Pizzuto v. State

• Decision Date: 22 February 2008
• Docket Number: No. 32679.,32679.
• Citation: 146 Idaho 720,202 P.3d 642
• Parties: Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

202 P.3d 642

146 Idaho 720

Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 32679.

Supreme Court of Idaho, Boise, September 2007 Term.

February 22, 2008.

Rehearing Denied March 19, 2008.

Federal Defenders Services of Idaho, Moscow, for appellant. Joan M. Fisher argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. L. LaMont Anderson argued.

SUBSTITUTE OPINION

THE COURT'S PRIOR OPINION DATED NOVEMBER 23, 2007 IS HEREBY WITHDRAWN.

EISMANN, Chief Justice.

The petitioner was convicted of two murders and sentenced to death. In this case he filed his fifth petition for post-conviction relief, challenging his death sentence on the ground that he was mentally retarded. The district court dismissed his petition on summary judgment, holding that the petition was untimely and that the petitioner did not present evidence creating a genuine issue of material fact as to his mental retardation. The petitioner appealed, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

On July 25, 1985, the petitioner Gerald R. Pizzuto, Jr., (Pizzuto) murdered two innocent strangers, Berta Herndon and her nephew Del Herndon. Pizzuto approached them with a .22 caliber rifle as they arrived at their mountain cabin and made them enter the cabin. While inside, he tied the Herdons' 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 Herdons just for the sake of killing and subsequently joked and bragged about the killings to his associates.

A jury convicted Pizzuto of two counts of murder in the first degree, two counts of felony murder, one count of robbery, and one count of grand theft. In 1986, the district judge sentenced Pizzuto to fourteen years fixed for the grand theft, to a fixed life sentence for the robbery, and to death for the murders. On appeal this Court affirmed Pizzuto's convictions and his sentences, with the exception of his sentence for robbery. We held that the robbery was a lesser included offense of the felony murder, and therefore vacated the fixed life sentence. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991). Within forty-two days after entry of the judgment imposing the death sentence, Pizzuto also filed his first petition for post-conviction relief. The trial judge denied him any relief on his petition, and we affirmed the denial on appeal. Id.

In 1994, Pizzuto filed a second petition for post-conviction relief in which he raised numerous errors in the proceedings leading to his conviction and sentence. The trial judge denied the petition on the ground that the claims raised were known, or reasonably should have been known, when Pizzuto filed his first petition and that they were therefore barred by Idaho Code § 19-2719. This Court affirmed the summary dismissal of Pizzuto's second petition. Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (1995).

In 1998, Pizzuto filed a third petition for post-conviction relief, which the trial judge summarily dismissed pursuant to Idaho Code § 19-2719. On appeal, this Court affirmed the dismissal. Pizzuto v. State, 134 Idaho 793, 10 P.3d 742 (2000).

In 2002, Pizzuto filed a fourth petition for post-conviction relief based upon Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). He alleged that the Ring opinion should be applied retroactively to his case. He also filed a motion under Rule 35 of the Idaho Criminal Rules to correct an illegal sentence, alleging that under Ring his sentence was illegal because a judge rather than a jury had made the factual findings upon which imposition of the death penalty was based. The district court ultimately dismissed the petition and denied the motion, and Pizzuto appealed. This Court dismissed his appeal upon motion of the State because Ring v. Arizona did not apply retroactively to cases such as Pizzuto's that were already final on direct review.

On June 19, 2003, Pizzuto filed a fifth petition for post-conviction relief based upon the opinion of the United States Supreme Court 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 execution of a murderer who was mentally retarded at the time of the killing constituted cruel and unusual punishment in violation of the Eighth Amendment. Pizzuto alleged that he is mentally retarded and sought to have his death sentence "reversed and vacated."

Judge Reinhardt had been the presiding judge at Pizzuto's criminal trial and sentencing and in his prior post-conviction proceedings. He had retired, and Judge Bradbury took office as his replacement in January 2003. The State disqualified Judge Bradbury without cause pursuant to Idaho Rule of Civil Procedure 40(d)(1), and Judge Reinhardt, who was serving as a senior district judge, was appointed to preside over this case. On August 4, 2003, Pizzuto moved to disqualify Judge Reinhardt without cause under Rule 40(d)(1) or, in the alternative, to disqualify him for cause on the ground that he was allegedly biased and prejudiced against Pizzuto. On January 18, 2005, Judge Reinhardt denied the motion for disqualification.

