Pizzuto v. Ramirez

• Decision Date: 22 April 2015
• Docket Number: No. 13–35443.,13–35443.
• Citation: 783 F.3d 1171
• Parties: Gerald Ross PIZZUTO, Jr., Petitioner–Appellant, v. Al RAMIREZ, Warden of Idaho Maximum Security Institute, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

783 F.3d 1171

Gerald Ross PIZZUTO, Jr., Petitioner–Appellant

v.Al RAMIREZ, Warden of Idaho Maximum Security Institute, Respondent–Appellee.

No. 13–35443.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 17, 2014.

Filed April 22, 2015.

Heather E. Williams, Federal Defender; Joseph Schlesinger and Joan M. Fisher (argued), Assistant Federal Defenders, Office of the Federal Defender for the Eastern District of California, Sacramento, CA, for Petitioner–Appellant.

Lawrence G. Wasden, Attorney General of Idaho; 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. 1:92–cv–00241–BLW.

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

OPINION

GOULD, Circuit Judge:

Idaho state prisoner Gerald Ross Pizzuto, Jr., appeals from the denial of his motion under Federal Rules of Civil Procedure 60(b) and 60(d) for relief from the district court's judgment denying his petition for a writ of habeas corpus. Pizzuto, who has been sentenced to death, contends: (1) that Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), established the kind of extraordinary circumstances needed to justify reopening the judgment under Rule 60(b)(6), and that three of his claims for post-conviction relief relating to judicial bias and his trial counsel's conflict of interest, which were rejected by the Idaho Supreme Court as procedurally barred, are in fact eligible for consideration under Martinez ; and (2) that he is entitled to relief under Rules 60(b)(6) and 60(d)(3) because the states' attorneys had perpetrated a fraud on the federal district court. We have jurisdiction under 28 U.S.C. § 1291. We conclude that Pizzuto's claims relating to judicial bias do not fall within Martinez 's exception, his claim relating to his counsel's conflict of interest does not satisfy our circuit's test for establishing cause to excuse procedural default under Martinez, and he has not established a factual basis to show that the state's attorneys perpetrated a fraud on the court during his federal habeas proceedings. We affirm.

I

In 1986, Pizzuto was convicted of two counts of first-degree murder, two counts of felony murder, one count of robbery (which was later vacated by the Idaho Supreme Court), and one count of grand theft. The Idaho Supreme Court summarized his offenses:

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 v. Arave, 280 F.3d 949, 952–53 (9th Cir.2002), dissent amended and superseded in part, 385 F.3d 1247 (9th Cir.2004).

Pizzuto's state petition for post-conviction relief was denied by the state district court, and the Idaho Supreme Court affirmed. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991). At trial, Pizzuto was represented by Nick Chenoweth and Scott Wayman, who also represented him during this first state post-conviction relief petition. During the post-conviction proceedings, Chenoweth and Wayman filed a motion to disqualify Judge George Reinhardt, who had presided over Pizzuto's guilt and sentencing phase trials, on the grounds that Judge Reinhardt could not be impartial based on allegations challenging his conduct during the trial and in relation to two of Pizzuto's co-defendants. Judge Reinhardt denied the motion.

Pizzuto filed his initial federal habeas corpus petition, which the state answered by arguing that many of Pizzuto's claims were not exhausted because they had not been brought in the initial state post-conviction proceeding. Pizzuto then returned to state court to exhaust those claims, but the Idaho courts held that those same claims were procedurally barred because they could have been brought in the first post-conviction proceeding. Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (1995). When Pizzuto returned to federal court, the district court held that Pizzuto had not shown sufficient cause to excuse the procedural default of his ineffective assistance of counsel and judicial bias claims. We affirmed those rulings. Arave, 280 F.3d at 975–76.

