Pizzuto v. Blades

• Decision Date: 09 September 2013
• Docket Number: No. 12–99002.,12–99002.
• Citation: 729 F.3d 1211
• Parties: Gerald Ross PIZZUTO, Jr., Petitioner–Appellant, v. Randy BLADES, Warden, Idaho Maximum Security Institution, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

729 F.3d 1211

Gerald Ross PIZZUTO, Jr., Petitioner–Appellant,

v.Randy BLADES, Warden, Idaho Maximum Security Institution, Respondent–Appellee.

No. 12–99002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 27, 2013.

Filed Sept. 9, 2013.

Daniel J. Broderick, Federal Defender; Joseph Schlesinger and Joan M. Fisher (argued), Assistant Federal Defenders, Federal Defender of Eastern District of California, Sacramento, CA, for Petitioner–Appellant.

Lawrence G. Wasden, Attorney General of Idaho, and L. LaMont Anderson (argued), Deputy Attorney General, Capital Litigation Unit Chief, Boise, ID, for Respondent–Appellee.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 1:05–cv–00516–BLW.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Gerald Ross Pizzuto, Jr., appeals the district court's denial of his successive petition for a writ of habeas corpus, in which he sought relief based on the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held that the Eighth Amendment prohibits the execution of mentally retarded persons.¹ In response to Atkins, Idaho enacted a law prohibiting execution of mentally retarded criminals. Pizzuto challenges the Idaho Supreme Court's decision that his execution is not barred under that state law. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court's denial of Pizzuto's petition.

I

Pizzuto was convicted of two counts of first-degree murder, two counts of felony murder, one count of robbery, and one count of grand theft. The Idaho Supreme Court succinctly summarized what it considered key facts of the crime as follows:

Pizzuto approached [Berta Louise Herndon and her nephew, Delbert Dean Herndon] with a .22 caliber rifle as they arrived at their mountain cabin and made them enter the cabin. While inside, he tied the Her[n]dons' wrists behind their backs and bound their legs in order to steal their money. Some time later, he bludgeoned Berta Herndon to death with hammer blows to her head and killed Del Herndon by bludgeoning him in the head with a hammer and shooting him between the eyes. Pizzuto murdered the Her[n]dons just for the sake of killing and subsequently joked and bragged about the killings to his associates.

Pizzuto v. State, 146 Idaho 720, 202 P.3d 642, 645 (2008); see also Pizzuto v. Blades, 673 F.3d 1003, 1004 (9th Cir.2012). Pizzuto was sentenced to death for the murders.

Pizzuto's conviction and sentence were upheld on direct appeal, except for his robbery conviction, which the Idaho Supreme Court held was a lesser-included offense of felony murder and so merged with that conviction. See State v. Pizzuto, 119 Idaho 742, 810 P.2d 680, 695 (1991). Pizzuto's other convictions and his death sentence were upheld again on state and federal post-conviction review. See Pizzuto, 673 F.3d at 1007;see also Pizzuto v. State, 149 Idaho 155, 233 P.3d 86, 88–89 (2010) (reciting the case history).

In his fifth state petition for post-conviction review, relevant here, Pizzuto contended that his death sentence was prohibited by Atkins. See Pizzuto, 202 P.3d at 644. Pizzuto moved for summary judgment on that issue. But the state trial court granted summary judgment in favor of the State because (1) Pizzuto did not raise a genuine issue of material fact to support his claim of mental retardation and (2) the petition was untimely. Id. at 645–46.

The Idaho Supreme Court affirmed the grant of summary judgment to the State. To survive summary dismissal, Pizzuto had to present evidence establishing a prima facie case on each element of the claims on which he bore the burden of proof. Pizzuto, 202 P.3d at 650. The Idaho Supreme Court held that “Pizzuto had the burden of showing that at the time of his murders he was mentally retarded as defined in Idaho Code § 19–2515A(1)(a) and that his mental retardation occurred prior to his eighteenth birthday.” Id. at 655. But Pizzuto did not “create a genuine issue of material fact on each element of his claim” because he did not show that he “had an IQ of 70 or below at the time of the murders and prior to his eighteenth birthday.” Id. Pizzuto had introduced a verbal IQ test score of 72 and asserted that it should be interpreted as below 70 because the standard error of measurement for the IQ test was plus or minus five points. Id. at 651. But the court rejected this argument, concluding that “the legislature did not require that the IQ score be within five points of 70 or below. It required that it be 70 or below.” Id. The court also noted that Pizzuto's IQ could have decreased in the years between his eighteenth birthday and when he took the IQ test where he scored 72 because of his lifelong drug use and his health problems. Id. at 651–55. The Idaho Supreme Court stressed that Pizzuto did not offer any expert opinion stating that he was mentally retarded at the time of the murders or before the age of 18. Id. at 655. The Idaho Supreme Court also affirmed the trial court's implicit denial of an evidentiary hearing. Id.

We gave Pizzuto permission to file a successive federal habeas corpus petition on his Atkins claim. After careful proceedings, the federal district court denied Pizzuto's habeas corpus petition but granted a certificate of appealability on the Atkins issues. See28 U.S.C. § 2253(c). This timely appeal followed.

II

We review de novo the district court's denial of a habeas petition. Gulbrandson v. Ryan, 711 F.3d 1026, 1036 (9th Cir.2013). Review of Pizzuto's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because Pizzuto filed his petition after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 322, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, habeas relief can be granted only if the state-court proceeding adjudicating the claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). Under both subsections, our review is significantly deferential to our state-court colleagues' adjudication of the claim. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Id. (citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Williams, 529 U.S. at 409, 120 S.Ct. 1495 (“Stated simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.”).

We apply this deferential review to the last reasoned state-court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see also Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 1262, 185 L.Ed.2d 204 (2013). Here, we review the Idaho Supreme Court's decision. See Pizzuto, 202 P.3d 642. Because that court denied Pizzuto's Atkins claim on the merits, Pizzuto can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011); see also Gulbrandson, 711 F.3d at 1042. If the state court's adjudication of a claim survives review under § 2254(d), that ends our analysis; the petitioner is not entitled to an evidentiary hearing on that same claim in federal court. See Pinholster, 131 S.Ct. at 1398–1401;cf. Earp v. Ornoski, 431 F.3d 1158, 1166–67 (9th Cir.2005) (“Because a federal court may not independently review the merits of a state court decision without first applying the AEDPA standards, a federal court may not grant an evidentiary hearing without first determining whether the state court's decision was an unreasonable determination of the facts.”).

III

Pizzuto contends that the Idaho Supreme Court's decision was an unreasonable application of the law set forth in Atkins and an unreasonable determination of the facts. We consider each argument in turn.

A

Pizzuto contends that the Idaho Supreme Court unreasonably applied Atkins and that he should be given relief under 28 U.S.C. § 2254(d)(1). Under § 2254(d)(1), “[t]he pivotal question is whether the state court's application” of the Supreme Court precedent “was unreasonable,” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011), as opposed to merely “incorrect or erroneous,” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Williams, 529 U.S. at 409–10, 120 S.Ct. 1495 (requiring that the state-court decision be an “objectively unreasonable” application of clearly established federal law to grant relief under § 2254(d)). In applying this standard, we “must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Harrington, 131 S.Ct. at 786.

In reviewing the Idaho Supreme Court's decision, we must first ascertain what is the clearly established law of Atkins and then determine whether the Idaho Supreme Court unreasonably applied that law in Pizzuto's case. Pizzuto faces a high barrier on this issue because the Supreme Court, while outlawing the death penalty for mentally retarded persons, left definition of that term broadly open for consistent...