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Gerald Ross Pizzuto, Jr v. Randy Blades

January 10, 2012


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



Before the Court is Petitioner's Successive Petition for Writ of Habeas Corpus, in which Petitioner claims that the State is prohibited from executing him under the Eighth Amendment because he is mentally retarded (an "Atkins claim"). See Atkins v. Virginia, 536 U.S. 304 (2002). The Court previously denied Respondent's Motion for Summary Judgment and held a four-day evidentiary hearing.

After reviewing the record and considering the parties' arguments in their post-hearing briefing, the Court concludes that Petitioner is not entitled to habeas relief, and the Successive Petition will be denied.


In 1986, Gerald Ross Pizzuto, Jr., was sentenced to death for the murders of Berta Herndon and her adult nephew Del Herndon. The Idaho Supreme Court has described the relevant facts of the crimes against the Herndons as follows:

Pizzuto approached [the Herndons] 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 Herndons just for the sake of killing and subsequently joked and bragged about the killings to his associates.

Pizzuto v. State, 202 P.3d 642, 645 (Idaho 2008).

The Idaho Supreme Court affirmed Pizzuto's murder convictions, death sentence, and the district court's order denying post-conviction relief. State v. Pizzuto, 810 P.2d 680 (1991). Pizzuto's first federal habeas petition was denied by District Judge Alan J. McDonald, and the Ninth Circuit Court of Appeals affirmed. Pizzuto v. Arave, 280 F.3d 949 (9th Cir. 2002), dissent amended in part by 385 F.3d 1247 (9th Cir. 2004). Pizzuto has also filed at least five additional petitions for post-conviction relief in the state courts, unsuccessfully challenging his convictions and sentences under various theories. See Pizzuto v. State, 233 P.3d 86, 88-89 (Idaho 2010) (reciting the case history).

In June of 2002, the United States Supreme Court held that the Eighth Amendment precludes the execution of convicted murderers who are mentally retarded.*fn1 Atkins v. Virginia, 536 U.S. 304 (2002). In so ruling, the Supreme Court left to the states the "appropriate ways to enforce the constitutional restriction." Id. at 317.

The Idaho legislature responded to Atkins in March of 2003, enacting Idaho Code § 19-2515A, which contains a substantive definition of mental retardation and provides a procedural mechanism for adjudicating claims that are raised in cases in which the death penalty is an option. Under Idaho Code § 19-2515A(1), mental retardation is defined as (1) "significantly subaverage general intellectual functioning," meaning an intelligent quotient (IQ) of 70 or below, (2) accompanied by "significant limitations in adaptive functioning" in at least two of ten listed skill areas, and (3) with the onset of these mental deficits and adaptive functioning limitations before the age of 18. Idaho Code § 19-2515A(1)(a),(b).

In June 2003, Pizzuto filed a successive application for post-conviction relief in state district court, claiming that his execution is prohibited because he is mentally retarded. (State's Lodging J-1, pp. 1-10.) He supported his claim largely with evidence that was already in the record, including a 17-year-old opinion from psychologist Dr. Michael Emery. (Id. at p. 151.) Dr. Emery had evaluated Pizzuto before sentencing and concluded, among other things, that he had a verbal IQ score of 72 on the Weschler Adult Intelligence Scale, Revised (WAIS-R). (Id.) Pizzuto did not complete the performance portion of the test or receive a full scale score, and Emery offered an opinion only that Pizzuto's verbal WAIS-R score fell in the "borderline range of intellectual deficiency and probably reflects, at least to some extent, a history that has included little organization, predictability, or formal learning." (Id.)

