Jesse Clyde Burleson v. Director of the California Department of Corrections and Rehabilitation

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE CLYDE BURLESON,
Petitioner - Appellant,
v.
DIRECTOR OF THE CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Respondent - Appellee.
No. 09-17569
D.C. No. 4:08-cv-01853-SBA
Northern District of California,
Oakland
ORDER AMENDING
MEMORANDUM AND
DENYING PETITION FOR
REHEARING
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
The memorandum disposition filed on August 3, 2012, is amended as
follows:
Replace the paragraph at the bottom of page 2 and at the top of page 3, with
the following:
First, the alternate trial strategy posited by Burleson, a
theory of imperfect self-defense, would have required the
jury to conclude that he actually believed he was in imminent
mortal peril. In re Christian S., 872 P.2d 574, 583 (Cal. 1994).
But the evidence demonstrated that 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 after seeing the men nearby, and “encountered” his victims
FILED
DEC 04 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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.
With the foregoing amendment to the memorandum disposition,
Petitioner-Appellant’s Petition for Panel Rehearing, filed on September 17, 2012,
is DENIED. No further petitions for rehearing will be accepted in this case.

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