state idaho, case motion to take judicial the state of
TRANSCRIPT
Electronically Filed5/10/2021 1:39 PMSecond Judicial District, Idaho CountyKathy Ackerman, Clerk of the CourtBy: Sherie Clark, Deputy Clerk
LAWRENCE G. WASDENAttorney GeneralState of Idaho
COLLEEN D. ZAHNDeputy Attorney GeneralChief, Criminal Law Division
L. LaMONT ANDERSON, ISB # 3687Deputy Attorney GeneralChief, Capital Litigation UnitSpecial Prosecuting AttorneyFor Idaho CountyP.O. Box 83720Boise, ID 83720-0010Telephone: (208) 334-4539Fax: (208) 854-8074E-rnail: lamont.anderson®ag.idaho.gov
Attorneys for Plaintiff
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF IDAHO
STATE OF IDAHO, CASE NO. CR—l985-22075
Plaintiff,
))))
vs. ) MOTION To TAKE JUDICIAL) NOTICE
GERALD Ross PIZZUTO, JR, )))))
Defendant.
COMES NOW, Plaintiff, State of Idaho (“state”), by and through its attorney, L.
LaMont Anderson, Deputy Attorney General, Chief, Capital Litigation Unit, and Special
Prosecuting Attorney for Idaho County, State of Idaho, and does hereby rnove pursuant to
Rule 201, I.R.E., for an order taking judicial notice of the following:
MOTION T0 TAKE JUDICIAL NOTICE — I
A. Order Denying Stay of Execution, State of Idaho V. Gerald Ross Pizzuto,
Idaho County District Court Case No. 22075, dated June 27, 1991.
B. Order Denying Motion for Stay ofExecution, State of Idaho V. Gerald Ross
Pizzuto, Jr., Idaho Supreme Court Docket Nos. 16489 and 17534, dated June 28, 1991.
C. Order Directing District Court to Issue Death Warrant, State of Idaho V.
Gerald Ross Pizzuto, Jr./Gerald Ross Pizzuto, Jr. V. State of Idaho, Idaho Supreme Court
Docket Nos. 16489 & 17534, dated June 9, 1992.
D. Death Warrant, State of Idaho V. Gerald Ross Pizzuto. Jr., Idaho County
District Court Case No. 22075, filed June 16, 1992.
E. Order Staying Execution and Appointing Counsel, Gerald Ross Pizzuto Jr.
V. A.J. Arave, Warden, et al., U.S. District Court of Idaho Case No. 92-0241 S EJL, dated
June 23, 1992.
F. Petition forWrit ofCertiorari, Gerald Ross Pizzuto V. Tyrell Davis. Warden,
Idaho Maximum Security Institution, United States Supreme Court Docket No. 19-8598,
dated May 28, 2020.
G. Motion to Alter or Amend Judgment Pursuant to Idaho Rule of CiVil
Procedure 60(b)(6), Gerald Ross Pizzuto, Jr. V. State of Idaho, Idaho County District Court
Case No. CV 03-34748, dated September 25, 2019.
H. Memorandum Opinion and Order on Motion to Alter or Amend Judgment
Pursuant to I.R.C.P. 60(b)(6), Gerald Ross Pizzuto, Jr. V. State of Idaho, Idaho County
District Court Case No. CV 03~34748, dated January 6, 2020.
I. Motion to Stay Remittitur and Brief in Support, Gerald Ross Pizzuto, Jr. V.
State of Idaho, Idaho Supreme Court Docket No. 47709—2020, filed April 22, 2021.
MOTION TO TAKE JUDICIAL NOTICE — 2
J. Reply in Support ofMotion to Stay Remittitur, Gerald Ross Pizzuto, Jr. V.
State of Idaho, Idaho Supreme Court Docket No. 47709-2020, filed April 28, 2021.
K. Order Denying Petition for Rehearing, Gerald Ross Pizzuto, Jr. v. State of
Idaho, Idaho Supreme Court Docket No. 47709—2020, dated April 29, 2021.
L. Order Denying Motion to Stay Remittitur, Gerald Ross Pizzuto, Jr. V. State
oildahg, Idaho Supreme Court Docket No. 47709-2020, dated April 29, 2021.
M. Remittitur, Gerald Ross Pizzuto, Jr. V. State of Idaho, Idaho Supreme Court
Docket No. 47709—2020, dated April 29, 2021.
N. Death Warrant, State of Idaho v. Gerald Ross Pizzuto. Jr., Idaho County
District Court Case No. CR-l985-22075, signed and dated May 6, 2021.
O. Response to Motion to Dismiss Amended Complaint, Gerald Ross Pizzuto
Jr. and Thomas Eugene Creech V. Josh Tewalt. et al., U.S. District Court of Idaho Case No.
l:20~cv—114—DCN, dated June 25, 2020.
“Under I.R.E. 201(d), a court must take judicial notice of records, exhibits, or
transcripts from the court file in the same or a separate case if requested by a party and
supplied with the necessary information.” Fortin V. State, 160 Idaho 437, 443 (Ct. App.
2016). Each of these documents are true and correct copies of pleadings or orders from
cases involving the underlying convictions and death sentence of Defendant Gerald Ross
Pizzuto, Jr. (“Pizzuto”), or court cases stemming from his collateral challenges to his
convictions and death sentence.
MOTION TO TAKE JUDICIAL NOTICE - 3
The state respectfully request that the Court grant the state’s Motion to Take
Judicial Notice and judicially notice the documents listed herein.
DATED this 10th day ofMay, 2020.
MOTION TO TAKE JUDICIAL NOTICE - 4
/S/ L. LaMont AndersonL. LaMONT ANDERSONDeputy Attorney GeneralChief, Capital Litigation Unit,Special Prosecuting AttorneyFor Idaho County
CERTIFICATE OF SERVICE
I HEREBY CERTIFY That on or about the 10th day ofMay, 2021, I caused to be
serviced a true and correct copy of the foregoing document by the method indicated below,postage prepaid Where applicable, and addressed to the following:
Jonah J. HorwitzFederal Defender Services of Idaho702 W. Idaho Street, Suite 900Boise, ID 83702Jonah [email protected]
Deborah A. CzubaFederal Defender Services of Idaho702 W. Idaho Street, Suite 900Boise, ID 83702Deborah A [email protected]
MOTION TO TAKE JUDICIAL NOTICE - 5
U.S. MailHand DeliveryOvernight MailFacsimile
X Electronic Court Filing
U.S. MailHand DeliveryOvernight MailFacsimile
X Electronic Court Filing
HH
/s/ L. LaMont AndersonL. LaMONT ANDERSONDeputy Attorney GeneralChief, Capital Litigation Unit,Special Prosecuting AttorneyFor Idaho County
APPENDIX A
. lDAHOCOUNTYDSTmQVtifl %i /s FlLED N”,
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OF#99: NM 81991
Anogfifgfiw THE _
GENERALRLOQEOFEgEHRWG/C fl/D Kflgi5;k\
IN THE DISTRICT COURT OF THE SECOND JUDICIAfifi%%é2i%éégigg*w~EfififOF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF IDAHQ
STATE OF IDAHO, Plaintiff,Case #22075
VS. ORDER
GERALD ROSS PIZZUTO,Defendant.
WHEREAS, a Motion to Stay Execution was filed herein,
and;
WHEREAS, the provisions of Idaho Code Section 19—2715
preclude the granting of the requested stay,IT IS HEREBY ORDERED that said motion be, and the same
is HEREBY DENIED.I /,—-—~\Dated this 27th day of June, 13917//
GEORGE REINHARDDistrict Judge
I, the undersigned Deputy Clerk, do hereby certify that Imailed a copy of the foregoing Order to the following persons onJune 28, 1991:Nick Chenoweth, Attorney at Law, PO Box 2040, Orofino, ID 83544Lynn Thomas, Deputy Attorney General, Statehouse Mail, Boise, ID83720
,
Fred lyon, Clerk of the Courts, Supreme Court, 451 West StateStreet, Boise, ID 83720
ROSE E.3GEHRING, CLERK
BY1(Zj;éi/éJ/4234Z%WZ//Deputy Clerk
ORDER
))))))))
APPENDIX B
V
In the Supreme Court of the State of Id313960I
We? 6"»ire 1. . e.AQk {? {3STATE OF IDAHO, 063”; J;ORDER DENYING MOTION48,},
Plaintiff—Respondent, FOR STAY OF EXECUTIO0N?v. NC. 16489 and 17534
GERALD ROSS PIZZUTO, JR.,V Ref. NO. 918*126
Defendant-Appellant.
A MOTION TO STAY EXECUTION was filed by Appellant June
27, 1991, requesting a stay of execution set for July 8, 1991, as
directed by the DEATH WARRANT filed June 24, 1991. The Court isfully advised; therefore, after due consideration,
"
IT IS HEREBY ORDERED that the MOTION TO STAY EXECUTIONSCHEDULED FOR JULY 8, 1991 be, and hereby is, DENIED.
DATED this ZZEBZQAY of June, 1991.
By Order of the Supreme Court
1118 fir...Robert E. Bakes, Chief Justice
ATTEST
derick C Lyon,/Clérkcc: Counsel of Record
District Court ClerkDistrict Judge George ReinhardtClerk, U. S. Supreme CourtClerk, U. S. District CourtDirector of Corrections Richard VernonWarden Arvon Arave, Maximum SecurityGovernor Cecil D. Andrus
63
))))))\I.I)\I.l
l!
//
APPENDIX C
In the Supreme Court of the State of Idaho
STATE OF IDAHO,
Plaintiff—Respondent, Nos. 16489 & 17534
v.O R D E R
GERALD ROSS PIZZUTO, JR.,Defendant-Appellant.
QEQLB”ESEE’QEEEEEST'ERTT
Petitioner—Appellant,v.
STATE OF IDAHO,
Respondent.
TO: SECOND JUDICIAL DISTRICT COURT, COUNTY OF IDAHO.
This Court announced its Opinion in these cases January15, 1991 affirming the death penalty and a Remittitur was issuedJune 5, 1991 followed by reissuance of a Death Warrant by theDistrict Court. Subsequently, the United States Supreme Courtissued a Stay of Execution of the Death Warrant June 28, 1991 untildisposition of a Petition for Writ of Certiarori which was deniedMarch 2, 1992. A copy of that Order is attached hereto and
incorporated by reference herein. As provided by the earlier Orderof the U.S. Supreme Court, their Stay of Execution of the Death
Penalty is terminated and there being no other matters pending inthis Court or any other Court; therefore, good cause appearing,
IT IS HEREBY ORDERED that the District Court shall
forthwith comply with the directive of the Opinion previouslyissued by this Court and shall issue a Death Warrant pursuant to
Chapter 27 of Title 19, Idaho Code.
