Gerald Pizzuto, Jr. v. Randy Blade

Filing

FILED OPINION (BETTY BINNS FLETCHER, RONALD M. GOULD and JOHNNIE B. RAWLINSON) DENIED. Judge: BBF Dissenting, Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. [8095582]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD ROSS PIZZUTO, Jr.,
Petitioner,
v.
RANDY BLADES,
Respondent.




No. 11-70623
OPINION



Application to File Second or Successive
Petition Under 28 U.S.C. § 2255
Filed March 8, 2012
Before: Betty B. Fletcher, Ronald M. Gould, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge B. Fletcher

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COUNSEL
Joan M. Fisher, Office of Federal Defender for the Eastern
District of California, Capital Habeas Unit, Sacramento, California, for the petitioner.
L. LaMont Anderson, Office of the Idaho Attorney General,
Boise, Idaho, for the respondent.

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,

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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

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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.

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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 twotone 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,

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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

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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 Al
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.

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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
[1] Section 2244(b)(2) of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) 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).
[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

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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
[3] 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 postconviction 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 (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.
[4] “[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

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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.1
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
1

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).

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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.
[5] 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).
[6] 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

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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 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.
[7] Even if the testimony of Rice and Angelinna were
completely removed from consideration, there was very

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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
[8] 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 (1992).
[9] 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

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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.
[10] 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
[11] 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.

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MOTION 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 codefendant 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

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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 exwife explained that:
I communicated with Jim [Rice] until he was sentenced. He told me about making a deal where he
would plead guilty and testify against Jerry [Pizzuto]
in exchange for a lower sentence. Jim knew prior to
his sentencing hearing that he was going to be sentenced to twenty years, and that he would actually
serve less than that with good behavior. . . . I am certain that Jim knew what his sentence was going to be
prior to the sentencing hearing.
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 troubling than
Rice’s false trial testimony about what he received in
exchange for his guilty plea: the fact that Judge George Reinhardt participated in negotiating Rice’s testimony and plea
deal. Judge Reinhardt was the judge who presided over Rice’s
guilty plea, Pizzuto’s trial, and Pizzuto’s sentencing.
The billing records of Rice’s counsel showed that on January 9, 1986, Rice’s counsel received a phone call from Judge

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Reinhardt. The next entry, on January 13, is described as two
hours of “serious consultations and negotiations for pleabargaining 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

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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.
Despite the existence of other evidence against Pizzuto,
knowledge of the misconduct by the prosecutor and the judge
would have undermined any reasonable jury’s faith in the
entirety of the prosecution’s case. “Providing an accused with
the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”
Duncan v. Louisiana, 391 U.S. 145, 156 (1968). Any reasonable jury would have fulfilled this role as a safeguard had it
known that: (1) the supposedly impartial judge had in fact colluded with the prosecutor in securing Rice’s testimony to help
convict Pizzuto; (2) the judge and prosecutor promised Rice
a particular sentence before his guilty plea; (3) the judge and
prosecutor allowed Rice to perjure himself regarding his plea
bargain; and (4) the prosecutor and sheriff coached Angelinna
to testify and exploited her drug and alcohol addictions.
It is unfortunate that the shocking facts of this case were
not uncovered sooner. But fortunate, indeed, that they were

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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.