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Pizzuto v. Ramirez

United States Court of Appeals, Ninth Circuit

April 22, 2015

GERALD ROSS PIZZUTO, JR., Petitioner-Appellant,
v.
AL RAMIREZ, Warden of Idaho Maximum Security Institute, Respondent-Appellee

Argued and Submitted, San Francisco, California September 17, 2014

Page 1172

Appeal from the United States District Court for the District of Idaho. D.C. No. 1:92-cv-00241-BLW. B. Lynn Winmill, Chief District Judge, Presiding.

AFFIRMED.

SUMMARY [*]

Habeas Corpus

The panel affirmed the district court's denial of an Idaho state prisoner's motion under Fed.R.Civ.P. 60(b) and 60(d) for relief from a judgment denying his habeas corpus petition challenging his conviction and capital sentence for two counts of first-degree murder, two counts of felony murder, and one count of grand theft.

The panel concluded that the prisoner's arguments -- (1) that Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), gives cause for the state-law procedural default of three of the claims he raised in his initial federal habeas petition, and (2) that the state's lawyers perpetrated a fraud on the federal district court -- fall within the scope of permissible Rule 60(b) motions and are not a disguised second or successive habeas corpus petition.

The panel declined to extend Martinez to cover claims other than ineffective assistance of trial or appellate counsel to excuse procedural default. The panel held that the prisoner's two claims detailing the alleged biases and errors of a state court judge who presided over the guilt and sentencing phases of his trial are not the type of claims that can be pursued under Martinez. The panel held that the prisoner's claim that his trial and appellate attorney had a conflict of interest based on his relationship with the state trial judge is a Sixth Amendment ineffective-assistance-of-counsel claim eligible for consideration under Martinez. But the panel held that the conflict-of-interest claim is unsupported by the record and thus does not establish cause to excuse procedural default.

The panel held that the prisoner's contention that the state Attorney General's office perpetrated a fraud on the district court has so little basis in the record as to be wholly unpersuasive. The panel therefore agreed with the district court's denial of the prisoner's motion under Rules 60(b) and 60(d) for relief on that basis.

Heather E. Williams, Federal Defender; Joseph Schlesinger and Joan M. Fisher (argued), Assistant Federal Defenders, Office of the Federal Defender for the Eastern District of California, Sacramento, California, for Petitioner-Appellant.

Lawrence G. Wasden, Attorney General of Idaho; L. LaMont Anderson (argued), Deputy Attorney General, Capital Litigation Unit Chief, Boise, Idaho, for Respondent-Appellee.

Before: Raymond C. Fisher, Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge.

OPINION

Page 1173

GOULD, Circuit Judge:

Idaho state prisoner Gerald Ross Pizzuto, Jr., appeals from the denial of his motion under Federal Rules of Civil Procedure 60(b) and 60(d) for relief from the district court's judgment denying his petition for a writ of habeas corpus. Pizzuto, who has been sentenced to death, contends: (1) that Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), established the kind of extraordinary circumstances needed to justify reopening the judgment under Rule 60(b)(6), and that three of his claims for post-conviction relief relating to judicial bias and his trial counsel's conflict of interest, which were rejected by the Idaho Supreme Court as procedurally barred, are in fact eligible for consideration under Martinez ; and (2) that he is entitled to relief under Rules 60(b)(6) and 60(d)(3) because the states' attorneys had perpetrated a fraud on the federal district court. We have jurisdiction under 28 U.S.C. § 1291. We conclude that Pizzuto's claims relating to judicial bias do not fall within Martinez 's exception, his claim relating to his counsel's conflict of interest does not satisfy our circuit's test for establishing cause to excuse procedural default under Martinez, and he has not established a factual basis to show that the state's attorneys perpetrated a fraud on the court during his federal habeas proceedings. We affirm.

Page 1174

I

In 1986, Pizzuto was convicted of two counts of first-degree murder, two counts of felony murder, one count of robbery (which was later vacated by the Idaho Supreme Court), and one count of grand theft. The Idaho Supreme Court summarized his offenses:

Pizzuto approached [Berta Louise Herndon and her nephew, Delbert Dean Herndon] with a .22 caliber rifle as they arrived at their mountain cabin and made them enter the cabin. While inside, he tied the Her[n]dons' 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 Her[n]dons just for the sake of killing and subsequently joked and bragged about the killings to his associates.

Pizzuto v. State, 146 Idaho 720, 202 P.3d 642, 645 (Idaho 2008); see also Pizzuto v. Blades, 673 F.3d 1003, 1004 (9th Cir. 2012); Pizzuto v. Arave, 280 F.3d 949, 952-53 (9th Cir. 2002), dissent amended and superseded in part, 385 F.3d 1247 (9th Cir. 2004).

Pizzuto's state petition for post-conviction relief was denied by the state district court, and the Idaho Supreme Court affirmed. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (Idaho 1991). At trial, Pizzuto was represented by Nick Chenoweth and Scott Wayman, who also represented him during this first state post-conviction relief petition. During the post-conviction proceedings, Chenoweth and Wayman filed a motion to disqualify Judge George Reinhardt, who had presided over Pizzuto's guilt and sentencing phase trials, on the grounds that Judge Reinhardt could not be impartial based on allegations challenging his conduct during the trial and in relation to two of Pizzuto's co-defendants. Judge Reinhardt denied the motion.

Pizzuto filed his initial federal habeas corpus petition, which the state answered by arguing that many of Pizzuto's claims were not exhausted because they had not been brought in the initial state post-conviction proceeding. Pizzuto then returned to state court to exhaust those claims, but the Idaho courts held that those same claims were procedurally barred because they could have been brought in the first post-conviction proceeding. Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (Idaho 1995). When Pizzuto returned to federal court, the district court held that Pizzuto had not shown sufficient cause to excuse the procedural default of his ineffective assistance of counsel and judicial bias claims. We affirmed those rulings. Arave, 280 F.3d at 975-76.

After the United States Supreme Court's decision in Martinez v. Ryan, Pizzuto filed a Rule 60 motion, the denial of which is now before us. Seeking relief from the denial of his first habeas corpus petition, he argued first that Martinez established the kind of extraordinary circumstances needed to justify reopening the judgment under Rule 60(b)(6), and that three of the claims rejected by the Idaho Supreme Court as procedurally barred are eligible for consideration under Martinez. Pizzuto also argued that he is entitled to relief under Rules 60(b)(6) and 60(d)(3) because the state's attorneys had perpetrated a fraud on the federal district court. The claims that Pizzuto attempts to reopen are the thirteenth, fourteenth, and twentieth grounds for issuance of the writ in Pizzuto's initial ...


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