Brunn

MEMORANDUM 2

Brunn challenges the district court’s denial of his habeas corpus petition on his claims of vindictive prosecution and instructional error.

We have reviewed Brunn’s claim for vindictive prosecution, and we find that it does not merit habeas relief. By adding additional counts, the prosecutor was validly exercising his prosecutorial discretion.

We have also reviewed Brunn’s claim for instructional error, and we find that it also *697 does not merit habeas relief. Although it would have been better for the trial court to have instructed the jury on the underlying charge of manufacturing methamphetamines when instructing the jury on the offense of conspiracy to manufacture methamphetamines, reading the jury instructions as a whole, the error was harmless.

Therefore, Brunn is not entitled to habeas relief. We affirm the district court’s decision denying Brunn’s habeas petition.

. This disposition is not appropriate for publication and may not be cited in or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.