Argued and Submitted June 27, 2013—Seattle, Washington
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 1:05-cv-00516-BLW
Daniel J. Broderick, Federal Defender; Joseph Schlesinger and Joan M. Fisher (argued), Assistant Federal Defenders, Federal Defender of Eastern District of California, Sacramento, California, for Petitioner-Appellant.
Lawrence G. Wasden, Attorney General of Idaho, and 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.
Habeas Corpus/Death Penalty
The panel affirmed the denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence based on Atkins v. Virginia, 536 U.S. 304 (2002), which prohibits the execution of mentally retarded persons.
Idaho state law responded to Atkins by enacting state law prohibiting the execution of mentally retarded persons and defining "mentally retarded." The Idaho Supreme Court applied that law for the first time in petitioner's case. Observing that the United States Supreme Court in Atkins left the definition of "mentally retarded" broadly open for consistent state-court decisions, the panel held that the Idaho Supreme Court's decision was neither contrary to nor an unreasonable application of clearly established federal law.
GOULD, Circuit Judge
Gerald Ross Pizzuto, Jr., appeals the district court's denial of his successive petition for a writ of habeas corpus, in which he sought relief based on the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Supreme Court held that the Eighth Amendment prohibits the execution of mentally retarded persons. In response to Atkins, Idaho enacted a law prohibiting execution of mentally retarded criminals. Pizzuto challenges the Idaho Supreme Court's decision that his execution is not barred under that state law. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court's denial of Pizzuto's petition.
Pizzuto was convicted of two counts of first-degree murder, two counts of felony murder, one count of robbery, and one count of grand theft. The Idaho Supreme Court succinctly summarized what it considered key facts of the crime as follows:
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, 202 P.3d 642, 645 (Idaho 2008); see also Pizzuto v. Blades, 673 F.3d 1003, 1004 (9th Cir. 2012). Pizzuto was sentenced to death for the murders.
Pizzuto's conviction and sentence were upheld on direct appeal, except for his robbery conviction, which the Idaho Supreme Court held was a lesser-included offense of felony murder and so merged with that conviction. See State v. Pizzuto, 810 P.2d 680, 695 (Idaho 1991). Pizzuto's other convictions and his death sentence were upheld again on state and federal post-conviction review. See Pizzuto, 673 F.3d at 1007; see also Pizzuto v. State, 233 P.3d 86, 88–89 (Idaho 2010) (reciting the case history).
In his fifth state petition for post-conviction review, relevant here, Pizzuto contended that his death sentence was prohibited by Atkins. See Pizzuto, 202 P.3d at 644. Pizzuto moved for summary judgment on that issue. But the state trial court granted summary judgment in favor of the State because (1) Pizzuto did not raise a genuine issue of material fact to ...