Herman Gardner v. James Gomez, Director of Corrections Daniel E. Lungren

38 F.3d 1218 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Herman GARDNER, Petitioner-Appellant, v. James GOMEZ, Director of Corrections; Daniel E. Lungren, Respondents-Appellees. No. 94-55545. United States Court of Appeals, Ninth Circuit. Submitted Oct. 17, 1994. * Decided Oct. 21, 1994. Before: BROWNING, FARRIS, and LEAVY, Circuit Judges. 1 MEMORANDUM ** 2 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. 3 In his petition, Gardner claimed that (1) the prosecutor was guilty of misconduct by arguing for a second degree…