Pizzuto v. State
| Decision Date | 03 February 2021 |
| Docket Number | DOCKET NO. 47709 |
| Citation | 484 P.3d 823,168 Idaho 542 |
| Court | Idaho Supreme Court |
| Parties | Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent. |
Federal Defender Services of Idaho, Boise, for appellant. Jonah Horwitz argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark Olson argued.
This appeal concerns a motion to alter or amend a judgment entered in a post-conviction relief case. In 1985, Gerald Ross Pizzuto Jr. ("Pizzuto") murdered Berta Herndon and Delbert Herndon. Pizzuto was convicted of two counts of murder in the first degree, two counts of felony murder, one count of robbery, and one count of grand theft. He was sentenced to death for the murders. Between 1986 and 2003, Pizzuto filed five petitions for post-conviction relief. His fifth petition for post-conviction relief was predicated on the holding in Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which the Supreme Court of the United States held that the execution of an intellectually disabled person constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. In his fifth petition, Pizzuto asserted that his death sentence should be "reversed and vacated" because he is intellectually disabled. The district court summarily dismissed Pizzuto's petition. This Court, in Pizzuto v. State (Pizzuto 2008) , 146 Idaho 720, 202 P.3d 642 (2008), held that the district court did not err when it dismissed Pizzuto's fifth petition for post-conviction relief on the basis that Pizzuto had failed to raise a genuine issue of material fact supporting his claim that he was intellectually disabled at the time of the murders and prior to his eighteenth birthday.
Pizzuto pursued this same claim in a federal habeas corpus action. In 2016, the U.S. District Court for the District of Idaho ("federal district court") denied Pizzuto's successive petition for writ of habeas corpus after holding a four-day evidentiary hearing in 2010 and determining that Pizzuto had failed to demonstrate that he was intellectually disabled at the time of the murders and prior to his eighteenth birthday. Pizzuto v. Blades (Pizzuto 2016 ), No. 1:05-CV-00516-BLW, 2016 WL 6963030, at *10–11 (D. Idaho Nov. 28, 2016), aff'd , 933 F.3d 1166 (9th Cir. 2019), and aff'd sub nom. Pizzuto v. Yordy , 947 F.3d 510 (9th Cir. 2019) (per curiam). In 2019, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") affirmed the federal district court's decision denying relief. Pizzuto v. Yordy (Pizzuto 2019B) , 947 F.3d 510, 535 (9th Cir. 2019) (per curiam), cert. denied , No. 19-8598, ––– U.S. ––––, 141 S.Ct. 661, 208 L.Ed.2d 270 (U.S. Nov. 2, 2020).
Although it affirmed the federal district court's decision denying Pizzuto's successive petition for writ of habeas corpus, the Ninth Circuit stated in dicta that its decision does not preclude Idaho courts from reconsidering whether Pizzuto was intellectually disabled at the time of the murders. Based on this dicta, Pizzuto filed a motion with the district court to alter or amend the judgment dismissing his fifth petition for post-conviction relief in accordance with Idaho Rule of Civil Procedure 60(b)(6) ("Motion"). The district court denied Pizzuto's Motion on January 6, 2020, on two bases. First, the district court held that Pizzuto's Motion was untimely. Second, the district court held that Pizzuto had not established unique and compelling circumstances necessary to justify relief under Idaho Rule of Civil Procedure 60(b)(6). Pizzuto timely appealed the district court's decision to this Court. Because the district court did not abuse its discretion in denying Pizzuto's Motion, we affirm the district court's decision.
Pizzuto murdered Berta Herndon and her nephew, Delbert Herndon, in 1985. Pizzuto 2008 , 146 Idaho at 723, 202 P.3d at 645. Pizzuto was convicted of two counts of murder in the first degree, two counts of felony murder, one count of robbery, and one count of grand theft. Id. He was sentenced to death for the murders. Id. The facts surrounding Pizzuto's convictions and sentences are summarized in State v. Pizzuto (Pizzuto 1991) , 119 Idaho 742, 748–50, 810 P.2d 680, 686–88 (1991).
