Gerald Ross PIZZUTO, Jr., Petitioner, v. Randy BLADES, Respondent, 673 F.3d 1003

Opinion by Judge GOULD; Dissent by Judge B. FLETCHER. OPINION GOULD, Circuit Judge: Gerald Ross Pizzuto, Jr., requests permission to file a second or successive application for a writ of habeas corpus in the District of Idaho. See 28 U.S.C. § 2244(b)(3)(A). I 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 on March 27, 1986. He was sentenced to death for the murders of Berta Louise Herndon and her nephew, Delbert Dean Herndon, on May 23, 1986.

Our opinion of February 6, 2002 details the circumstances of Pizzuto’s crimes and the evidence presented at his trial: On July 25, 1985, Berta Herndon and her adult nephew Delbert Herndon were robbed and murdered and their property was stolen while they were camping in the Ruby Meadows area, a remote campsite near McCall, Idaho. The police discovered their bodies in shallow graves that had been dug near their cabin. The victims’ hands were bound behind their backs with shoelaces and heavy wire, and Berta’s and Delbert’s jeans were pulled below their knees. The murders occurred in the Herndon cabin.

Both the Idaho Supreme Court and the district court’s order denying Pizzuto’s petition for writ of habeas corpus describe the facts in detail. In sum, testimony at trial showed that Pizzuto, James Rice, and William and Lene Odom knew each other from Orland, California. They (along with the Odoms’ two children) traveled to Idaho in the Odoms’ vehicle, and were camping together that day in a cabin in the Ruby Meadows area. William Odom and Pizzuto discussed robbing two fishermen, Stephen Crawford and Jack Roberts. While they were at the pond, the Herndons drove by in their pickup truck.

Pizzuto and Odom abandoned their plan to rob the fishermen, and returned to their cabin. Shortly thereafter, Pizzuto left the others and walked off in the direction the Herndons had driven. He picked up a .22 caliber rifle and said he was going “hunting.” Twenty to thirty minutes later, Rice and Odom drove up the road in Odom’s truck looking for Pizzuto. As they drove past the Herndon cabin, they saw Pizzuto standing in the doorway, holding a revolver.

Pizzuto came up to Rice and Odom and told them to “give me half an hour and then come back up.” Rice and Odom drove back to their cabin, left their truck, and walked back to the Herndon cabin. Approaching the Herndon cabin, Rice and Odom heard “bashing hollow sounds” like a watermelon being thumped. Pizzuto emerged with a hammer, the rifle, a revolver, and a pair of cowboy boots. He also had a “wad of hundred dollar bills” that he gave to Odom; Rice took the rifle.

Pizzuto told them that he had “put those people to sleep, permanently.” He also said that he told the Herndons that he was a “highwayman” and that, when Delbert Herndon didn’t believe him, Pizzuto put a gun up to Delbert’s face, “made him drop his pants and crawl around the cabin,” and asked Delbert: “Does this look like a cannon from where you are standing at?” Rice then heard some snoring sounds coming from the cabin and went inside. There, he found Berta and Delbert lying on the ground, with blood on their heads. Both bodies were still, except for Delbert Herndon’s legs which were shaking.

Rice shot Delbert Herndon in the head because he “didn’t want him to suffer.” Pizzuto, Rice, and Odom returned to their camp, divided up the money Pizzuto had stolen from the Herndons, and gave Lene Odom a leftover $ 100 bill. Pizzuto and Odom then went back to the Herndon cabin to bury the bodies. At the cabin, Odom saw that the Herndons’ hands were tied behind their backs. They buried Berta Herndon in a hole that Rice had previously dug. Pizzuto and Odom got Rice to help them bury Delbert Herndon; they threw his body in a shallow ditch and covered it with dirt.

After they returned to their cabin, Pizzuto, the Odoms, and Rice sorted through the Herndons’ possessions and took what they wanted. They left Ruby Meadows with Odom driving his truck and Pizzuto and Rice riding in the Herndon truck. They camped that evening at a nearby hot springs; the next morning they parked the Herndon truck in a wooded area, drove into Cascade and checked into a motel. They stayed there for several days and, while there, took pictures of each other with a camera stolen from the Herndons. Rice then took a bus to Orland, where he reported the murders to the police.

On July 31, Pizzuto met Roger Bacon in Gold Fork Hot Springs. Bacon and Pizzuto decided to go fishing and hunting. As they walked toward a small stream, Pizzuto pulled out a gun and said “he was a highwayman.” Pizzuto tied Bacon’s hands behind his head with shoelaces, took money from him, and left him tied to a tree. Bacon eventually freed himself. Sometime in early August Pizzuto visited his sister, Angelinna Pizzuto, in Great Falls, Montana.

