FILED
NOT FOR PUBLICATION AUG 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESSE CLYDE BURLESON, No. 09-17569
Petitioner - Appellant, D.C. No. 4:08-cv-01853-SBA
v.
MEMORANDUM *
DIRECTOR OF THE CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted July 19, 2012 **
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
State prisoner Jesse Clyde Burleson appeals the district court’s dismissal of
his habeas petition as untimely. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“[A]ctual innocence constitutes an equitable exception to AEDPA’s
limitations period . . . .” Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en
banc). A credible claim of actual innocence “requires a petitioner to support his
allegations of constitutional error with new reliable evidence . . . that was not
presented at trial.” Id. at 938 (internal quotation marks omitted). Then, considering
the total record, “the court makes a probabilistic determination” about whether
every juror, properly instructed, would have reasonable doubt in the light of the
new evidence. Id. (internal quotation marks omitted).
Burleson’s assertion that he is innocent of murder while conceding his
culpability to manslaughter is a variant on the actual innocence exception. We need
not decide whether he can qualify as “actually innocent” by claiming instead guilt
of a lesser offense. His factual claim falls far short of the exacting standard
demanded by the actual innocence exception for at least two reasons.
First, the alternate trial strategy posited by Burleson, a theory of imperfect
self-defense, would have required him to persuade the jury that he actually
believed he was in imminent mortal peril. In re Christian S., 872 P.2d 574, 583
(Cal. 1994). But he can prove neither actuality of fear nor imminency of harm. He
went a block and a half away from the reported location of men he believed were
coming to kill him, got a gun, called for assistance, repeatedly went outside even
2
after seeing the men nearby, and “encountered” his victims before shooting and
killing one of them as he ran away. Based on that factual scenario, it is unlikely
that every juror would have concluded that Burleson acted in self-defense, even if
imperfect.
Second, Burleson’s new evidence was neither new nor reliable. Richardson
did not add anything to what Burleson already knew. Nor did he add much
credibility to what Burleson could have said himself. Richardson was Burleson’s
friend and they had spent the day of the shooting together. Richardson was
arrested fleeing the scene of the murder, raising suspicions regarding his own
involvement. It would not have been difficult to impeach Richardson’s testimony.
In light of the total record, it is highly unlikely that no juror would have
voted to convict Burleson of murder. As he cannot qualify for the equitable
exception to the limitations period, his habeas petition was untimely.
AFFIRMED.
3