After Pizzuto was convicted and sentenced, he filed five petitions for post-conviction relief between 1986 and 2003. Pizzuto 2008 , 146 Idaho at 723, 202 P.3d at 645. Pizzuto's fifth petition for post-conviction relief—which was filed in 2003—is relevant to this appeal. Pizzuto's fifth petition was predicated on the holding in Atkins v. Virginia , where the Supreme Court of the United States ruled that the execution of an intellectually disabled person constituted cruel and unusual punishment in violation of the Eighth Amendment. Id. ; Atkins , 536 U.S. at 321, 122 S.Ct. 2242. Based on the holding in Atkins , Pizzuto sought to "reverse and vacate" his death sentence due to his alleged intellectual disability. Pizzuto 2008 , 146 Idaho at 723, 202 P.3d at 645. Claims of this nature are commonly referred to as " Atkins claims."
During the course of the proceedings pertaining to his Atkins claim, Pizzuto filed a motion with the district court seeking to be transported to a medical facility for additional testing relating to his alleged intellectual disability. Id. at 733, 202 P.3d at 655. However, Pizzuto never filed a notice to set a hearing on his motion. Id. Pizzuto then moved for summary judgment in 2005 without pursuing the motion to be transported to a medical facility for additional testing. Id.
The district court dismissed Pizzuto's fifth petition for post-conviction relief, in part, on the basis that Pizzuto had failed to raise a genuine issue of material fact supporting his claim that he was intellectually disabled at the time of the murders and prior to his eighteenth birthday. Id. at 724, 202 P.3d at 646. In 2008, this Court affirmed the district court's decision denying post-conviction relief. Id. at 735, 202 P.3d at 657. This Court concluded that Pizzuto had not met his burden of showing that he was intellectually disabled. Id. at 733, 202 P.3d at 655. More specifically, this Court concluded that Pizzuto had not shown that he had an intelligence quotient (IQ) of 70 or below at the time of the murders and prior to his eighteenth birthday:
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. To prevent summary judgment from being granted to the State, he had to create a genuine issue of material fact on each element of his claim. A mere scintilla of evidence or only slight doubt is not sufficient to create a genuine issue of material fact. One requirement of proving mental retardation is that Pizzuto had an IQ of 70 or below at the time of the murders and prior to his eighteenth birthday. He did not offer any expert opinion showing that he did. He likewise did not offer any expert opinion stating that he was mentally retarded at the time of the murders or prior to age eighteen. The district court did not err in granting summary judgment to the State.
Id. (internal citation omitted). We note that mental health experts now employ the term "intellectual disability" in place of "mental retardation." See, e.g. , American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013). We use the term "intellectual disability" except when quoting prior opinions or statutes.
In 2014—well after this Court issued its ruling in Pizzuto 2008 , but while Pizzuto's successive petition for writ of habeas corpus was still pending in the federal courts—the Supreme Court of the United States decided Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). In Hall , the Supreme Court of the United States scrutinized a Florida law that was similar to Idaho Code section 19–2515A. See id. at 704, 134 S.Ct. 1986. Under Florida's statute, a prisoner with an IQ score of 70 or below was deemed to be intellectually disabled. Id. If, however, a prisoner had an IQ score above 70, "all further exploration of intellectual disability [was] foreclosed." Id. Because the statute did not recognize that IQ tests have a standard error of measurement (SEM) of five points, the Supreme Court of the United States held that Florida's "rigid rule ... creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." Id.
As previously noted, Pizzuto also filed a successive petition for writ of habeas corpus with the federal district court. Pizzuto 2016, 2016 WL 6963030, at *1. Pizzuto's petition was based on the same Atkins claim that this Court ruled on in Pizzuto 2008 . Id. The federal district court denied Pizzuto's petition, concluding that Pizzuto was not entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) or under de novo review. Id. at *6. Id.
Under de novo review, a federal district court reviews a petitioner's habeas corpus claim anew and may, under certain circumstances, consider evidence outside the state court's record. Id. at *4. (citing Murray v. Schriro , 745 F.3d 984, 1000 (9th Cir. 2014) ). Thus, as part of its de novo review, the federal district court conducted a four-day hearing in 2010 and considered testimony from multiple experts. See id. at *10. The hearing resulted in conflicting evidence concerning Pizzuto's alleged intellectual disability. Id. More specifically, the federal district court "was presented with three IQ...
To continue reading
Request your trial