On July 9, 2003, the State moved to have Pizzuto's fifth petition summarily dismissed on two grounds: (1) the petition was not filed within a reasonable time after the Atkins opinion was released and (2) the petition sought a retroactive application of new law announced in Atkins, in violation of Idaho Code § 19-2719(5)(c). On September 23, 2005, Pizzuto moved for a summary judgment granting his requested relief. After a hearing on the motions, Judge Reinhardt dismissed Pizzuto's petition on the grounds that it had not been filed within forty-two days after the Supreme Court's opinion in Atkins and that Pizzuto had failed to raise a genuine issue of material fact supporting his claim of mental retardation. Pizzuto then timely appealed.

II. ISSUES ON APPEAL

1. Did the district court err in denying Pizzuto's motion for disqualification without cause?

2. Did the district court err in denying Pizzuto's motion for disqualification for cause?

3. Did the district court err in summarily dismissing Pizzuto's petition on the ground that it was untimely?

4. Did the district court err in summarily dismissing Pizzuto's petition on the ground that he had failed to raise a genuine issue of material fact supporting his claim of mental retardation?

5. Did the district court err in dismissing Pizzuto's petition without permitting further testing?

6. Did the district court deny Pizzuto the equal protection of the law by failing to hold an evidentiary hearing on the issue of mental retardation?

7. Does Idaho Code § 19-2515A violate the Eighth and Fourteenth Amendments to the Constitution of the United States?

III. ANALYSIS

A. Did the District Court Err in Denying Pizzuto's Motion for Disqualification Without Cause?

"[P]etitions for post-conviction relief are civil proceedings governed by the Idaho Rules of Civil Procedure." Storm v. State, 112 Idaho 718, 720, 735 P.2d 1029, 1031 (1987). Rule 40(d)(1) of the Idaho Rules of Civil Procedures provides, "In all civil actions, the parties shall each have the right to one (1) disqualification of the judge without cause, except as herein provided." One of the exceptions stated in the rule is that the right of disqualification without cause does not apply to "[a] judge in a post-conviction proceeding, when that proceeding has been assigned to the judge who entered the judgment of conviction or sentence being challenged by the post-conviction proceeding." I.R.C.P. 40(d)(1)(I)(ii). Judge Reinhardt denied Pizzuto's motion for disqualification without cause based upon this exception.

Pizzuto asserts that this exception to the right of automatic disqualification does not apply in this case for three reasons. First, he points out that the exception only applies when the post-conviction proceeding "has been assigned" to the judge who entered the conviction or sentence being challenged. He argues that this case was assigned to Judge Bradbury, not to Judge Reinhardt, and therefore the exception does not apply. This case was originally assigned to Judge Bradbury. However, after he was disqualified, the administrative district judge assigned Judge Reinhardt to preside over all further proceedings in the case. Thus, this post-conviction proceeding was assigned to Judge Reinhardt.

Second, Pizzuto contends that the exception does not apply in this case because he is not seeking to invalidate the death sentence he is only seeking to prevent execution of the sentence. He contends that these proceedings are therefore separate and distinct from the underlying criminal conviction and sentence. Rule 40(d)(1), by its terms, is not limited to proceedings challenging the imposition of a sentence. It applies to post-conviction proceedings in which the "sentence [is] being challenged." A contention that the sentence imposed should not be carried out is a challenge to the sentence.

Finally, Pizzuto claims that because the State disqualified Judge Bradbury without cause, it would be a denial of equal protection to deny him the right to disqualify Judge Reinhardt without cause. "The first step in an equal protection analysis is to identify the classification at issue." McLean v. Maverik Country Stores, Inc., 142 Idaho 810, 814, 135 P.3d 756, 759 (2006). Pizzuto does not identify the classification he challenges. Rule 40(d)(1)(I)(ii) provides that in a post-conviction proceeding, a party may not disqualify without cause the judge "who entered the judgment of conviction or sentence being challenged by the post-conviction proceeding." Neither the State nor Pizzuto was entitled to challenge Judge Reinhardt without cause. Both of them were entitled to...