                                                                            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                            NOT FOR PUBLICATION                              AUG 03 2012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
