MEMORANDUM**

Herman Gardner, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2254 petition for habeas corpus. Gardner was convicted of second degree murder for beating his brother to death with a baseball bat. He was sentenced to a determinant sentence of eleven years, with a consecutive indeterminant term of fifteen years to life. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and review de novo. Thomas v. Brewer, 945 F.2d 1119, 1122 (9th Cir.1991). We affirm.

In his petition, Gardner claimed that (1) the prosecutor was guilty of misconduct by arguing for a second degree murder conviction under a theory of both express and implied malice; (2) trial counsel was ineffective in failing to object to the prosecutor's improper argument; and (3) appellate counsel was ineffective in not properly addressing the prosecutor's implied malice argument on appeal. Gardner's claims lack merit.1

To demonstrate ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "Counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. In reviewing a collateral challenge based on a "trial-type" error, a federal court will not reverse a conviction unless the petitioner shows that the error " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). A "trial-type" error is one which occurs during the presentation of the case to the jury. Id. at 1717.

The standard of review on habeas corpus is whether a prosecutor's improper conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainright, 477 U.S. 168, 181 (1986) (quotation omitted). We hold there was no denial of due process to warrant habeas relief to the petitioner.

At petitioner's trial, the prosecutor argued for a second degree murder conviction based on both express and implied malice theories, even though the only instruction given to the jury on second degree murder required a finding of express malice.2 The prosecutor argued at length about express malice; his mention of implied malice was contained in ten lines of transcript.

The magistrate judge found that while the prosecutor should have argued only express malice, there was no evidence that the prosecutor intended to mislead the jury.3 Further, the reading of the prosecutor's argument as a whole did not lead to a conviction which was a denial of due process. See id.

Finally, even assuming error, the magistrate judge found that Gardner was not entitled to habeas relief because he did not show that the "trial-type" error, "had substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 113 S. Ct. at 1714. We agree.

Here, there was substantial evidence to show that Gardner killed his brother with express malice. Gardner brutally beat his brother with a baseball bat, delivering several blows to his back, head, and shoulders. While he was beating his brother Gardner stood over him and said: "Die, you mother fucker, die. I told you I was going to kill you." Gardner exited the bedroom, paced about, talked to house guests, and then re-entered the bedroom to deliver the fatal blows, stating: "Die, mother fucker, die. Look, he won't even die." These facts show an express intent to kill. Thus, appellant has not shown that he is entitled to habeas relief. See id.

Similarly, based on the above discussion, even assuming attorney error, we hold that appellant is unable to show a reasonable probability that the result would have been different. See Strickland, 466 U.S. at 687, 694 (to demonstrate ineffective assistance, defendant must show that counsel's deficient performance prejudiced his defense).

AFFIRMED.