Burt

MEMORANDUM **

Burt was convicted in state court of second-degree murder, after a trial at which he claimed self-defense. He claims that his trial counsel was ineffective for failing to call two witnesses to testify in his defense. The district court denied his ha-beas petition, and we affirm.

1. We review under the Antiterrorism and Effective Death Penalty Act (“AED-PA”) the state court’s determination that Burt failed to make a prima facie showing of prejudice on his ineffectiveness claim. Burt is correct that, because the state court made no findings of fact, we need not defer under 28 U.S.C. § 2254 (d)(2) or (e)(1) of AEDPA. But § 2254(d)(1) applies to purely legal rulings, and the state court’s determination that prejudice was not made out even if one assumes the *24 truth of Burt’s factual submissions is such a ruling. That some additional, but not substantially different, evidence was revealed during the federal evidentiary hearing does not impact our standard of review where, as here, the relevant evidence was presented to the state court and presumed true. Cf. Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002) (“AEDPA deference does not apply to Killian’s perjury claim…

dissenting:

I cannot agree with the majority that the failure on the part of Burt’s trial counsel to introduce testimony from Edward Lee was nonprejudicial. In my view, the majority’s assertion that “Lee’s testimony would have bolstered Burt’s self-defense testimony only slightly ” misreads the record in this case and misperceives the nature of circumstantial evidence. Maj. Op. at 24 (emphasis added). As the only person who would have provided support for Burt’s testimony that Timothy Orange-Jackson, the decedent, had a gun at the time of the shooting, Edward Lee was hardly an inconsequential witness and the failure to call him was surely prejudicial.

Burt’s sole defense was that he shot Orange-Jackson to protect himself after he saw Orange-Jackson reaching for a gun in his waistband. However, none of the trial witnesses, other than Burt himself, “made ... reference to Mr. Orange-Jackson holding a firearm.” In re Burt, No. B155787, slip op. at 3 (Cal.Ct.App. Dec. 5, 2002). Nor was any gun found at the scene. 1 This gap in Burt’s defense was significant, and the prosecutor exploited it in closing argument, saying, “No one saw another gun. Why? Because the defendant is making that…