DATED this 3:“day of June, 1992.By Order of the Supreme Court
ATTEST
((é7{?/7
ILLJ (:1: I @—
Czyéc‘ick0. Lyon, [Clerk‘
: Counsel of Record ‘
Robert E. Bakes, Chief Justice
District Court Clerk Rose GehringDistrict Judge George ReinhardtDirector of Corrections Richard VernonWarden of Maximum Security Arvon Arave
APPENDIX D
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.LO’CLOCKE M.
‘dUNl 6 1992ROSE E. GEHRING
‘D 'stricl Cour!CL
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D‘éDUW
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICTOF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF IDAHO
STATE OF IDAHO ,Plaintiff, Case #22075
DEATH WARRANT :
Supreme CourtNow}.To: Richard Vernon, Director of Corrections and Arvon
GERALD ROSS PIZZUTO, JR.,
))))
vs. )
;Defendant. )
)
Argyg, Warden, Idaho State Penitentiary:WHEREAS, the above—named Defendant, GERALD ROSS PIZZUTO,
JR., was found by a jury of twelve persons to be GUILTY of TWO
COUNTS OP‘ MURDER IN THE FIRST DEGREE, as so stated in their
verdicts rendered on March 27, 1986; and,
WHEREAS, on May 27, 1986, the above—entitled Court did
enter its Judgment and Sentence based upon said verdict; and,
WHEREAS, this Court has determined that the Defendant is
GUILTY OF TWO COUNTY OF MURDER IN THE FIRST DEGREE, and Should be
punished by the infliction of death in accordance with the
provisions of Idaho Code Section 19-2716; and,
WHEREAS, on June 9, 1992 an Order was entered by Robert
E. Bakes, Chief Justice of the Idaho Supreme Court, directing that
this Court issue a Death Warrant pursuant to Chapter 27 of Title
19, Idaho Code, a copy of which order is attached hereto as exhibit' _”’>‘3’VMv-qwmWwW-uun«qu.. . 1
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NOW, THEREFORE, YOU ARE HEREBY COMMANDED,111.8331;th M992
J],
.9.,
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9
Law. . ....
Idaho Code § 19—2716, and the Judgment and Order of this Court,
that on June 30, 1992 you shall cause the Defendant to suffer the
punishment of death in the manner prescribed by I.C. §19—2716
unless the execution of this warrant be stayed according to law,
and thereafter you shall make your return upon this warrant as
required by Idaho Code § 19-2718.
IN WITNESS WHEREOF, I have set hand t s 16th day of
June, 1992.
EORGE RBIDistrict Judge,
D‘I’
DEATH WARRANT - 2
APPENDIX E
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Jim ‘2 it: W?
OFFICE 0F THE A'fiORNEYGEY‘QEHAL
IN THE UNITED STATES DISTRICT'cpugmézwr‘v;1 kg. ;..\.-. .s
FOR THE DISTRICT OF IDAHO
GERALD ROSS PIZZUTO, JR., CIVIL N0. 92*0241 S EJLPetitioner,
V0
A. J. ARAVE, Warden,et al.,
GREEK BTRYifiG EXECUTIONAND APPOINTING COUNSEL
Respondents.
On June 22, 1992, Gerald Pizzuto filed an Application to
Proceed in Forma Pauperis, an Application for Stay of Execution,
and for Motion for Appointment of Counsel, in anticipation of
filing a Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 in a death penalty case. Pizzuto was sentenced to death
in Idaho County in 1985 for the robbery murder of two people who
had been camping in Ruby Meadows. His sentence was affirmed by
the Idaho Supreme Court on January 15, 1991, and the execution is
currently scheduled to occur on June 30, 1992.
The court has examined the application to proceed in forma
pauperis and has determined that it adequately establishes
petitioner’s indigency.This district’s Local Rule 9.4(d)(1) provides for the
appointment of counsel in death penalty cases prior to the filingof a petition for a writ of habeas corpus. ee D.Id.L.R. 9,4(d)
ORDER STAYING EXECUTIONAND APPOINTING COUNSEL, p.1
.//
))))))))))
(1) (1992). The appointed counsel shall be chosen from the panel
of qualified attorneys certified by the court. 1d. Petitioner
has requested the appointment of John L. Radin, a member of the
panel, and the court therefore approves his appointment as lead
counsel. Petitioner has further requested the appointment of
Robert Gombiner of Seattle, Washington to assist Mr. Radin. Mr.
Gombiner is not a member of this district’s panel, but has
expertise in this work and the court will therefore allow his
appointment. Mr. Gombiner is requested to forward his resume and
an application to proceed pro haec vice to the court.
As the Local Rules further provide, a stay of execution
shall be granted for the pendency of a first petition in this
court. D.Id.L.R. 9.4(f)(2) (1992). Accordingly, this court will
issue a stay of petitioner’s execution for the duration of his
proceedings before this court.
Based upon the foregoing, the court being fully informed in
the premises,
IT IS HEREBY ORDERED that petitioner’s application to
-proceed in forma pauperis i I!) GRAETED.
IT IS FURTHER ORDERED that John L. Radin is appointed as
lead counsel for petitioner in all proceedings in this court.
Associate counsel is Robert Gombiner.
IT IS FURTHER ORDERED that A STAY OF EXECUTION IS IMPOSED
for the duration of the proceedings in this court.
ORDER STAYING EXECUTIONAND APPOINTING COUNSEL, p.2
IT IS FURTHER ORDERED that counsel for petitioner shall file
his petition for writ of habeas corpus, raising all reasonably
known federal constitutional issues, on or before August 7, 1992.
IT IS FURTHER ORDERED that the respondents shall file an
answer to the Petition on or before September 11, 1992.Al
DATED this 23 day of June, 1992.
ED D J. L0 GEUNITED ATES D ICT JUDGE
ORDER STAYING EXECUTIONAND APPOINTING COUNSEL, p.3
APPENDIX F
No
IN THESUPREME COURT OF THE UNITED STATES
GERALD Ross PIZZUTO,
Petitioner,
V.
TYRELL DAVIS,WARDEN, IDAHO MAXIMUM SECURITY INSTITUTION
Respondent.
OnWrit of Certiorari to theUnited States Court ofAppeals for the Ninth Circuit
PETITION FORWRIT OF CERTIORARI
Deborah A. Czuba*Bruce D. LivingstonJonah J. HorwitzFEDERAL DEFENDER SERVICES OF IDAHO, INC.702 West Idaho Street, Suite 900Boise, Idaho [email protected]—381—5530
*Counsel of RecordHI
‘
*CAPITAL CASE*
QUESTIONS PRESENTED
Intellectual disability is comprised of three features: 1) subaverage
intellectual functioning; 2) significant limitations in adaptive skills; and 8)
manifestation before age 18. See Atkins v. Virginia, 586 US 304, 318 (2002).
Below, the Ninth Circuit denied relief on Petitioner’s Atkins claim because it
believed that even though the Idaho Supreme Court’s rejection of the claim was
inconsistent with the science that existed at the time, its decision on the first and
third prongs was not so unreasonable as to satisfy the federal habeas standard. The
questions presented are:
1. In determining intellectual disability, at the time of the pertinent state
court decision in 2008, whether Atkins and the Eighth Amendment
mandated the use of clinical standards for the determination of sub-
average intelligence as measured by intelligence quotient (“IQ”) scores,
including the standard error ofmeasurement (“SEM”)?
2. Atkins acknowledged that “clinical definitions ofmental retardation
require not only subaverage intellectual functioning, but also significant
limitations in adaptive skills that became manifest before age 18.” 586
US. at 818. Affidavits in the state court record averred that before
petitioner reached age 18 he had significant academic difficulties and
failing grades, and was forced to repeat two grades in school. No pre—18
PETITION FORWRIT OF CERTIORARI ~ Page i
IQ tests exist, but an IQ test at age 29 was 72. Expert affidavits
speculated that Petitioner’s mental functioning could have declined over
the years since he turned 18 due to epilepsy and drug abuse, but no
testing occurred and no expert averred that Petitioner’s IQ had declined.
In denying a hearing based in part on its View that Petitioner failed to
establish the pre-18 onset of adaptive limitations because of such
speculation, did the Idaho Supreme Court make an unreasonable
determination of fact?
PETITION FORWRIT OF CERTIORARI - Page ii
PARTIES TO THE PROCEEDINGS BELOW
In addition to those listed in the caption, the parties to the proceedings below
included former Wardens at the Idaho Maximum Security Institution, Keith Yordy,
Randy Blades, Al Ramirez, John Hardison, Gregory Fisher and Arvon Arave.
