FILED

DEC 04 2012

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

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 Northern District of California, v. Oakland

DIRECTOR OF THE CALIFORNIA ORDER AMENDING

DEPARTMENT OF CORRECTIONS MEMORANDUM AND

AND REHABILITATION, DENYING PETITION FOR

REHEARING

Respondent - Appellee.

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 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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