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).
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:
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.
Section 2244(b)(2) of the Antiterrorism and Effective Death Penalty Act ("AEDPA") requires dismissal of a second or successive habeas corpus application unless:
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.
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
"[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.
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.
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 "high-wayman." 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 factfinder 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
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).
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.
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).
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.
B. FLETCHER, Circuit Judge, dissenting:
I dissent. We should grant Pizzuto's motion to file a second or successive application for a writ of habeas corpus pursuant to 28 U.S.C. § 2244(b)(2)(B). Pizzuto raises serious claims of judicial and prosecutorial misconduct that were not presented in his prior habeas applications. The factual predicate for these claims was revealed only in 2005 by Pizzuto's co-defendant and could not have been discovered previously even through the exercise of due diligence. Pizzuto's claims, if proved, will establish such pervasive misconduct that no reasonable factfinder would have found Pizzuto guilty of the underlying offense. He should be afforded the opportunity to present these claims in an application for a writ of habeas corpus.
I am shocked by the conduct in this case. Nothing can be more disturbing to a judge than a conviction and death sentence obtained by a corrupt prosecutor colluding with a corrupt judge. The State asks us to deny Pizzuto an opportunity to challenge just such a conviction and sentence. The majority is willing to do just that. But no fair legal system—and certainly not our American legal system—should allow a conviction and death sentence based in part on perjured testimony procured by the collusion of the judge, the prosecutor, and counsel for Pizzuto's co-defendant.
As the majority recognizes, the heart of Pizzuto's claim is that the testimony of James Rice, one of the prosecution's key witnesses, was negotiated before the trial during ex parte meetings among the prosecutor, the judge who presided over Pizzuto's trial and sentencing (as well as Rice's guilty plea and sentencing), and Rice's counsel. Both Rice and Pizzuto (along with William and Lene Odom) were originally charged with the murders of Berta and Delbert Herndon. Rice and William Odom pleaded guilty to lesser offenses, and charges against Lene Odom were dropped, in exchange for their agreement to testify against Pizzuto.
At Pizzuto's trial in 1986, Rice testified that in exchange for his testimony he would be spared the death penalty but still would face the possibility of life in prison. In September 2005—long after Pizzuto's conviction was final and his first habeas petition had been denied—Rice stated, for the first time, that he had been promised a sentence of twenty years in exchange for his testimony against Pizzuto, and that he was assured he would actually serve only fourteen years, eight months, and sixteen days of that sentence. Immediately after Rice revealed this information, Pizzuto's counsel located Rice's ex-wife, who corroborated Rice's affidavit. Rice's ex-wife explained that:
Seeking further corroboration of these statements, Pizzuto's lawyers obtained the files and billing records of Rice's counsel. Those files revealed something even more
The billing records of Rice's counsel showed that on January 9, 1986, Rice's counsel received a phone call from Judge Reinhardt. The next entry, on January 13, is described as two hours of "serious consultations and negotiations for plea-bargaining conference with the prosecutor." Then, after consulting with Rice about the proposed plea bargain, on January 16 there is an entry for three hours described as "[c]onference at Crossroads [a local restaurant] with Judge Reinhardt, prosecutor on plea agreement." Notes from the files of Rice's counsel confirmed that they had met with Judge Reinhardt and the prosecutor at 6:00 a.m. on January 16 at the Crossroads restaurant. The notes also described the meeting as "discussed negotiations for Rice to enter plea to reduced charges" and noted that "certain questions [were] raised by the Judge" regarding Rice's version of the murders.
A week later, on January 23, Judge Reinhardt took Rice's guilty plea. Throughout the plea colloquy, Judge Reinhardt never disclosed his involvement in the negotiations. According to the affidavits of Rice and his ex-wife, before the plea hearing Rice's attorneys had assured him that they had a close relationship with Judge Reinhardt and the prosecutor, and that they had promised that if Rice pleaded guilty he would be sentenced to twenty years and would actually serve only fourteen years, eight months, and sixteen days. Rice claims that at the same time his lawyers made these assurances, they instructed him to say "no" at the plea colloquy when asked if he had been promised a certain sentence and to say "yes" when asked if he understood that he could receive a life sentence. When Rice testified against Pizzuto, he told the jury that he was facing a possible sentence of life in prison. During closing argument, the prosecutor cited that possible sentence as evidence of Rice's credibility: "Jim Rice pled guilty to two counts of second degree murder. . . . Jim Rice expects, and he told you from the witness stand, that he may spend the rest of his natural life in prison. Got a great deal, didn't he?"
The majority opinion recognizes, as it must, that these facts form the basis of Pizzuto's claims that the judge committed misconduct by helping to negotiate Rice's guilty plea and what Rice's testimony would be at trial; that the judge and prosecutor committed further misconduct by failing to disclose to Pizzuto's counsel Rice's plea bargain and the judge's involvement in it; and that Rice committed perjury at Pizzuto's trial, condoned by the judge and prosecutor, when he testified that he expected a possible life sentence. Whether Rice also perjured himself concerning the circumstances of the murder we know not. Pizzuto also presents an affidavit from his sister Angelinna stating that the prosecutor and sheriff provided her with alcohol and drugs in exchange for her testimony and that her testimony was coached by the prosecutor.
The majority concludes that Pizzuto should not be allowed to present these claims in a second or successive habeas petition because, even accepting Pizzuto's factual allegations as true, Pizzuto cannot show that "no reasonable factfinder would have found [him] guilty of the underlying offense," as required by 28 U.S.C. § 2244(b)(2). I respectfully disagree with this conclusion.
It is unfortunate that the shocking facts of this case were not uncovered sooner. But fortunate, indeed, that they were eventually uncovered, even though they come to us in the form of a request to bring a second or successive habeas petition. We should rejoice in a system that allows a second habeas challenge when diligent counsel is able to uncover the facts and present them to us before a man is put to death.
When faced with the corruption of our legal system, we must start over. The first step is to allow Pizzuto to file a second petition for habeas corpus in the district court. Nothing more nor less is required of us. I dissent from the majority's refusal to take that first step.