After the United States Supreme Court's decision in Martinez v. Ryan, Pizzuto filed a Rule 60 motion, the denial of which is now before us. Seeking relief from the denial of his first habeas corpus petition, he argued first that Martinez established the kind of extraordinary circumstances needed to justify reopening the judgment under Rule 60(b)(6), and that three of the claims rejected by the Idaho Supreme Court as procedurally barred are eligible for consideration under Martinez. Pizzuto also argued that he is entitled to relief under Rules 60(b)(6) and 60(d)(3) because the state's attorneys had perpetrated a fraud on the federal district court. The claims that Pizzuto attempts to reopen are the thirteenth, fourteenth, and twentieth grounds for issuance of the writ in Pizzuto's initial habeas corpus petition. The thirteenth ground (“Claim 13”) is that Judge Reinhardt had been biased at the guilt and sentencing phases of trial, as shown by questioning witnesses inappropriately and making off-the-record comments to Pizzuto's family that Pizzuto was a murderer who was going to be “burn[ed].” The fourteenth ground (“Claim 14”) also relates to judicial bias, claiming that Judge Reinhardt had contact with the jurors outside the presence of Pizzuto or his counsel. And the twentieth ground (“Claim 20”) is that Pizzuto was denied his right to effective assistance of counsel because Chenoweth, his attorney at trial, on appeal, and on his initial state post-conviction review, had a close relationship with Judge Reinhardt, which created a conflict of interest. That relationship, which Chenoweth did not disclose to Pizzuto, included having formerly employed Judge Reinhardt and having gone on vacation together.

The district court denied Pizzuto's motion, holding that Claims 13 and 14 were not ineffective assistance of counsel claims, and therefore were outside the scope of Martinez. It held that Claim 20 could be considered under the Martinez framework but that it was not “substantial” and thus failed. Finally, the district court held that Pizzuto had not established a factual basis for his fraud on the court claim. It granted a certificate of appealability on all issues, and this appeal followed.¹

II

We review a district court's denial of a Rule 60(b) motion for abuse of discretion. Towery v. Ryan, 673 F.3d 933, 940 (9th Cir.2012). “A court abuses its discretion when it fails to identify and apply the correct legal rule to the relief requested, or if its application of the correct legal standard was illogical, implausible or without support in inferences that may be drawn from the facts in the record.” Id. (citing United States v. Hinkson, 585 F.3d 1247, 1262–63 (9th Cir.2009) (en banc)).

We may affirm the district court on any basis supported by the record, whether or not relied on by the district court. Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th Cir.2007).

III

A. Pizzuto's Claims Are Not Entitled to Relief Under Martinez

Pizzuto's first argument is that Martinez v. Ryan gives cause for the state-law procedural default of three of the claims that he raised in his initial habeas corpus petition. The state urges that this argument be rejected as an improper second or successive habeas corpus petition under the guise of a Rule 60(b) motion. We conclude that the claims were properly brought under Rule 60(b), and then consider the claims within the Martinez framework. On the merits, we affirm the district court's rejection of Pizzuto's argument because Claims 13 and 14 are not ineffective assistance of counsel claims—the only substantive area that Martinez covers—and Claim 20 does not satisfy Martinez 's requirements.

1. Pizzuto's Rule 60(b) Motion Is Not a Disguised Second or Successive Habeas Petition

Rule 60(b) permits a party to seek relief from a final judgment under limited circumstances. Jones v. Ryan, 733 F.3d 825, 833 (9th Cir.2013), cert. denied, – –– U.S. ––––, 134 S.Ct. 503, 187 L.Ed.2d 340 (2013). Rule 60(b)(6), the primary provision under which Pizzuto seeks relief, requires a showing of extraordinary circumstances that justify reopening a judgment. Id.

Jones considered at length when a Rule 60(b) motion filed by a habeas corpus petitioner should be dismissed as an improper disguised second or successive habeas petition. While there is no bright-line rule for distinguishing the two, “a legitimate Rule 60(b) motion ‘attacks ... some defect in the integrity of the federal habeas proceedings,’ while a second or successive habeas corpus petition ‘is a filing that contains one or more claims.’ ” Id. at 834 (quoting Gonzalez v. Crosby, 545 U.S. 524, 530, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ). Motions that allege fraud on the federal habeas corpus court, or allege a prior ruling which prevented a merits determination—such as a ruling that certain claims were procedurally defaulted—was in error are properly brought under Rule 60(b). Id.

Applying that legal framework to Pizzuto's claims here, we conclude that all three of Pizzuto's claims are properly made under Rule 60(b). Pizzuto's motion argued that Claims 13, 14, and 20 of his...