Pizzuto v. Arave, 97-99017.

• Citation: 385 F.3d 1247
• Decision Date: 20 October 2004
• Docket Number: No. 97-99017.,97-99017.
• Parties: Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

385 F.3d 1247

Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee.

No. 97-99017.

United States Court of Appeals, Ninth Circuit.

Filed October 20, 2004.

Joan M. Fisher, Bruce D. Livingston, Federal Public Defender, Moscow, ID, for Petitioner-Appellant.

Robert H. Gombiner, Federal Public Defender's Office Western District of Washington, Seattle, WA, Michael A. Henderson, Asst. Atty. Gen., Kenneth Robins, L. Lamont Anderson, Office of Attorney General, Boise, ID, for Respondent-Appellee.

Before B. FLETCHER, RYMER, and GOULD, Circuit Judges.

ORDER

The dissenting opinion of Judge B. Fletcher filed February 6, 2002, and cited at 280 F.3d 949, 977 (9th Cir.2002) (slip op. at 1866), is amended as follows:

(1) The first full paragraph at slip op. 1866 is deleted.

(2) The first sentence of the second paragraph at slip op. at 1866 is deleted.

(3) The phrase "With that caveat," in the second sentence of the second paragraph at slip op. 1866 is deleted.

(4) Slip op. 1893, second paragraph, tenth line: add "(overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002))" after Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).

(5) Slip op. 1899, second full paragraph, third line: add footnote reference 15 after the word mitigating. The footnote shall read as follows:

15. Currently before the Idaho state court is Pizzuto's petition for habeas relief based on his claim that under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), his mental retardation precludes imposition of the death penalty and execution. Pizzuto's IQ is 72. Atkins notes that an "IQ between 70 and 75 or lower ... is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition." Id. at 309 n. 5, 122 S.Ct. 2242. The Court held that execution of such persons "is excessive" under the Eighth Amendment "and that the Constitution `places a substantive restriction on the State's power to take the life' of a mentally retarded offender." Id. at 321, 122 S.Ct. 2242 (citation omitted). I would stay further proceedings pending the outcome of ongoing state proceedings. The majority has denied a stay and declines even to require the parties to advise us of the status of the state proceedings.

The majority opinion has not been amended.

BETTY B. FLETCHER, Circuit Judge, concurring in part and dissenting in part:

I concur in the results reached by the majority with respect to Pizzuto's claim of ineffective assistance of counsel on appeal, his challenge to the Idaho Supreme Court's proportionality review, and his request for an evidentiary hearing on judicial bias, the trial judge's reliance on undisclosed information at sentencing, and ineffective assistance of counsel at trial. I respectfully dissent from the majority's opinion with respect to Pizzuto's claim of ineffective assistance of counsel at sentencing, the violation of his Fifth and Sixth Amendment rights in his presentence interviews, the constitutionality of Idaho's "heinous, atrocious, or cruel" aggravating factor, and the trial court's reliance on unconstitutional, non-statutory aggravating factors.

I. Ineffective Assistance at Sentencing

As the majority correctly explains, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we must determine whether defense counsel's performance in the penalty phase of Pizzuto's trial was deficient and whether the deficiencies prejudiced the defense. For prejudice, the question is whether there is a reasonable probability that, but for counsel's unprofessional errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 694-95, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. Notably, the Supreme Court has made clear that prejudice for ineffective assistance need not be established by a preponderance of the evidence. Id. ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.").

The majority concludes that Pizzuto has failed to satisfy this two-prong test. However, to reach this conclusion, the majority relies on unsupported rationalizations and refuses to view the deficiencies asserted by Pizzuto as a whole. In view of all the deficiencies, defense counsel's representation fell below "an objective standard of reasonableness ... under prevailing professional norms," and there is a reasonable probability that, but for their errors, Pizzuto would have been sentenced to life rather than death. Id. at 688, 104 S.Ct. 2052.

