                                                                                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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