RELATED PROCEEDINGS
Idaho County District CourtCase No. 22075State U. PizzutoJudgment and Sentence entered, May 27, 1986
Idaho County District CourtCase No. 23001Pizzuto v. StatePost~conviction relief denied, Apr. 15, 1988
Idaho Supreme CourtCase Nos. 16489 and 17534State U. Pizzuto, 119 Idaho 742 (1991)Conviction, sentence and denial of post-conviction relief affirmed, Jan. 15, 1991
Supreme Court of the United StatesCase No. 91-5965Pizzuto v. Idaho, 503 US. 908 (1992)Cert. denied, Mar. 2, 1992
Idaho County District CourtCase No. 28001Pizzuto v. StatePost—conviction relief dismissed, Sept.29, 1994
Idaho Supreme CourtCase No. 21687State v. Pizzuto, 127 Idaho 469 (1995)Appeal dismissed, Aug. 3, 1995
Idaho County District CourtCase No. CV-1994~961
PETITION FORWRIT OF CERTIORARI —— Page iii
HI
Pizzuto v. StatePost—conviction relief denied, Mar. 19, 1997
United States District Court, District of IdahoCase No. CV-92—00241-S—AAMPizzuto v. AraueHabeas corpus denied, Apr. 7, 1997
Idaho County District CourtCase No. CV-1997-1837Pizzuto v. StatePost-conviction relief denied, May 26, 1998
Idaho Supreme CourtCase No. 24802Pizzuto U. State, 184 Idaho 798 (2000)Denial of post-conviction relief affirmed, Sept. 6, 2000
United States Court of Appeals, Ninth CircuitCase No. 97-99017Pizzuto U. Araue, 280 F.3d 949 (9th Cir. 2002)Denial of habeas corpus affirmed, Feb. 6, 2002
United States Court of Appeals, Ninth CircuitCase No. 01-71257Pizzuto u. FisherPermission to file second habeas petition denied, Feb. 14, 2002
United States Court ofAppeals, Ninth CircuitCase No. 9799017Pizzuto v. Arcwe, 385 F.8d 1247 (9th Cir. 2004)Dissenting opinion amended, Oct. 20, 2004
United States Court of Appeals, Ninth CircuitCase No. 97-99017Pizzuto U. Arave, 886 F.3d 988 (9th Cir. 2004)Stay lifted in light of Schriro u. Summerlin,542 US. 848 (2004), Oct. 20, 2004
Supreme Court of the United StatesCase No. 04-10640Pizzuto 0. Fisher, 546 US. 976 (2005)Cert. denied, Oct. 31, 2005
Idaho County District Court
PETITION FORWRIT OF CERTIORARI — Page iv
Case No. CV~2002-88907Pizzuto v. StatePost-conviction relief denied, Dec. 16, 2005
Idaho County District CourtCase No. CV-2003-84748Pizzato v. StatePost~conviction relief dismissed, Dec. 16, 2005
United States Court of Appeals, Ninth CircuitCase No. 05-77184Ptzzuto u. HardisonPermission to file successive habeas petition granted, May 16, 2006
Idaho Supreme CourtCase No. 32677/82678Idaho U. PizzutoAppeal dismissed, Dec. 28, 2006
Ada County District CourtCase No. CV-2006-5189Pizzuto v. StatePost-conviction relief denied, Oct. 81, 2007
Idaho Supreme CourtCase No. 82679Pizzuto v. State, 146 Idaho 720 (2008)Denial of post-conviction relief affirmed, Feb. 22, 2008
Supreme Court of the United StatesCase No. 06-11010Pizzuto U. Idaho, 552 US. 1227 (2008)Cert. granted, judgment vacated, and remanded in light ofDanforth v. Minnesota,552 US. 264 (2008), Feb. 25, 2008
Idaho Supreme CourtCase No. 35187Rhoades et al. v. State, 149 Idaho 130 (2010)Denial of post-conviction relief affirmed, Mar. 17, 2010
Idaho Supreme CourtCase No. 34845Pizzuto U. State, 149 Idaho 155 (2010)Denial of post-conviction relief affirmed, Mar. 19, 2010
PETITION FOR WRIT OF CERTIORARI — Page V
iII
Supreme Court of the United StatesCase No. 10-6377Pizzuto 1). Idaho, 562 US. 1182 (2011)Cert. denied, Jan.18, 2011
Supreme Court of the United StatesCase No. 10-7881Rhoades et al. 0. Idaho, 562 US. 1258 (2011)Cert. denied, Feb. 28, 2011
United States District Court, District of IdahoCase No. 1:05—cv-OO516-BLWPizzuto 1). BladesHabeas corpus denied, Jan. 10, 2012 H
!
United States Court ofAppeals, Ninth CircuitCase No. 11-70628Pizzuto U. Blades, 678 F.8d 1008 (9th Cir. 2012)Permission to file successive habeas petition denied, Mar. 8, 2012
United States District Court, District of IdahoCase No. 1:92-cv~00241-BLWPizzuto u. RamirezRule 60(b) denied, Mar. 22, 2013
United States Court ofAppeals, Ninth CircuitCase No. 12-99002Pizzuto 1). Blades, 729 F.8d 1211 (9th Cir. 2013)Denial of habeas corpus affirmed, Sept. 9, 2018
United States Court of Appeals, Ninth CircuitCase No. 12-99002Pizzuto 1). Blades, 758 F.3d 1178 (9th Cir. 2014)Withdrawing opinion, vacating district court opinion and remanding, Sept. 9, 2013
United States Court of Appeals, Ninth CircuitCase NO. 13-35448Pizzuto U. Ramirez, 783 F.8d 1171 (9th Cir. 2015)Denial of Rule 60(b) affirmed, Apr. 22, 2015
United States District Court, District of IdahoCase No. 1:05-cv-00516-BLWPizzuto U. Blades
PETITION FORWRIT OF CERTIORARI — Page vi
Habeas corpus denied on remand, Nov. 28, 2016
United States Court of Appeals, Ninth CircuitCase No. 16-86082Pizzuto U. Yordy, 947 F.8d 510 (9th Cir. 2019)Denial of habeas corpus affirmed, Dec. 31, 2019
Idaho County District CourtCase No. CV-2003-84748Pizzuto v. StateRule 60(b) denied, Jan. 6, 2020
Idaho Supreme CourtCase No. 32679-2006Pizzuto v. StateMotion to Recall Remittitur denied, May 14, 2020
Idaho Supreme CourtCase No. 47709-2020Pizzuto v. StateReview of Rule 60(b) denial pending
PETITION FORWRIT OF CERTIORARI ~ Page vii
Hi
TABLE OF CONTENTS
QUESTIONS PRESENTED i
PARTIES TO THE PROCEEDINGS BELOW iii
RELATED PROCEEDINGS iiiTABLE OF CONTENTS viii
APPENDICES ix
OPINION BELOW 1
JURISIDICTIONAL STATEMENT 1
CONSTITUTIONAL PROVISIONS INVOLVED 1
STATE STATUTES INVOLVED 2
STATEMENT OF THE CASE 3
REASONS FOR GRANTING THE WRIT 11
I. The Decision Below Is In Conflict With This Court And Another Circuit OnWhether Atkins Adopted The SEM 11
A. The Panel Decision Conflicts With Atkins 12
B. The Panel Decision Conflicts With Another Court ofAppeals Decision AndThis Court Should Resolve the Circuit Split 18
C. This Case Is A Good Vehicle For Resolving the Circuit Split 21
II. The State Court Made An Unreasonable Determination of Fact in Concludingthat Petitioner Failed to Make a Prima Facie Showing That Onset of HisDisability Occurred Before Age 18 22
CONCLUSION 29
PETITION FORWRIT OF CERTIORARI — Page viii
fIf
APPENDIX A:
APPENDIX B:
APPENDIX C:
APPENDIX D:
APPENDIX E:
APPENDIX F:
APPENDIX G:
APPENDIX H:
APPENDIX I:
APPENDICES
Order and Amended Opinion of the United StatesCourt ofAppeals, Ninth Circuit, No. 16-36082,December 31, 2019 App.001—021
Notice of Extension of Time by Justice Kagan,Letter from the Clerk of the Supreme Court ofthe United States, No. 19A1000, March 12, 2020 App.022—028
Memorandum Decision and Order on Remand,United States District Court for the District ofIdaho, No. 1:05—cv-00516-BLW,November 28, 2016 App.024~—O48
Memorandum Decision and Order, United StatesDistrict Court for the District of Idaho,N0. 1:05-cv-516-BLW, January 10, 2012. . App.049—091
Opinion of the Supreme Court of Idaho,No. 82679, February 22, 2008 App.092~107
Opinion and Order, District Court of Idaho County,Idaho, No. CV 03—34748, December 16, 2005 App.108~110
Petition for Postconviction Relief RaisingAtkins v. Virginia, with Selected Affidavits inSupport, District Court of Idaho County, Idaho,No. CV 08-84748, June 18, 2003 App,111~145
Affidavits in Support ofAtkins petition, DistrictCourt of Idaho County, Idaho, No. CV 08-84748,December 19, 2005 App.146—164
Affidavit of Craig W. Beaver, PhD, District CourtofIdaho County, Idaho, No. CV 03-84748,September 15, 2004 App.165—168
PETITION FOR WRIT OF CERTIORARI — Page ix
TABLE OF AUTHORITIES
Federal CasesAtkins U. Virginia, 586 US. 804 (2002)
Brumfield U. Cain, 135 S. Ct. 2269 (2015)Hall U. Florida, 572 US. 701 (2014)Pizzuto U. Araue, 280 F.3d 949 (9th Cir. 2002)Pizzato U, AraUe, 885 F.8d 1247 (9th Cir. 2004)Pizzuto U. Blades, 729 F.3d 1211 (9th Cir. 2018)Pizzato U. Blades, 758 F.8d 1178 (9th Cir. 2014)Pizzuto U. Blades, 988 F.8d 1166 (9th Cir. 2019)Pizznio U. Yordy, 947 F.8d 510 (9th Cir. 2019)
Ring U. Arizona, 586 US. 584 (2002)
Roper U. Simmons, 548 US. 551 (2005)
Shoop U. Hill, 139 S. Ct. 504 (2019)Smith 0. Sharp, 985 F.8d 1064 (10th Cir. 2019)
Federal Constitutional ProvisionsU.S. CONST. amend. VIII
Federal Statutes28 U.S.C.§ 1254
28 USC. § 2254
State CasesPizzuto U. State, 10 P.3d 742 (Idaho 2000)
Pizzuto U. State, 202 P.8d 642 (Idaho 2008)
Pizzuto U. State, 908 P.2d 58 (Idaho 1995)
Rhoades U. State, 288 P.3d 61 (Idaho 2010)
State U. Pizzuto, 810 P.2d 680 (Idaho 1991)
State StatutesIdaho Code § 19-2515
PETITION FORWRIT OF CERTIORARI ~ Page x
passimpassirn
7, 16, 17
passim8
29
14, 15
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passimpassim
8
passim8
8
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2, 5, 18
66771
Petitioner Gerald Ross Pizzuto respectfully submits this petition for a writ of
certiorari to review the judgment of the United States Court ofAppeals for the
Ninth Circuit.
OPINION BELOW
A copy of the opinion below is attached as Appendix A, at App. 1—21, and is
available at Pizzuto v. Yordy, No. 16-36082, 947 F.3d 510 (9th Cir. 2019) (per
curiam) (“Pizzuto VI”).
JURISIDICTIONAL STATEMENT E
On August 14, 2019, the United States Court of Appeals for the Ninth Circuit
issued a decision. Pizzuto 1). Blades, 988 F.8d 1166 (9th Cir. 2019) (per curiam).
After Mr. Pizzuto timely moved for rehearing and rehearing en banc, the Ninth
Circuit issued an amended opinion on December 81, 2019, while denying the
petitions for panel rehearing and rehearing en banc. Pizzuto VI, 947 F.8d at 514,
App. at 5. On March 12, 2020, Justice Kagan extended the deadline for filing this
petition for a writ of certiorari until May 29, 2020. Appendix B, App. at 22. This
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Eighth Amendment to the United States Constitution,
which reads in pertinent part:
Excessive bail shall not be required, nor excessive fines imposed, norcruel and unusual punishments inflicted.
U.S. CONST. amend. VIII.