Pizzuto arrived with cowboy boots, a revolver, and a two-tone gold wedding band in his possession, all of which were subsequently identified as belonging to Delbert Herndon. Pizzuto told her that he was a “highwayman” and that he had robbed and murdered a man and a woman (with the man’s gun, which he had) after he had tied them to some trees. Later, Pizzuto told his sister that he had not killed the man but Rice had; later still, that Rice and Odom had killed the people and he, Pizzuto, had freaked out, had a seizure, and tied a guy to a tree.

Autopsies revealed that Berta Herndon and Delbert Herndon each suffered two fatal blows to the head, consistent with hammer blows, and in addition that Delbert Herndon had been shot between the eyes which would also be fatal. The pathologist was unable to determine which occurred first. Delbert Herndon’s wrists had been bound with a shoe lace and a piece of wire, and Berta Herndon’s hands and wrists were tied behind her back using a shoe lace which was wrapped several times around her right thumb.

Pizzuto, Rice and the Odoms were charged with the Herndon murders; Rice and Odom pled guilty to lesser offenses and charges against Lene Odom were dismissed in exchange for their agreeing to testify at Pizzuto’s trial. Following a jury trial 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 on March 27, 1986. The trial judge, Hon. George C. Reinhardt, ordered that a presentence report be completed and that psychiatric examinations be conducted by Dr. Michael Emery and Dr. Roger White. Pizzuto declined to meet with Dr.

White on advice of counsel. During the sentencing hearing before Judge Reinhardt, convened May 21, 1986, Pizzuto called his two sisters, Toni and Angelinna Pizzuto, and his aunt, Kibby Winslow, who described the abuse he (and his sisters) suffered in childhood; his former probation officer from Great Falls, Montana, Jerome Skiba, who gave a positive report on Pizzuto’s adjustment; and Dr. Emery. Pizzuto did not testify but made an unsworn statement to the court.

The state presented eight witnesses, including Pizzuto’s former wife, Pamela Relken, who testified that Pizzuto could be “very violent, punishing” in that he had pushed her head into a wall, drowned her cats and their puppy (who Pizzuto then hung from the shower stall), pushed her down the stairs when she was six-and-a-half months pregnant, pointed a gun at her head and played roulette, described himself “as a fourth generation A1 Capone,” and threatened her with death in a letter written after he had been arrested on rape charges.

It also called Michael Berro, the presentence investigator on Pizzuto’s Michigan rape conviction, who testified that Pizzuto was “one of two people who have ever threatened [his] life where [he] believed it”; Paul Blumbaum, who worked at Pizzuto’s jail and testified that Pizzuto claimed to have put snakes in mailboxes, said that he could “get anything out of anybody he wanted by the technique of tying them tightly around the ankles,” and threatened his jailers by saying that he was going to bring in the Mafia; Annette Jones, who authored the presentence report for the Herndon case; Bert[a] Herndon’s widower; and Dr.

Emery. On May 23, 1986 Judge Reinhardt sentenced Pizzuto to a fourteen-year fixed term with no possibility of parole for grand theft and a fixed life term for robbery. On the murder charges, the judge found that the mitigating circumstances did not outweigh any one of five statutory aggravating circumstances as would make imposition of the death penalty unjust. Accordingly, he sentenced Pizzuto to death for the murders of Delbert Herndon and Berta Herndon. Pizzuto v. Arave, 280 F.3d 949, 952-54 (9th Cir.2002). Pizzuto’s conviction and sentence were upheld on direct review.

On state collateral review, the Idaho Supreme Court vacated Pizzuto’s robbery conviction, concluding it merged as a lesser-included offense of felony-murder. Pizzuto’s other convictions and his sentence were upheld on state collateral review and federal habeas corpus review. On March 2, 2011, Pizzuto filed a motion to file a successive habeas corpus petition challenging his conviction and sentence.

He alleges seven claims — two claims of prosecutorial misconduct, one claim of judicial misconduct, one claim of judicial bias, a claim of actual innocence, a claim of cumulative error, and a claim that Idaho unconstitutionally fails to provide a post-conviction procedure with means of adequately reviewing constitutional claims in capital cases, as applied to Pizzuto — based on evidence previously unavailable. II

Section 2244(b)(2) of the Antiterrorism and Effective Death Penalty Act (“AED-PA”) requires dismissal of a second or successive habeas corpus application unless: (

A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (

i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). “Permitting a state prisoner to file a second or successive federal habeas corpus petition is not the general rule, it is the exception, and an exception that may be invoked only when the demanding standard set by Congress is met.” Bible v.

Schriro, 651 F.3d 1060, 1063 (9th Cir.2011) (per curiam). To the extent that Pizzuto raises claims not previously presented, he must make a prima facie showing that his application satisfies the requirements of § 2244(b). § 2244(b)(3)(C); King v. Trujillo, 638 F.3d 726, 729 (9th Cir.2011) (per curiam). In other words, Pizzuto must “make a prima facie showing to us that his claim (1) is based on newly discovered evidence and (2) establishes that he is actually innocent of the crimes alleged.” King, 638 F.3d at 729-30. A We turn first to Pizzuto’s claim of judicial bias.

