck “principle is not limited to capital cases_”); see also United States v. Zapata-Tamallo, 833 F.2d 25, 28 (2d Cir.1987) (“Due process requires that a lesser included offense instruction be given [in narcotics possession case] if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.”) (quoting Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 [1982]); Bishop v. Mazurkiewicz, 634 F.2d 724 (3d Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981) (Lesser included offense instruction of manslaughter is not required by due process if the evidence does not support it.). But see Easter v. Estelle, 609 F.2d 756, 758 (5th Cir.1980) (<HOLDING>) (citations omitted); Nichols v. Gagnon, 710
holding that an offense is factually lesser included if the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense holding that the trial court did not err in refusing to instruct the jury on trespass as a lesser included offense of breaking and entering because appellant failed to advise the court which of the numerous trespass statutes he considered to be lesser included to the offense charged holding that a state trial court judges failure to instruct on a lesser included offense is not a federal constitutional matter recognizing that attempts are category two lesser included offenses and that the judge should not instruct on an attempt if the evidence only supports a completed offense holding that aggravated battery is a lesser included offense of manslaughter