Does the failure of a trial court to instruct on lesser included offenses present a federal constitutional question?

In any event, "[u]nder the law of this circuit, the failure of a trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question." Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998). See also United States v. Rivera-Alonzo, 584 F.3d 829, 834 n. 3 (9th Cir. 2009) ("In the context of habeas corpus review of a state court conviction, we have stated that there is no clearly established federal constitutional right to lesser included instructions in non-capital cases.")