PETITION FOR WRIT OF CERTIORARI —- Page 1
FEDERAL STATUTES INVOLVED
The instant case implicates 28 U.S.C. § 2254(d), a clause stating:
an application for a writ of habeas corpus on behalf of a personin custody pursuant to the judgment of a State court shall not begranted with respect to any claim that was adjudicated on themerits in State court proceedings unless the adjudication of theclaim“
(1) resulted in a decision that was contrary to, or involvedan unreasonable application of, clearly establishedFederal law, as determined by the Supreme Court ofthe United States; or
(2) resulted in a decision that was based on anunreasonable determination of the facts in light of theevidence presented in the State court proceeding.
STATE STATUTES INVOLVED
This petition involves Idaho Code § 19-2515A, which is entitled “Imposition
of death penalty upon mentally retarded person prohibited,” and provides:
(1) As used in this section:
(a) “Mentally retarded” means significantly subaverage generalintellectual functioning that is accompanied by significantlimitations in adaptive functioning in at least two (2) of thefollowing skill areas: communication, self-care, home living,social or interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health andsafety. The onset of significant subaverage general intelligencefunctioning and significant limitations in adaptive functioningmust occur before age eighteen (18) years.
(b) “Significantly subaverage general intellectual functioning”means an intelligence quotient of seventy (7O) or below.
**‘k
(3) If the court finds by a preponderance of the evidence that thedefendant is mentally retarded, the death penalty shall not be imposed.
PETITION FOR WRIT OF CERTIORARI —- Page 2
***
(6) Any remedy available by post-conviction procedure or habeas corpusshall be pursued according to the procedures and time limits set forth insection 19-2719, Idaho Code.
STATEMENT OF THE CASE
This case involves a death—sentenced inmate seeking relief under Atkins U.
Virginia, 586 US. 804 (2002). Long before Atkins was announced, Mr. Pizzuto was
convicted of two counts of first-degree murder and sentenced to death by a judge1 in
1986. State v. Pizzuto, 810 P.2d 680, 687 (Idaho 1991) (“Pizzuto I”). As part of
Idaho’s consolidated post-conviction and appeal procedures, Mr. Pizzuto filed a post-
conviction relief petition following sentencing, which was dismissed after a hearing
and affirmed in the consolidated appeal along with the convictions and death
sentences. Id. at 688, 716.
In 2003, after Mr. Pizzuto had made three additional challenges in state post-
conviction that are not relevant to the intellectual disability issue in this case,2 he
sought post-conviction relief based on this Court’s decision in Atkins. App. at 111—
145 (petition with pertinent attached exhibits and supporting affidavits). To
1 Mr. Pizzuto was sentenced by a judge because his case was tried before this Courtdeclared the practice unconstitutional in Ring v. Arizona, 586 US. 584 (2002).
2 Mr. Pizzuto sought post-conviction reliefwithout success in three separate actionsthat did not address the issue of intellectual ability that is at issue in this petition.See Pizzuto v. State, 903 P.2d 58 (Idaho 1995) (“Pizzuto II”) (raising ineffectiveassistance of counsel, which had not been raised in the first post—conviction
petition); Pizzato v. State, 10 P.3d 742 (Idaho 2000) (“Pizzuto III”) (raising the
State’s suppression of exculpatory and impeaching material); Rhoades v. State, 283
P.8d 61 (Idaho 2010) (“Pizzuto IV”) (a consolidated appeal on behalf ofMr. Pizzutoand other Idaho death row inmates raising the retroactivity of Ring).
PETITION FORWRIT OF CERTIORARI —— Page 3
establish his intellectual disability, Mr. Pizzuto expressly noted his verbal IQ score
of 72, “which is within the plus or minus 5 point range, characterizing him as
having significantly subaverage intellectual functioning.” App. at 115 (citing this
Court’s approval of the clinical standards in Atkins, 586 U.S. at 308 n.3, 309 n5).
See App. at 129 (report of 72 verbal IQ). Petitioner sought additional testing.
Petitioner’s Excerpts of Record (“PER”), Pizzuto v. Yordy, 9th Cir., No. 16-86082,
Vol. 4 at 881~38 [Dkt 11-4 at 150—52].3 The State moved for summary dismissal of
the petition. Respondent’s Excerpts of Record (“BER”), Vol. 2 at 227~28 [Dkt. 88-2
at 155—56]. Petitioner moved for summary judgment. PER, Vol. 4 at 889 [Dkt. 11-4
at 158]. Petitioner filed additional affidavits documenting his intellectual failings
and sustained history of academic failure, including being retained twice to repeat a
grade. App. at 146—464. In 2005, without granting an evidentiary hearing or
additional testing, the district court summarily dismissed the petition, finding the
petition was untimely and failed to raise a genuine issue ofmaterial fact. App. at
109. Mr. Pizzuto timely appealed. PER, Vol. 4 at 841 [Dkt. 11-4 at 160].
In 2008, the Idaho Supreme Court affirmed the post-conviction court’s
dismissal of the petition. Pizzuto u. State, 202 P.8d 642, 657 (Idaho 2008) (“Pizzuto
V’), App. at 107. The state supreme court first found the district court erred in its
finding of untimeliness, and ruled that the petition was “filed timely.” Id. at 649,
App. at 99. Nevertheless, the court affirmed on the merits.
3 All of the record citations in this petition, both Petitioner’s and Respondent’s, arefrom the Excerpts of Record in the U.S. Court of Appeals for the Ninth Circuit, inthe case below.
PETITION FORWRIT OF CERTIORARI — Page 4
In his brief, Mr. Pizzuto expressly averred that he was intellectually disabled
based on his submission of evidence of his “verbal IQ of 72, pre-18 etiology of brain
damage and significant evidence of pre-18 adaptive skills deficits in numerous
areas of functioning.” RER, Vol. 2 at 122 [Dkt 88-2 at 50]. He challenged the Idaho
statute’s requirement, Idaho Code § 19-2515A(1)(b), that an IQ be 70 or below,
arguing: “This fixed cutoff is inconsistent with clinical definitions and the
limitations of IQ testing, and creates an intolerable risk that a mentally retarded
person will be executed in violation of the Eighth Amendment.”4 RER, Vol. 2 at 125
[Dkt. 88-2 at 53]. Mr. Pizzuto argued that in Atkins this Court recognized that the
upper range for IQ for an intellectually disabled individual was “between 70 and
75.” Id. at 126 [Dkt 88—2 at 54]. However, the Idaho Supreme Court affirmed the
dismissal on the merits, based in part5 on its finding that the SEM for IQ scores of
“plus or minus five points” did not apply to Mr. Pizzuto’s 72 verbal IQ score, because
“the legislature did not require the IQ score be within five points of 70 or below. It
required that it be 70 or below.” Id. at 651, App. at 101 (noting Mr. Pizzuto’s
argument that the error rate would lower his IQ into the statutory range of 70 or
below).
4 The authorities at one time referred to “mental retardation” rather than“intellectual disability.” However, the latter phrase is now the accepted one. See
Brumfield U. Cain, 135 S. Ct. 2269, 2274 n.1 (2015). Mr. Pizzuto will accordinglyuse the phrase “intellectual disability” except when quoting older material.
5 In state court at both the post-conviction court and on appeal, Mr. Pizzuto soughtadditional testing to supplement the partial score, but he was denied. See Pizzuto
V, 202 P.8d at 655-56 & n.9, App. at 105—06.
PETITION FOR WRIT OF CERTIORARI — Page 5
Though the lower court had held no hearing and made no finding regarding a
change in Mr. Pizzuto’s IQ, the supreme court noted that in order for him to prevail
the lower court had “to infer that Pizzuto’s IQ had not decreased during the eleven-
year period from his eighteenth birthday to the date of his IQ test.” Id. The
supreme court concluded that the district court “was not required to make that
inference in light of the opinions of Pizzuto’s experts that his long history of drug
abuse and his epilepsy would have negatively impacted his mental functioning.” Id.
Neither ofMr. Pizzuto’s experts, Dr. Craig Beaver and Dr. James Merikangas,
suggested that his IQ declined. See App. at 182—145. Despite addressing an
affidavit indicating in 1996 that Pizzuto had “possible mild mental retardation” and
met the standard of the Idaho statute, the supreme court concluded that “is not an
opinion that [Mr Pizzuto] had an IQ of 70 or below twenty-two years earlier.”
Pizzuto V, 202 P.8d at 652, App. at 102. The supreme court based this conclusion on
its determination that Dr. Beaver “was talking about Pizzuto’s present condition,
not his condition at age 18.” Id. at 653, App. at 108.
Mr. Pizzuto sought federal habeas corpus relief to pursue his Atkins claim.6
PER, Vol. 1 at 101 [Dkt. 11-1 at 106]. The federal district court agreed that the
state court applied a “strict interpretation” of the Idaho statute defining intellectual
6 Because he had already litigated a federal habeas petition commenced afterPizzuto I, see Pizzuto u. Araue, 280 F.8d 949 (9th Cir. 2002), dissenting opinionamended, 885 F.8d 1247 (9th Cir. 2004), cert. denied, Pizzuto 0. Fisher, 546 US. 976(2005), he sought and obtained permission from the Ninth Circuit to file a new
habeas petition. See Pizzuto VI, 947 F.3d at 519, App. at 9 (“We granted Pizzuto
permission to file a successive federal habeas petition on his Atkins claim.”).
PETITION FORWRIT OF CERTIORARI —~ Page 6
disability, “holding that any full scale score above ’70 fails as a matter of law.” App.
at 66. Based on the state court record,7 the district court determined that the Idaho
Supreme Court’s refusal to adjust Mr. Pizzuto’s IQ score of 72 through consideration
of the five point SEM did “not amount to an objectively unreasonable application of
clearly established federal law.” App. at 67. This was so, the district court
determined, because in Atkins this Court “did not constitutionalize any specific
definition.” App. at 67~68.
Mr. Pizzuto appealed, and initially, the Ninth Circuit affirmed. The court of
appeals held that “Atkins does not mandate any particular form of calculating le,including the use of [the] SEM.” Pizzuto v. Blades, 729 F.8d 1211, 1218 (9th Cir.
2018).8 However, before that opinion became final, it was withdrawn in an order
that also vacated the district court’s order and remanded the case to the district
court for further proceedings consistent with Hall v. Florida, 572 U.S. 701 (2014).
Pizzuto v. Blades, ’758 F.8d 1178, 1179 (9th Cir. 2014).
