Burleson v. Director of the California Department of Corrections & Rehabilitation

MEMORANDUM

State prisoner Jesse Clyde Burleson appeals the district court’s dismissal of his habeas petition as untimely. We affirm.

“[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 rehable 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…