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Julian Lopez v. Thurmer, 7th Cir No. 08-2110, 2/5/10

7th Circuit decision, denying relief in: Wis COA No. 2003AP1885

Habeas – Effective Assistance of Counsel – Lesser Included Instruction
Given state court conclusion that Lopez was not entitled to lesser offense instruction on felony-murder, counsel could not have been ineffective for failing to request the instruction. Nor was the absence of the instruction “a fundamental miscarriage of justice,” because there is no showing “that Lopez probably would have been acquitted of first-degree intentional murder.”