A Failure to Challenge the State's Case in Aggravation

Under Idaho's capital sentencing law, a defendant convicted of first degree murder may not receive the death penalty unless the State establishes at least one of ten aggravating circumstances beyond a reasonable doubt. Idaho Code § 19-2515 (1984). Pizzuto's defense counsel, two attorneys wholly inexperienced in capital cases, failed to fulfill their constitutional duty to subject the State's case in aggravation to the meaningful adversarial testing that ensures a just result. Strickland, 466 U.S. at 686, 104 S.Ct. 2052 ("[C]ounsel's role in [a capital sentencing] proceeding is ... to ensure that the adversarial testing process works to produce a just result.").

Evidence was readily available to cast doubt on the existence of some of the aggravating factors asserted by the State. For example, the trial judge put particular emphasis on the fact that Pizzuto tied the victims before killing them in finding that the murders were "heinous, atrocious, and cruel" and demonstrated an "utter disregard for human life."¹ Yet Rice testified that he did not see the victims tied when he went into the cabin and shot Mr. Herndon, and Odom testified that he saw them tied up only after he had divided up the money and returned to the victims' cabin to dispose of the bodies. Also, the pathologist testified that he could not determine whether the bodies had been tied before or after death.

The majority argues that other evidence was sufficient to convince the trial court that Pizzuto had tied the Herndons prior to killing them. Pizzuto's sister testified that he bragged about tying up a man and woman and shooting the man; Roger Bacon testified that Pizzuto had tied him up and robbed him; and Lt. Paul Blubaum testified that Pizzuto told him he could get anything out of anyone by tying their ankles and then beating the bottom of their feet. However, the State's circumstantial evidence was not so overwhelming in light of the evidence that was available to the defense on this issue. Defense counsel might have raised a reasonable doubt in the trial judge's mind had they reminded the court of Odom, Rice, and the pathologist's testimony.²

Also, the State's theory that Pizzuto deserved the death penalty while his co-defendants did not depended primarily on the story told by Rice and Odom at trial. Therefore, defense counsel should have referenced the evidence from the guilt phase that showed Rice and Odom were not credible witnesses. During the guilt phase, defense counsel demonstrated that Rice and Odom had criminal records and used drugs. Defense counsel also exposed numerous inconsistencies in the stories told by Rice and Odom. They contradicted each other on many details such as the number of thumps they heard while Pizzuto was in the cabin and whether Pizzuto was wearing or carrying Mr. Herndon's boots when he emerged.

Rice and Odom gave conflicting testimony accusing each other of acts that each denied. Odom testified that prior to the murders Rice said he was going to dig graves. According to Odom, Rice tried to make him shoot Mr. Herndon in the head, and Rice complained that Mrs. Herndon was killed before he could have sex with her, which Rice denied. Odom accused Rice of taking money from Mrs. Herndon's purse, which Rice also denied. Rice, in turn, gave testimony that prior to the murders Odom suggested they jump a mining claim, kill the miner, and bury the body. He also testified that Odom held a gun on him and that Odom bragged, "That's the way they do things here in Idaho," after the murders.

In the guilt phase, defense counsel also demonstrated that Rice had lied repeatedly to the police. At various times, Rice (1) denied any involvement in the murders, (2) admitted to hitting Mr. Herndon in the head with a hammer, and (3) admitted to shooting Mr. Herndon. In his statements to the police, Rice repeatedly said that "they" committed the murders. He conceded that his statements to the police were not true, but he could not explain why he used the word "they" when talking about who committed the murders.

Additionally, evidence not introduced at the guilt phase was available to show Rice and Odom lacked credibility. There was evidence that Odom said to an acquaintance, after the murders but before the arrests, "Where I come from, when we find a narc, we just take them out and make them dig their own grave," and that Rice's lie detector test indicated he lied when he said he had no advance knowledge of the murders.³

Defense counsel also possessed records showing that Lt. Blubaum, a prosecution witness, believed Odom was the least trustworthy of the three co-defendants. However, defense counsel did not bother to cross-examine Lt. Blubaum at all and failed to present available evidence that other jailers believed Odom was more dangerous than Pizzuto, was a manipulator, had no remorse for the murders, and felt he had beaten the system. Such evidence would have defused Lt. Blubaum's testimony and cast more doubt on the credibility of Odom.

The majority argues that defense counsel's...