Pizzuto alleged that the partial IQ score, when viewed within a standard margin of error, placed him within the range of "significantly subaverage general intellectual functioning"; that is, with an IQ of 70 or below. (State's Lodging J-1, p. 5.) To bolster his claim, he pointed to evidence of serious head injuries from his childhood, deficits in educational performance and social interaction, a diagnosis of epilepsy, and the opinions of mental health experts, including a 1996 report from neuropsychologist Dr. Craig Beaver, that Pizzuto had serious "cognitive limitations." (Id. at pp. 5-9.) He also attached to his petition a new affidavit from Dr. Beaver (the "2003 Affidavit"), who had reviewed his prior evaluation and remarked that Pizzuto "demonstrated limited intellectual skills indicative of possible mild mental retardation." (Id. at p. 59.) In the 2003 Affidavit, Dr. Beaver concluded that Pizzuto "likely meets the standard recently enacted in Idaho Code, Section 19-2515A regarding defendants who are mentally retarded and involved in first degree murder proceedings." (Id. at p. 59.)

The State responded to the successive petition by filing a motion for summary dismissal on procedural grounds. (State's Lodging J-1, p. 114.) The State alternatively contended that Pizzuto had failed to raise a genuine issue of material fact that, if resolved in his favor, would establish that he was mentally retarded. (Id. at pp. 6-11.)

While the State's motion was pending, Pizzuto filed a motion requesting the district court to grant him permission to complete a neuropsychiatric examination, which his counsel asserted was "necessary and material" to proving the Atkins claim. (State's Lodging J-1, p. 131-32.) To support the request, Pizzuto offered another affidavit from Dr. Beaver (the "2004 Affidavit"), in which he concluded that in light of Pizzuto's neurological problems, "[a] current evaluation of Gerald Pizzuto is indicated to determine if he meets the criteria of mental adaptability." (Id. at 176.) At a subsequent hearing, Pizzuto's counsel discouraged the judge from ruling on the testing issue until a separate motion to disqualify the judge had been resolved. (Id. at p. 52.) At that same hearing, the parties discussed the possibility of agreeing informally to authorize the testing, but the matter was not resolved. (Id. at pp. 52-53.)

After the motion to disqualify the judge and a motion to pursue an interlocutory appeal were denied, Pizzuto moved for summary judgment. (State's Lodging J-2, p. 280.) Although he relied on much of the same evidence that he had lodged previously, he added new affidavits and documentary evidence to the record that he alleged demonstrated significant limitations in adaptive functioning during his developmental years. (State's Lodging J-10, pp. 1-35.)

At the hearing on the parties' dispositive motions, Pizzuto's counsel argued that while she believed there was enough evidence in the record to prove that her client was mentally retarded, if the court disagreed, it should permit additional factual development before disposing of the case. (State's Lodging J-3, pp. 83-84, 105-06.) The state trial court took the matter under advisement and later issued a two-page decision granting the State's motion for summary dismissal and denying Pizzuto's motion for summary judgment. (State's Lodging J-2, pp. 309-10.) The trial court found that the petition was untimely and that Pizzuto had "failed to raise a genuine issue of material fact supporting his claim of mental retardation." (Id. at pp. 309-10.) The court's written ruling did not mention Pizzuto's requests for additional testing or for an evidentiary hearing. (Id.)

On appeal, the Idaho Supreme Court concluded that the district court erred in finding the petition to be untimely, but it nonetheless affirmed the lower court's dismissal of the action on the ground that Pizzuto had not raised a genuine issue of material fact. Pizzuto v. State, 202 P.3d 642, 648 (Idaho 2008). In reaching that conclusion, the Idaho Supreme Court construed and applied the substantive definition of mental retardation in Idaho Code § 19-2515A(1) for the first time. Id. at 650-51. It found that Pizzuto had not presented a prima facie case that he was mentally retarded under the statutory standards, primarily because he had failed to offer evidence from which a factfinder could conclude that he had significantly subaverage general intellectual functioning -- that his IQ was 70 or below -- before he turned 18 years old. Id. at 650-55. Because it rejected the claim on the intellectual functioning prong, the state court did not address whether Pizzuto had significant limitations in adaptive functioning. Id.

While the post-conviction matter was pending, Pizzuto applied to the Ninth Circuit Court of Appeals for permission to raise his Atkins claim in a successive habeas proceeding in this Court. The Ninth Circuit granted his request to go forward, and the federal matter was then stayed until after the Idaho Supreme Court issued its final decision. (Dkts. 2, 7.)