Pizzuto claims that he is entitled to file a successive motion under § 2244(b)(2) because of new facts related to judicial misconduct in his trial and sentence of death. However, in his first federal habeas corpus petition Pizzuto made a claim of judicial bias against Judge Reinhardt, and we determined that he procedurally defaulted the claim because he was unable to show cause for not raising it in his first petition for post-conviction relief in state court. Pizzuto, 280 F.3d at 974-75.

A claim presented in a second or successive application under § 2254 that was presented in a prior application “shall” be dismissed. § 2244(b)(1); Tyler v. Cain, 533 U.S. 656, 661, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (in the context of a second or successive habeas application, noting that “[i]f the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases”). It is only where a petitioner asserts a new claim that § 2244(b)(2) applies.

Id., “[T]he dismissal of a first petition with prejudice because of a procedural default (and a failure to show cause and prejudice) forecloses the possibility that the underlying claims will be addressed by a federal court.... Such a dismissal therefore constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.2009) (citing Henderson v. Lampert, 396 F.3d 1049, 1053 (2005)).

Pizzuto claimed judicial bias, relying, in part, on the same evidence that he presents here, that Judge Reinhardt made public statements of his intent to impose the death penalty before the sentencing hearing. Pizzuto, 280 F.3d at 974. He also introduces new evidence that supports his claim of judicial bias. However, federal courts “will not consider new factual grounds in support of the same legal claim that was previously presented.” Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir.1999).

Therefore, Pizzuto’s application to file a second or successive application for habeas corpus relief regarding judicial bias must be denied. B We turn next to Pizzuto’s other claims related to his conviction and conclude that he is unable to meet the high standards of § 2244(b)(2)(B). To be able to file a second or successive habeas petition, Pizzuto must show that he is actually innocent— that “no reasonable factfinder would have found [Pizzuto] guilty of the underlying offense.” § 2244(b)(2). Even accepting as true Pizzuto’s factual allegations, Pizzuto has made no such showing.

Pizzuto presents the following newly discovered evidence: (1) the testimony of James Rice, one of the prosecution’s witnesses, was negotiated before the trial in a meeting with the prosecutor, the trial and sentencing judge, and the appointed counsel of Rice;

(2) James Rice perjured himself when he testified regarding the promises he received in exchange for his testimony; (3) the prosecutor and judge knew the testimony was perjured and did nothing to correct or prevent it; (4) the judge and county sheriff coordinated physical evidence to corroborate the version of events to which Rice testified; (5) the judge and sheriff maintained a relationship that likely resulted in fabrication of evidence — namely the presence of blood and a shell casing in the cabin even though prior searches of the cabin had failed to reveal such evidence.

Pizzuto also relies on an affidavit by his sister Angelinna stating that during her testimony she was drunk and on drugs provided by the prosecution and that the prosecutor had told her how to testify. If true, these allegations raise troubling issues about Pizzuto’s trial. However, without minimizing those allegations, we must follow AEDPA’s “extremely stringent” requirements. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.1997).

The question is not whether this jury, knowing of this prosecutorial and judicial misconduct would have acquitted Pizzuto, but whether, “in light of the evidence as a whole ... no reasonable factfinder would have found [Pizzuto] guilty.” § 2244(b)(2). Even if we credit Pizzuto’s claim that “[n]o reasonable juror ... would have found Rice credible, had the newly discovered evidence been available and presented at trial,” and even if we discount Angelinna’s testimony, other unchallenged evidence provides a sufficient basis on which a reasonable factfinder could find Pizzuto guilty of murdering the Herndons.

Though the testimony of Rice and Angelinna was part of the government’s case, the prosecution did not rest solely on this testimony. William and Lene Odom’s and Roger Bacon’s testimony, forensic evidence, and the fact that Delbert Herndon’s belongings were found with Pizzuto are sufficient to support a finding of guilt. Lene Odom testified that Pizzuto went camping with her family and Rice and that she overheard the three men discussing robbing two fishermen.

She also testified that, after the men decided not to do so because one of the fishermen had a gun, Pizzuto took the gun they had brought with them and went off in the direction of the Herndons’ pickup and that Odom and Rice followed about an hour later. Later, Pizzuto drove the Herndons’ pickup back to the cabin the Odoms, Rice, and Pizzuto were using, and the three men divided up money.

Odom testified that Pizzuto came out of the Herndons’ cabin with a hammer in his hand, and that he reported to Odom that he had told “the guy and lady that he was a highwayman” and that he “put those people to sleep permanently.” Carl Koenen, who performed the autopsies, testified that both of the Herndons’ injuries were caused by something small and dense, like a hammer. Though Rice admitted to shooting Delbert in the head, Koenen testified that Delbert had three fatal injuries— crushing fractures on the right and left sides of his head and the gunshot wound— any of which were individually fatal.