7 The federal district court held an evidentiary hearing. App. at 55. Additionaltesting was allowed, and new IQ scores of 60 and 92 were admitted, in addition to
the verbal IQ score of 72 that was before the state court. See App. at 75.Alternatively, under de novo review, the district court determined that Mr. Pizzutodid not meet the intellectual functioning prong of the test for intellectual disability.On appeal, the Ninth Circuit concluded that it could not consider the district court’sconclusions regarding new evidence that was not before the state court. Pizzuto u.
Blades, 729 F.3d 1211, 1224 (9th Cir. 2018) (citing Cullen v. Pinholster, 563 U.S.170, 180-85 (2011)), opinion withdrawn, Pizzuto v. Blades, 758 F.8d 1178, 1179 (9thCir. 2014).
8 In this petition, unless otherwise noted, all internal quotation marks and citationsare omitted, all alterations are in original, and all emphasis is added.
PETITION FORWRIT OF CERTIORARI —— Page 7
On remand, the district court again denied the petition. App. at 48. The
court acknowledged that “rejecting an Atkins claim based solely on a hard IQ score
cutoffwithout consideration of the SEM is unconstitutional,” but attributed that
principle to Hall. App. at 83. The district court acknowledged that “the Idaho
Supreme Court appears to have interpreted the statute as prohibiting consideration
of the SEM—that is, the Idaho statute established a hard IQ score cutoff of ’70.”
App. at 38 (citing Pizzuto V, 202 P.8d at 651). But the district court held that
“At/tins did not hold that a hard IQ score cutoff was unconstitutional, nor did it
plainly require consideration of an IQ test’s SEM with respect to the first prong.”
App. at 41. Despite the district court’s acknowledgement that Hall’s “repudiation of
a hard IQ score cutoff of 7O flowed directly from Atkins,” it concluded that “the
Idaho Supreme Court’s refusal to consider the SEM was not contrary to, or an
unreasonable application of, the Atkins decision,” and denied relief under 28 U.S.C.
§ 2254(d)(l). App. at 42-43. The district court also found that the Idaho Supreme
Court’s determination that Mr. Pizzuto had not shown a pre-18 IQ of 7O or below
was not unreasonable because the supreme court “relied on credible evidence that
Pizzuto’s medical problems and drug abuse could very well have caused his
intellectual functioning to decline in the eleven years between his eighteenth
birthday and the date of the IQ test resulting in a verbal score of 72.” App. at 46.
The district court also denied relief under de novo review. App. at 46—47.
While recognizing that the Idaho Supreme Court’s adjudication ofMr.
Pizzuto’s Atkins claim “was inconsistent with the clinical definitions in place at the
PETITION FORWRIT OF CERTIORARI —— Page 8
time of the state court’s decision,” in large part because of its confusion about the
SEM, the court of appeals nevertheless affirmed the district court decision to deny
habeas relief on appeal. Pizzuto VI, 947 F.3d at 525, App. at 14. The panel
determined that reliefwas barred under § 2254(d), because the Idaho Supreme
Court’s decision was not contrary to law, did not involve an unreasonable
application of clearly established federal law, as determined by this Court, and did
not involve an unreasonable determination of the facts in light of the evidence
F‘ll
presented in state court. Id. at 514—15, App. at 5. The panel did not address
Whether Mr. Pizzuto was intellectually disabled, nor whether his execution would
violate the Eighth Amendment. Id. at 515, App. at 5.
In determining that the Idaho Supreme Court’s bright line IQ cutoff at 7O
was not contrary to Atkins, the panel noted Atkins’ extensive quotation of the
clinical standards, including this Court’s statement that “an IQ between 70 and 75
or lower is typically considered the cutoff IQ score for the intellectual function
prong of the mental retardation definition.” Id. at 515—16, App. at 5—7. However,
the panel stated that Atkins “did not expressly adopt these clinical definitions of
intellectual disability,” because Atkins left to the States “the task of developing
appropriate ways to enforce the constitutional restriction upon [their] execution of
sentences.” Id. at 516, App. at 7 (quoting Atkins, 536 U.S. at 817).
The panel acknowledged that Hall made clear that a strict IQ cutoff of '70 was
unconstitutional. Id. at 520, App. at 10. The strict IQ cutoff ignored the clinical
standards’ definition of the intellectual functioning prong with respect to the IQ
PETITION FOR WRIT OF CERTIORARI — Page 9
“test’s acknowledged and inherent margin of error,” which arose from the fact that
an IQ score is only accurate for a range within an SEM of plus or minus five points.
Id. at 519—20, App. at 9—10. Though the panel deemed Atkins not to have
“expressly adopt[ed]” the clinical definitions, id. at 516, App. at ’7, it quoted Hall’s
statement that “[t]he clinical definitions of intellectual disability, which take into
account that IQ scores represent a range, not a fixed number, were a fundamental
premise ofAtkins,” and that Atkins “provide [d] substantial guidance on the
III
definition of intellectual disability.” Id. at 520, App. at 10. However, having
deemed these points not within Atkins’ holding, the panel declined to apply them to
the Idaho Supreme Court’s 2008 decision, because Hall was decided in 2014 and
was not clearly established federal law under §2254(d) for purposes ofMr. Pizzuto’s
case. Id. at 525, App. at 18-14 (finding Pizzuto V not contrary to Atkins). For the
same reason, the panel held that Pizzuto V was not an unreasonable application of
Atkins. See id. at 526—27, App. at 14—16.
In sum, the panel agreed that the Idaho Supreme Court’s’ decision violated
Hall, id. at 528, App. at 16; and “was contrary to the clinical definitions in place at
the time” of the state court decision. Id. at 526, App. at 15. But “because it was not
apparent in 2008 that states were required to adhere closely to the clinical
definitions of intellectual disability,” the panel determined that “the Idaho Supreme
Court’s application of a ‘hard IQ—70 cutoff was not an ‘unreasonable application’ of
Atkins.” Id. at 527, App. at 16.
PETITION FORWRIT OF CERTIORARI — Page 10
With respect to the state court determination that no pre-18 IQ had been
shown, the panel agreed with the state court’s reasoning. Id. at 531—82, App. at 18——
19. The panel recognized the state court’s reliance on the statements in Mr.
Pizzuto’s experts’ affidavits, i.e., that Pizzuto’s drug abuse “has caused him further
neurological dysfunction” and that “[o]ften patients that have persistent seizure
disorders will decline over time in their overall mental abilities.” Id. at 532, App.
at 19. The panel acknowledged Pizzuto’s argument that the affidavits did not state
his IQ ever declined and that the inference drawn by the supreme court was
unreasonable. Id. (citing Pizzuto’s opening brief). But the panel concluded that “it
was not unreasonable for the Idaho Supreme Court to determine that the state trial
court reasonably could have inferred that Pizzuto’s IQ may have declined as a result
of drug abuse or epilepsy.” Id.
After an extension of time from Justice Kagan, App. at 22, Mr. Pizzuto then
filed this timely certiorari petition.
REASONS FOR GRANTING THEWRIT
I. The Decision Below Is In ConflictWith This Court And AnotherCircuit OnWhether Atkins Adopted The SEM.
Atkins launched a sea change in categorically outlawing the execution of
those murderers who are intellectually disabled. With substantially more than
three thousand people on death row at the time of that decision,9 most ofWhose
9 See Thomas P. Bonczar and Tracy L. Snell, “Capital Punishment, 2002,” US.Dept. of Justice, Bureau of Justice Statistics Bulletin, at 3 (indicating 3,557 personsunder sentence of death in 2002, and in excess of 3,000 since the early to mid-
19908), available at https://www.bisgov/content/pub/pdf/cpOfapdf.
PETITION FORWRIT OF CERTIORARI ~ Page 11
appeals were already final, it is especially important to define the constitutional
floor of those who qualify for the exclusion based on the Atkins decision itself.
Uniformity on a national scale is paramount to prevent the selective execution of
intellectually disabled inmates who happened to be convicted in states like Idaho
that defined the term parsimoniously and below the constitutional floor this Court
set in Atkins. It is especially important to clarify the constitutional floor because, as
this case demonstrates, there is confusion in the lower courts over the scope of
Atkins. In particular, the panel decision is in conflict with language from Atkins
itself. See Sup. Ct. R. 10(0). Moreover, there is a conflict in the circuit courts of
appeal on this issue, as the panel decision is in conflict with Smith v. Sharp, 985
F.3d 1064 (10th Cir. 2019), petition for cert pending, No. 19-1106, and this Court
should grant this petition for that reason, too. Sup. Ct. R. 10(a). The likelihood is
great that differing standards as set forth in the panel decision and Smith will lead
to the execution of intellectually disabled persons contrary to Atkins’ mandate and
arbitrary executions of some inmates in certain states where they would be
exempted in other jurisdictions. This Court should accordingly take up the question
ofwhether the use of a bright line 70-lQ cutoff that did not take into consideration
the SEM was contrary to or an unreasonable application ofAtkins. This petition
presents the question clearly and is an excellent vehicle to address the question.
A. The Panel Decision Conflicts With Atkins.
Although the panel recognized that the Idaho Supreme Court opinion at issue
was “inconsistent with the clinical definitions in place at the time” regarding IQ
PETITION FORWRIT OF CERTIORARI ~ Page 12
scores and the need to take into account the SEM, it upheld Mr. Pizzuto’s death
sentence on the theory that Atkins did not embrace that aspect of the clinical
definitions. Pizzuto, 947 F.8d at 525—29, App. at 13—17. However, as set forth
below, Atkins explicitly adopted the minimum IQ score required by the clinical
definitions. Accordingly, the panel misapplied this Court’s precedent.
By way of background, intellectual disability is comprised of three features:
1) subaverage intellectual functioning; 2) significant limitations in adaptive skills;
and 8) manifestation before age 18. See Atkins, 586 U.S. at 318; Idaho Code § 19-
2515A(1)(a). IQ scores go to the first prong of this three—prong test. See Atkins, 536
U.S. at 309 n.5 (“an IQ between 7O and '75 or lower is typically considered the
cutoff IQ score for the intellectual function prong of the mental retardation
definition”); Idaho Code § 19-2515A(1)(b) (Idaho law defines subaverage intellectual
functioning as an IQ “of seventy (7O) or below”).