After the stay was lifted, Respondent filed an Answer and a Motion for Summary Judgment. This Court denied the summary judgment motion without prejudice, and because Pizzuto had not been allowed to develop the facts completely in state district court, it authorized him to engage in limited discovery and to complete neuropsychiatric testing. (Dkt. 52, p. 13.) The Court reserved its ruling on whether a full evidentiary hearing would be needed until after the period of investigation and discovery had concluded. (Id.)

Pizzuto then submitted an offer of proof, which included new declarations from two mental health professionals who opined that he was mentally retarded under both Idaho law and clinical definitions of the term. (Dkt. 61, Exhibit A; Dkt. 62.) After considering the offer of proof, the Court determined that Pizzuto had raised a "colorable claim" for relief and set the case for an evidentiary hearing. (Dkt. 74.)

The evidentiary hearing was held between November 15 and November 18, 2010. After receiving extensions of time, the parties have completed post-hearing briefing. The matter is now ripe, and the Court is prepared to issue its final ruling.


1. Deference to the State Court Adjudications -- 28 U.S.C. § 2254(d)

When a state court has denied a state prisoner's federal claim on the merits, the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) requires the federal district court to afford the state court's findings and conclusions substantial deference on habeas review.

Under AEDPA, the Court cannot grant habeas relief on any federal claim that the state court adjudicated on the merits unless the adjudication of the claim:

1. 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; or

2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

The Supreme Court has found that AEDPA's core purpose is to ensure that habeas relief functions as a "'guard against extreme malfunctions in the state criminal justice systems'" and not as a means of mere error correction. Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U. S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)).

The first sub-section, § 2254(d)(1), has two clauses, each with independent meaning. For a decision to be "contrary to" clearly established federal law, the petitioner must establish that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor, 529 U.S. 362, 404-06 (2000).

To satisfy the "unreasonable application" clause, the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams, 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the state court's adjudication of the claim is incorrect or wrong; the state court's application of federal law must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). The state court need not cite or even be aware of the controlling United States Supreme Court decision to be entitled to AEDPA deference. Early v. Packer, 537 U.S. 3, 8 (2002).

To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court's decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id.

Only when the state court did not adjudicate a federal claim that was fairly presented to it will the federal court's review of the legal claim be de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Under all circumstances, state court findings of fact are presumed to be correct unless the petitioner can rebut those findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

2. New Evidentiary Development -- 28 U.S.C. § 2254(e)

The AEDPA also contains restrictions on new evidentiary development in federal court. Evidentiary hearings are prohibited if the petitioner "failed to develop the factual basis" of a claim in state court, unless the petitioner can meet one of two narrow exceptions. 28 U.S.C. § 2254(e)(2). This restriction also applies when a petitioner seeks relief on new evidence in an expanded record without an evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 652 (2004); accord Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005).

A petitioner will be freed from the constraints on evidentiary development in § 2254(e)(2) only if the federal court finds that the petitioner exercised reasonable diligence and was not at fault for the lack of factual development in state court. Williams v. Taylor,529 U.S. 420, 437 (2000).

3. Harmonizing § 2254(d) and § 2254(e)(2) -- Cullen v. Pinholster

Previously, this Court followed the prevailing view that requests for evidentiary hearings were assessed primarily under § 2254(e)(2). Under that view, if a petitioner could establish that he had pursued his claims diligently in state court but was unable to develop the facts, then an evidentiary hearing could be held in federal court if the petitioner stated a "colorable claim" for relief. In making the colorable claim determination, the court was permitted to take into account all of the evidence, including that which was proffered for the first time in federal court.

The Supreme Court has clarified this issue in Cullen v. Pinholster, 131 S.Ct. 1388 (2011). There, the federal district court held an evidentiary hearing on an ineffective assistance of counsel claim and, after taking into consideration evidence that was not before the state court, concluded that the state court's decision involved an unreasonable ...

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