He further testified that both Herndons were found with their wrists tied behind their backs with shoelaces. Sheriff Baldwin testified that he went to Great Falls, Montana to pick up Pizzuto and transport him back to the state of Idaho. Sheriff Baldwin also picked up evidence — including a pistol, a ring, and boots. Joe Herndon, Delbert Herndon’s brother, testified that those items belonged to Delbert. Bacon’s description of the manner in which Pizzuto robbed him was similar to Pizzuto’s robbery of the Herndons.

During both robberies Pizzuto described himself as a “highwayman.” Bacon testified that Pizzuto tied his hands with shoelaces in a manner similar to that in which the Herndons’ hands were tied. Both the binding in shoelaces and the use of the term “highwayman” are not so commonplace as to suggest that a reasonable fact-finder could not have thought Pizzuto committed the murders. Instead, a reasonable factfinder could think that such evidence helped to prove guilt of the murders beyond a reasonable doubt.

Even if the testimony of Rice and Angelinna were completely removed from consideration, there was very strong evidence of guilt: Pizzuto had Delbert Herndon’s belongings. He tied Bacon up with shoelaces in a similar manner as the Herndons had been tied, calling himself a “highwayman” in both cases. Odom testified that Pizzuto claimed to “put those people to sleep permanently.” Both victims had deadly blows to the head consistent with being caused by a hammer, and Odom saw Pizzuto with a hammer.

Considering the weight of this other evidence, we conclude that Pizzuto has not shown by clear and convincing evidence that no reasonable factfinder would have found him guilty as required by § 2244(b)(2)(B)(ii). C

Section 2244(b)(2) applies not only to the underlying conviction but also to the imposition of the death penalty. Thompson v. Calderon, 151 F.3d 918, 923 (9th Cir.1998). To succeed, Pizzuto has to establish by “clear and convincing evidence that ... no reasonable factfinder would have found [him] guilty” of the aggravating factors used to sentence him to death. § 2244(b)(2)(B)(ii). “A claim of actual innocence of the death penalty would require a showing that one of the statutory aggravators or other requirements for the imposition of the death penalty had not been met.” Beaty v.

Schriro, 554 F.3d 780, 784 (9th Cir.2009). Mitigating factors are not taken into consideration. Id.; see also Sawyer v. Whitley, 505 U.S. 333, 344-345, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Under Idaho law at the time of Pizzuto’s sentencing, if the sentencing judge found one of eleven statutory aggravating circumstances to have been established beyond a reasonable doubt, he was required to impose, a sentence of death unless he found that mitigating factors outweighed the aggravating factors. IDAHO CODE § 19-2515 (1986).

Judge Reinhardt found five statutory aggravating circumstances beyond a reasonable doubt: (1) at the time Pizzuto murdered Delbert Herndon, he also murdered Berta Herndon; (2) the murders were especially heinous, atrocious, cruel and manifested exceptional depravity; (3) by the murders and circumstances surrounding their commission, Pizzuto exhibited utter disregard for human life; (4) the murders were accompanied with the specific intent to cause the two deaths; and (5) by prior conduct and by conduct in the murders in this case, Pizzuto had exhibited a propensity to commit murder which will probably constitute a continuing threat to society.

Pizzuto, 280 F.3d at 957. Pizzuto cannot get past the first statutory aggravating circumstance found by Judge Reinhardt — that at the time he murdered Delbert Herndon, he also murdered Berta Herndon. As discussed above, he has not presented enough evidence to show with clear and convincing evidence that no reasonable factfinder would have found him guilty of committing both murders. Therefore, he cannot show actual innocence of the death penalty because any one of the aggravating factors were individually sufficient to support the sentence.

D Because we conclude that Pizzuto does not satisfy the requirements of the second prong of § 2244(b)(2)(B), that he show actual innocence of the underlying crime or of the aggravating factors used to impose the death penalty, we need not, and do not, address prong one: whether he has shown due diligence. See Babbitt, 177 F.3d at 747 (denying the second or successive application for failure to meet the due diligence prong and noting that the actual innocence prong need not be addressed). III We hold that Pizzuto’s claims do not satisfy the requirements of § 2244(b)(2).

Pizzuto’s Motion to File Successive Petition for Writ of Habeas Corpus is DENIED. MOTION DENIED. . Pizzuto's claim of judicial misconduct (relating to the trial judge's participation in orchestrating Rice’s testimony) is sufficiently different from the claim of judicial bias (relating to the trial judge’s predisposition to impose the death penalty) he presented in his first federal habeas petition that it is not barred as a claim presented in a prior application. § 2244(b)(2).