In Mr. Pizzuto’s state appeal, “the record included only one IQ test score,” a
'72 on the verbal sub-test. Pizzuto VI, 947 F.8d at 524, App. at 18. Mr. Pizzuto
explained to the Idaho Supreme Court that as a scientific matter an IQ score is only
a range, going up and down five points from the number chosen, and as a result a
score of ’72 ought not to preclude relief even with a '70 cutoff. See Pizzuto V, 202
P.3d at 651, App. at 101. The Idaho Supreme Court was unpersuaded, declaring:
“the legislature did not require that the IQ score be within five points of 7O or
below. It required that it be 7O or below.” Id. On habeas review, the panel agreed
with Mr. Pizzuto’s reading of the clinical standard, finding that it “requires an IQ of
PETITION FORWRIT OF CERTIORARI — Page 13
approximately 70 or below” and that “individuals with IQs between 7O and 75” can
be intellectually disabled. Pizzuto VI, 947 F.3d at 526, App. at 14. Nevertheless,
the panel declined to grant relief because, in its View, the Idaho Supreme Court did
not unreasonably apply Atkins under 28 U.S.C. § 2254(d)(1), as at the time of its
decision “it was not yet apparent that states were required to define intellectual
disability in accordance with these prevailing clinical definitions.” Pizzuto VI, 947
F.8d at 526, App. at 15.
That conclusion conflicts with Atkins itself, which endorsed the very
definition in question. In particular, Atkins expressly addressed the upper limit of
an intellectually disabled person’s IQ score. The Court noted explicitly that “the
cutoff IQ score for the intellectual function prong” of intellectual disability is
“between 70 and 75 or lower.” Atkins, 586 US at 309 n.5.
Brushing over that language, the panel wrongly concluded that Atkins did
not adopt any aspect of the clinical definition of intellectual disability and therefore
held that Atkins did not clearly establish that the upper limit for IQ scores extended
to 75. Pizzuto VI, 947 F.8d at 525—28, App. at 18416. The panel relied on a
mistaken view ofAtkins as informed by an overly broad reading of Shoop D. Hill,
189 S. Ct. 504 (2019) (per curiam). Pizzuto VI, 947 F.8d at 527, App. at 15. The
panel misread Shoop’s statement that “Atkins gave no comprehensive definition of
‘mental retardation’ for Eighth Amendment purposes,” Shoop, 189 S. Ct. at 507.
See Pizzuto VI, 947 F.8d at 527, App. at 15. That Atkins lacked a “comprehensive”
definition of intellectual disability does not mean that it failed to prescribe any
PETITION FORWRIT OF CERTIORARI — Page 14
aspect of the clinical definition. However, the panel broadly interpreted Shoop to
have held that Atkins required application of no aspect of the clinical definition, and
as a consequence the panel erroneously held that “the Idaho Supreme Court’s
application of a ‘hard IQ-7O cutoff was not an ‘unreasonable application’ ofAtkins.”
Id., App. at 15—16.
What the panel also overlooked is that Shoop turned on adaptive deficits,
which are the second prong of intellectual disability, not on IQ score, which is the
first prong. Shoop, 189 S. Ct. at 506 (explaining the Sixth Circuit’s opinion below
questioned the Ohio courts’ overemphasis on “adaptive strengths” and applied
Moore v. Texas, 187 S. Ct. 1089 (2017)). The petitioner in Shoop defended the Sixth
Circuit’s opinion that “Moore merely spelled out what was clearly established by
Atkins regarding the assessment of adaptive skills.” Shoop, 189 S. Ct. at 506. The
Supreme Court rejected that argument and reversed because the Sixth Circuit “did
not explain how the rule it applied can be teased out of ’ Atkins. Id. at 508. The
Court acknowledged that Atkins addressed the “meaning” of intellectual disability
and “included as a necessary element ‘significant limitations in adaptive skills
that became manifest before age 18.”’ Id. The Shoop Court concluded, however,
that “Atkins did not definitively resolve how that element was to be evaluated,” i.e.,
the adaptive-skills element, and instead left its application to the States. Id.
The passage ofAtkins, discussed above in Shoop as identifying the “meaning”
of intellectual disability, explicitly referenced the “clinical definitions” as the source
of that meaning. Atkins, 536 US. at 318. Atkins prefaced that shorthand
PETITION FOR WRIT OF CERTIORARI ~ Page 15
statement of the elements of intellectual disability by noting that the clinical
definitions were discussed earlier in the opinion. Id. It is those definitions, which
were explicitly included in Atkins, that were clearly established by the opinion.
What makes Shoop distinguishable from this case is that it addressed an
interpretative question about the adaptive deficits prong in a way that was not
elaborated upon in Atkins, unlike the prong at issue in this case, the minimum IQ
score, which Atkins expressly addressed. The Clinical definitions expressly set forth
in the Atkins opinion did not address the “adaptive strengths” that were at issue in
both Shoop and Moore. See Atkins, 586 U.S. at 308 n.8. In contrast, Atkins
expressly addressed the upper limit of an intellectually disabled person’s IQ score.
This Court noted explicitly that “the cutoff IQ score for the intellectual function
prong” of intellectual disability is “between 7O and 75 or lower.” Id. at 809 n.5. It is
this specific language in the Atkins opinion that proscribes Idaho’s rigid 7O IQ
cutoff. The lack of discussion in Atkins of adaptive strengths and their impact on
adaptive deficits is why Atkins did not constitute “clearly established” law regarding
the issue in Moore and Shoop. But unlike with adaptive deficits, Atkins did go out
of its way to discuss subaverage functioning and define it in such a way as to make
it completely incompatible with the Idaho Supreme Court’s approach here.
Atkins’ embrace of the clinical standards was confirmed beyond any doubt by
Hall, which described “[t]he clinical definitions of intellectual disability” and in
particular the SEM as “a fundamental premise ofAtkins.” 572 U.S. at 720. The
panel paid lip service to such passages but disregarded the import of them. Pizzuto
PETITION FORWRIT OF CERTIORARI e Page 16
VI, 947 F.3d at 527, App. at 15—16. Specifically, the panel acknowledged the Court’s ;,
admonition in Hall that Atkins provided “substantial guidance on the definition of
intellectual disability,” Hall, 572 US. at 721, and that “Atkins did not give the
States unfettered discretion to define the full scope of the constitutional protection,”
id. at 719, but found those passages wanting. See Pizzuto VI, 947 F.8d at 527, App,
at 15—16. Those passages alone are compelling and strongly support Pizzuto’s
argument that the panel misconstrued this Court’s precedent. However, they are
FIT
dispositive when added to the third Hall quote, when it is displayed in full.
Unfortunately, the panel truncated its third selection from Hall in a way that
diminished this Court’s own acknowledgement ofAtkins’ controlling effect on the
measurement of a qualifying IQ score. Through the panel’s use of an ellipsis in the
pertinent quote from Hall, the panel omitted critical language regarding this
Court’s own characterization ofAtkins’ definition of IQ scores. See Pizzuto VI, 947
F.3d at 527, App. at 15 (“‘[t]he clinical definitions of intellectual disability were a
fundamental premise ofAtkins’” (quoting Hall, 572 U.S. at 720)). The actual
passage from Hall expressly acknowledges that in Atkins the Court had addressed
IQ scores particularly: “The clinical definitions of intellectual disability, which take
into account that IQ scores represent a range, not a fixed number, were a
fundamental premise ofAtkins.” Hall, 572 US. at 720. Thus, the panel missed
Atkins’ clear establishment of the clinical definitions and the softness of a 7O IQ
limit, as previously noted by Atkins’ express acknowledgment that someone with an
IQ of 75 could be intellectually disabled. See Atkins, 586 US. at 309 n.5.
PETITION FORWRIT OF CERTIORARI — Page 17
Atkins is the seminal case from this Court on intellectual disability and the
death penalty, and was so for a dozen years before Hall. The extent to which Atkins
embraced and mandated aspects of the clinical definitions is critically important to
the many intellectually disabled petitioners who were already on death row in 2002
when Atkins was announced. Atkins set a constitutional floor on improperly limited
state definitions. The question of whether and to what extent Atkins embraced the
clinical definitions, defined intellectual disability and, as pertinent here, identified
the cutoff IQ score at ’75, not ’70, is a surpassingly important question for the many
death row inmates who had to establish their disability immediately and Without
the benefit ofHall. Accordingly, this Court should grant Pizzuto’s petition for a
writ of certiorari to resolve the conflict between the panel opinion and Atkins.
B. The Panel Decision ConflictsWith Another Court ofAppealsDecision And This Court Should Resolve the Circuit Split.
The panel decision likewise conflicts with the Tenth Circuit’s opinion in
Smith, which held—in direct opposition to the panel here—«that this Court’s
decision in Atkins indeed made the clinical definitions for subaverage functioning a
constitutionally indispensable part of the test, and with them the rule that an IQ
between 7O and ’75 cannot preclude relief standing alone.
In Smith, the Tenth Circuit granted relief on an intellectual disability claim
that Smith’s execution would Violate Atkins, Smith, 985 F.3d at 1073, overturning a
state court decision from 2007 that affirmed the denial of Smith’s Atkins claim. Id.
at 1070.
PETITION FORWRIT OF CERTIORARI — Page 18
In the course of granting the claim, the Tenth Circuit concluded that the
state court “unreasonably applied Atkins.” Id. at 1076. The court acknowledged
that Atkins provided the substantive law, and, crucially, that “[t]he Supreme Court
in Atkins accepted clinical definitions for the meaning of the term [intellectually
disabled].” Id. at 1077. The Tenth Circuit further acknowledged that “Atkins left
the primary task of defining intellectual disability to the states,” but nevertheless
concluded that “Atkins clearly establishes that intellectual disability must be
assessed, at least in part, under the existing clinical definitions.” Id. In setting the :
parameters for evaluating the sub-average intellectual functioning prong, the Tenth
Circuit recognized the binding nature of “the clinical definitions of the intellectual
functioning prong at the time of Smith’s Atkins trial,” which was—dike
petitioner’s—before Hall. Id. at 1078.
Smith had several IQ scores below 70, but also a score above ’70 and within
the margin of error, namely, a 73.10 Id. at 1079. The Tenth Circuit evaluated these
scores in light of “Atkins’ statement that a score of 7 5 or lower will generally satisfy
the intellectual functioning prong of an intellectual disability diagnosis.” Id. at
1080. See also id. at 1079 (“not even one of Smith’s IQ scores falls outside the
10 One of Smith’s scores was given as a range of 69—78. See Smith, 935 F.3d at1079—1080 (addressing a score under the Raven’s Standard Progress Matrices,which did not allow for “a fixed score,” unlike the Wechsler Adult IntelligenceScale). The Smith court appears to have disregarded the Raven’s score as an
outlier, perhaps because it was given as a range, perhaps because “the WAIS ‘is the
premier instrument used throughout the world for IQ measurement,”’ id. at 1080, or
perhaps because the median point of the range would be a 74 and within the marginof error.
PETITION FORWRIT OF CERTIORARI - Page 19
intellectually disabled range ‘between 7O and 7 5 or lower,’ Atkins, 586 U.S. at 809
n.5”). Accordingly, the Tenth Circuit found that “a reasonable jury would have been
compelled to find” that Smith met the intellectual functioning prong, Smith, 985
F.8d at 1082 n.11, and therefore that the state court opinion finding otherwise was
both an unreasonable determination of the facts, id., and “an unreasonable
application ofAtkins.” Id. at 1082. In sum, the 2007 state court decision, issued
years before Hall and Moore, was “an unreasonable application ofAtkins because
such determination requires the [state court] to have disregarded the clinical
definitions Atkins mandated states adopt.” Id. at 1083.
Smith thus holds, contrary to the panel opinion, that Atkins itselfmandated
application of the clinical definitions of intellectual disability and required state
courts to find that IQ scores of ’75 or lower satisfied the intellectual functioning
prong.
Significantly, the Tenth Circuit in Smith acknowledged Shoop and § 2254’s
requirement that “Supreme Court precedent must have been ‘clearly established at
the time of the [state] adjudication.” Id. at 1071 (quoting Shoop, 189 S. Ct. at 506).
Unlike the panel here though, see supra at 18—17, that principle did not prevent the
Tenth Circuit from understanding Atkins as having raised the clinical standards,
and their margin of error in IQ scores, to a constitutional status. The panel’s
differing interpretation of Shoop and § 2254 creates yet another irreconcilable
disagreement between the two opinions and yet another reason for certiorari
review.
PETITION FORWRIT OF CERTIORARI — Page 20
If the panel opinion here remains in effect, there will be two published
opinions from two different circuits that read Atkins in radically distinct ways. An
inmate sentenced to death in the Tenth Circuit will be entitled to habeas relief,
While an identically situated prisoner in the Ninth Circuit will be executed. That is
an unacceptable state of affairs, particularly in such heavy capital jurisdictions“
with lives hanging in the balance, and the conflict should be resolved. See Sup.Ct.
R. 10(a). This Court should grant Mr. Pizzuto’s petition for a writ of certiorari to
resolve the conflict between the panel opinion and the Tenth Circuit.
C. This Case Is A Good Vehicle For Resolving the Circuit Split.
This case is the ideal vehicle to resolve the circuit split with Smith. The
question is clearly presented without factual complications, as the state court
plainly disregarded the clinical standards and the SEM’s applicability in
determining that Idaho’s statutory definition required a score of “7O or below” and
“did not require that the IQ score be within five points of 70 or below.” Pizzuto V,
202 P.3d at 651, App. at 101. As set forth above in the statement of the case, the
question has no preservation issues, as it was consistently raised in the state and
11 Oklahoma, which is in the Tenth Circuit, has carried out the third-mostexecutions of any state in the modern era of the death penalty—only one fewer thanthe second state on the list. See Death Penalty Information Center, Executions byState and Region Since 1976‘, httpszl/deathpenaltvinfo.org/executions/executions-overview/number—of-executions~bv~state~aiid~region»since-1.976. The Ninth Circuitincludes California, Arizona, and Nevada, all ofwhich are in the top-ten states for
the population of their death rows, with California in the first spot by a significantmargin. Collectively, those three states contain 35% of the inmates on death row inthe country. See Death Penalty Information Center, The Death Penalty in 201.9:
Year End Report at 2, httpsz/lfiles.deathnenailtvinfo.org/reports/vear-erid/YearlihidiReportZ011.9.pdf.
PETITION FOR WRIT OF CERTIORARI - Page 21
federal proceedings. See supra at 8—-11. Most significantly, the Ninth Circuit
addressed the issue head-on, noting that the five~point margin of error was required
by both the clinical standards and Hall, but was not compelled by the holding in
Atkins. Pizzuto VI, 947 F.8d at 526~27, App. 14—16. What Atkins held, regarding
the intellectual function prong of the clinical standards, is the precise question here,
and the panel opinion is in direct conflict with Smith on that point. Cf. Smith, 985
F.8d at 1080 (relying upon “Atkins’ statement that a score of 7 5 or lower will
generally satisfy the intellectual functioning prong of an intellectual disability
diagnosis”).12 Accordingly, this case is the perfect opportunity to take up the
question. In addition, because the second question presented reaches the only other
element of the lower court’s reasoning—as outlined below—a plenary opinion could
change the result and lead to the vacatur ofMr. Pizzuto’s death sentence, so there
are no harmless-error type problems to prevent review.
II. The State Court Made An Unreasonable Determination of Fact inConcluding that Petitioner Failed to Make a Prima Facie ShowingThat Onset ofHis Disability Occurred Before Age 18.
Another basis to grant certiorari is to review the Ninth Circuit’s finding that
the Idaho Supreme Court did not make an unreasonable determination of fact in
concluding that petitioner failed to show that his disability manifested before age
18. See Brumfield, 135 S. Ct. at 2276 (deciding case under § 2254(d)(2) despite also
12 In the event that the Court ire-lists or grants certiorari in Smith, No. 19-1106, thisCourt should hold the instant petition while that case is pending, assuming it doesnot immediately grant the petition here. As appropriate, it should then grantcertiorari, vacate and remand for reconsideration in light of that opinion.
PETITION FORWRIT OF CERTIORARI -— Page 22
granting certiorari under both § 2254(d)(1) and (d)(2)). Here, the parallels with
Brumfield are numerous, including the failure of the state court in this case t0
make reasonable determinations of fact.
As in Brumfield, Mr. Pizzuto had a single IQ score within the margin of error.
See supra at 4—5; Brumfield, 135 Si Ct. at 2277—79 (a single score of 75)}3
Similarly, both had been assessed as having a borderline intelligence. See App. at
129 (report ofDr. Michael Emery that Mr. Pizzuto fell “in the borderline range of
intellectual deficiency”); Brumfield, 185 S. Ct. at 2280 (expert found “Brumfield had
a borderline general level of intelligence”). Both suffered from seizures. Id. at 2279;
App. at 182—134 (Mr. Pizzuto had epileptic seizures resulting from brain damage
arising out of either a fall causing a fractured skull at age two and a half and/or an
accident at age fourteen).
Both Mr. Pizzuto and Mr. Brumfield had significant academic difficulties in
school, though Mr. Pizzuto would appear to have had more. In fifth grade, Mr.
Pizzuto had already been held back once, and his Standard Achievement Test score
placed him a full year behind his class and two years behind his sixth grade age.
App. at 162. In sixth grade, Mr. Pizzuto failed again and was forced to repeat sixth
grade. App. at 150. The next year, again in sixth grade in a different elementary
school, Mr. Pizzuto was placed in the “lower learning” group, and despite being two
years older than his peers, his grades reflected that he was at the bottom of that
18 In Bmmfield, this Court found the trial court’s conclusion, that a reported IQ of75 precluded a finding of subaverage intelligence, to be an unreasonabledetermination of fact under § 2254(d)(2). Brumfield, 135 S. Ct. at 2278.
PETITION FORWRIT OF CERTIORARI — Page 28
group and performed at the bottom of his class. App. at 154. He would have been
qualified for and been placed in special education had such a program been
available. App. at 154. He could not pass a Reading Equivalency Test. App. at 157.
Similarly, Mr. Brumfield was placed in special education classes in school, had a
learning disability and read at a fourth grade level. Brumfield, 135 S. Ct. at 227 9—
80.
This Court had no difficulty in concluding that Mr. Brumfield’s disability
manifested before adulthood.” Id. at 2288. This Court relied on the 75 IQ found by
his expert at sentencing, id. at 2274-175, and his intellectual shortcomings as a child
to conclude “there is little question that he also established good reason to think
that he had been [intellectually disabled] since he was a child.” Id. at 2283.
The Idaho Supreme Court sought to avoid a finding of pre-18 onset ofMr.
Pizzuto’s intellectual disability by inventing an inference that his IQ decreased due
to his epilepsy and drug use. Pizzuto V, 202 P.8d at 651—52, App. at 101—02. The
state court inferred that Mr. Pizzuto’s IQ could have decreased before he obtained
the 72 IQ score at age 29 because his “long history of drug abuse and his epilepsy
would have negatively impacted his mental functioning.” Id. at 651, App. at 101.
14 In Brumfield, the question was whether the evidence presented had met the
showing of adaptive deficits, sufficiently to make unreasonable under § 2254(d)(2)the state court’s determination of fact that it did not. Brumfield, 185 S. Ct. at2279—82. This Court found the state court determination an unreasonabledetermination of the facts. Id. at 2282. The State also suggested that Mr.Brumfield had likewise not shown a pre-18 onset of the adaptive deficits, but thatprong ofAtkins had not been addressed by the state court, and so § 2254(d)(2) didnot apply and review on that point was de nova. Id.
PETITION FORWRIT OF CERTIORARI — Page 24
H
The court relied on Dr. Merikangas’s statement that “Mr. Pizzuto has a lifelong
history of almost continuous drug abuse,” which has “caused him further
neurological dysfunction and has caused him to have substantial defects ofmind
and reason.” Id. Similarly, the state court relied on two statements from Dr.
Beaver, first, that Mr. Pizzuto’s “seizure disorder, neurocognitive limitations that
affect his impulse control and decision-making combined with the neurotoxic affects
[sic] of polysubstance abuse would have significantly impacted his abilities to make
appropriate decisions and to control his behavior in an appropriate and community
acceptable manner.” Id. at 651~52, App. at 101—02. In an affidavit drafted eight
years later, Dr. Beaver recommended that the neuropsychometric studies be
repeated, as “[o]ften, patients that have persistent seizure disorders will decline
over time in their overall mental abilities.” Id. at 652, App. at 102. From this, the
state court concluded that “Dr. Beaver felt that Pizzuto’s mental functioning could
have declined due to his seizure disorder.” Id. The supreme court further
concluded that the state district court “could have inferred that [Mr. Pizzuto’s
mental functioning] would also have declined during the eleven-year period from
Pizzuto’s eighteenth birthday to the date of his IQ testing, where Pizzuto was not
only suffering from epileptic seizures but was also abusing various drugs.” Id.
The problem with the state supreme court’s reasoning is that neither ofMr.
Pizzuto’s experts suggested that his IQ would have decreased. The state court
engaged in rank speculation without any reasonable support in connecting Dr.
Merikangas’s finding of “neurological dysfunction” that “caused substantial defects
PETITION FORWRIT OF CERTIORARI —- Page 25
ofmind and reason” to IQ. Pizzuto V, 202 P.3d at 651, App. at 101. There is no
basis in the record for that inference. Dr. Merikangas made this finding in 1988,
long before Atkins, and his primary finding was “brain damage,” not intellectual
disability. App. at 134—85. Furthermore, the sources of the brain damage were the
accidents when Mr. Pizzuto was two and fourteen, clearly in the developmental
period before age 18. App. at 134-. Indeed, while Dr. Merikangas noted the 72 IQ as
a consequence of the damaged brain, his focus was on Mr. Pizzuto’s inability to
control his impulses. App. at 134—435. In a lengthy quote on the effects of drugs,
he noted explicitly a series of eight neurological dysfunctions, all ofwhich constitute
impaired mental functioning but none ofwhich relate to IQ in any way. See App. at
185 (diminished ego control over comportment; impaired judgment; restlessness,
irritability and combativeness; paranoid thought disorders; drug cravings that may
lead to crime and assault; a state of intoxication or delirium that may lead to
combativeness and hyperactivity; feelings of bravado or omnipotence that may
obliterate one’s sense of caution; an amnesic or fugue state during Which assaults
may take place).
Likewise, Dr. Beaver conducted neuropsychometric testing in 1996 to
evaluate neurocognitive functioning and find “neurological impairment secondary to
brain injury seizure disorder or drug/alcohol problems.” App. at 140. He addressed
at length Mr. Pizzuto’s brain damage and seizures, as a consequence of head
injuries that led to impaired mental functioning, impulsive behavior, particularly
uncontrolled when combined with the neurotoxic effects of drugs. App. at 142. In
PETITION FOR WRIT OF CERTIORARI —- Page 26
2008, Dr. Beaver stated that Mr, Pizzuto likely satisfied the Idaho statute, which
included a requirement that the IQ and adaptive deficits manifest pre-l8. Pizzuto
V, 202 P.8d at 653, App. at 103. When Dr. Beaver later suggested more
psychometric testing because the mental abilities of people with seizure disorders
may decline over time, he again focused on brain damage (“organic brain disorder”)
and did not mention IQ. App. at 165—68. He again recommended the brain scans
that he had previously recommended in 1996, App. at 148, in combination with
current psychometric testing to “further elucidate his mental abilities, and the
etiology of his limitations.” App. at 168. Dr. Beaver’s request for further testing,
including imaging, could have helped to explain the cause ofMr. Pizzuto’s brain
problems, likely his serious accidents in the developmental period, preu18.
None of the affidavits relied upon by the Idaho Supreme Court mentioned IQ,
much less a decreased IQ. To infer a decreased IQ under these entirely speculative
circumstances, as the court did, Pizzuto V, 202 P.3d at 651~52, App. at lOl-—02, was
an unreasonable determination of fact. Brumfield, 135 S. Ct. at 2279—88. Mr.
Pizzuto’s burden was merely to make a prima facie case with evidence showing that
his intellectual disability manifested before age 18. Pzlzzuto V, 202 P.8d at 651, App.
at 101. He did. And the Idaho Supreme Court made an unreasonable
determination of fact when it concluded that he did not.
In finding otherwise, the court of appeals below ran afoul of this Court’s
precedent. Mr. Pizzuto argued that his “abysmal school record” was “evidence of
subaverage intellectual functioning,” Pizzuto VI, 947 F.8d at 580—81, App. at 18,
PETITION FORWRIT OF CERTIORARI - Page 2’7
but the panel characterized that evidence as “sparse and incomplete,” in dismissing
the significance of the evidence of pre-18 onset ofMr. Pizzuto’s intellectual function
evidence based on his extreme academic difficulties. Id. at 581, App. at 18. The
panel necessarily acknowledged that his school records were “some evidence of pre-
18 significantly subaverage intellectual functioning,” but asserted that did not make
unreasonable the Idaho Supreme Court’s decision that Mr. Pizzuto fell short of
showing pre-18 onset. Id.
While the panel asserted thatMr. Pizzuto had “failed to bring the evidence to
the [state] court’s attention,” and cited the state court’s assertion that he “relied
solely upon Dr. Emery’s IQ determination,” id., neither statement is true.
Admittedly, Mr. Pizzuto argued the IQ score itself, but he also supported the onset
of his disability pre-18 based on “pre-18 etiology of brain damage which may have
resulted in his retardation, and significant evidence of pre-18 adaptive skills deficits
in numerous areas of functioning.” See RER, Vol. 2 at 122 [Dkt 38-2 at 50.] The
numerous areas of adaptive skills deficits included the evidence ofMr. Pizzuto’s
longstanding and early intellectual challenges, including having been held back
twice in elementary school. See supra at 23~24. As the Idaho Supreme Court was
apprised of this evidence, it indeed chose to ignore it, contrary to the panel’s
conclusion.
And as this Court found in Brumfield, such a state court record contains
“ample evidence” that the “disability manifested before adulthood” and provides
“good reason to think that he had been [disabled] since he was a child.” Brumfield,
PETITION FORWRIT OF CERTIORARI —— Page 28
185 S. Ct. at 2283. Given Mr. Pizzuto’s showing in state court, the Idaho Supreme
Court made an unreasonable determination of fact in concluding otherwise. This
Court should grant the petition on this question as well, which would allow it to
resolve the circuit split set forth above with respect to the first question presented.
CONCLUSION
As “the death penalty is the most severe punishment” known to the law,
Roper U. Simmons, 548 US. 551, 568 (2005), and society’s evolving standards of
decency and the Eighth Amendment mandate that society protect the intellectually
disabled from execution, Atkins, 536 US. at 321, this Court should grant the
petition for writ of certiorari to ensure that Mr. Pizzuto is not executed on the basis
of a decision that conflicts with Atkins and with the precedent of another circuit.
Alternatively, this Court should grant a per curiam reversal.
Respectfully submitted this 28th day ofMay 2020.
Respectfully submitted,
/s/Deborah A. Czuba
Deborah A. Czuba"Bruce D. LivingstonJonah J. HorwitzCapital Habeas UnitFederal Defender Services of Idaho702 West Idaho Street, Suite 900Boise, Idaho 83702Telephone: 208-381-5580Facsimile: 208-881-5559
*Counsel of Record
PETITION FORWRIT OF CERTIORARI -— Page 29
APPENDIX G
Jonah J. I—Iorwitz, ID Bar No. 10494Federal Defender Services of IdahoCapital Habeas Unit702 W. Idaho, Suite 900Boise, Idaho 83702
Telephone: (208) 331-5530Facsimile: (208) 33I~5559Email: [email protected]
Attorney for Gerald Ross Pizzuto, Jr.
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT
OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF IDAHO
GERALD ROSS PIZZUTO, JR., ICase NO. CV 03-34748
”mom“ I MOTION TO ALTER OR AMENDI JUDGMENT PURSUANT TO
vI IDAHO RULE OF CIVIL
IPROCEDURE 60(b)(6)
STATE OF IDAHO, IORAL ARGUMENT REQUESTED
Respondent. )
I(CAPITAL CASE)
Because the Ninth Circuit has held that the Idaho judiciary’s resolution of the claim at bar
is inconsistent with binding precedent from the United States Supreme Court, and because of
prior counsel’s negligence, Petitioner Gerald Ross Pizzuto, Jr,, respectfully moves to alter or
amend the judgment entered against him. Specifically, Mr. Pizzuto requests that the Court
reopen the case, vacate the order denying relief on December 16, 2005, allow him an opportunity
to request leave to amend his petition, and set an evidentiary hearing to take testimony on
whetherhe is constitutionally immune from execution under the Eighth Amendment by virtue of
his intellectual disability. The motion is supported by a contemporaneously filed memorandum.
MOTION TO ALTER OR AMEND JUDGMENT - l
DATED this 25th day of September 2019.
/s/ Jonah J. HorwitzJonah J. HorwitzAttorney for Gerald Ross Pizzuto, Jr.
CERTIFICATE OF SERVICE
I hereby certify that on the 25th day of September 2019, I served the foregoing document
on all interested parties, who are set forth below, via iCourt tile and serve:
L. LaMont AndersonDeputy Attorney GeneralChief, Capital Litigation UnitStatehouse Mail, Room 10
PO Box 83720Boise, ID 83720~0010
/s/ L. Hollis RuggieriL. Hollis Ruggieri
MOTION TO ALTER OR AMEND JUDGMENT ~ 2
APPENDIX H
1~—
lnmm 6,0:menlsmgsbcounr
‘
:Ex'l ..‘_ 1.1.»: . (:2 : . INN“ .
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THESTATE OF IDAHO, IN AND FOR THE COUNTY OF IDAHO
(Zil.?il{i\l..D ROSS PIZZUTO. .lR.. CASE NO. CV 0344748
l’clitioner. MEMORANDUM OPINION ANDORDER ON MOTION TO
v. ALTER 0R AMENDJU [)6MENT PU ,RS’UANT T0
S'I‘A'l‘l": OF IDAHO. T.R.C.P. 6000(6)
Respondent.
‘..
,.,.
This matter came on before the Court on the Petitioner‘s Motion to Alter or
Amend Judgment Pursuant to l.R.(.‘,,P. 6(l(‘l3)l6).1 The Petitioner was represemed by
Jonah Horwitz. of the Federal Defender Services of Idaho. The State was represented by
lnMonl Anderson. ol‘tllc Idaho Attorney General’s Office. The matter was before the
(I‘oun on December 30. 20“). The. ("mat being fully advised in the mailer. hereby
mfnders its decision.
PROCEDURAL BACKGROUND
Pizzum was convicted 0F two counts of firsvdcgrcc murder and one count of
rnhbcry and grand theft and sentenced 1.0 death in 1986. See State v. Fizz-mo. 1 l9 Idaho
742. 810 P.2d 680 (1901). '1"le udgmcnl of conviction was affirmed by the Idaho
' The Slate also presenlrcd a Motion to ‘l'akc Judicial Notice. which was not npposcd by me l’eliliumcr. Thu
mmlun wus grunlcd on the record.
A'llin'lORANDUn-l OPINION AND ORDER ON 1
M(‘.’>‘l‘l()l\' 'l‘O ALTER 0R AMEND .ll}l')G1Vll:.‘,N‘l"
l’l IRSUANT TO I.R.C.l’. 60(b)(6)
'3’WM A"
,,.
Supreme Court. 1d, There has been extensive litigation over Pizzuto’s convictions and
sentence. Pizzuto has; filed a total of five petitions for post~conviction relief, all oi” which
were dismissed.2
‘l‘hc ldaho Supreme. Court affirmed the district court’s summary dismissal of the
Fifth petition for pt)$l‘~COlWlCil0ll relief in Pizzmo v. State, l46 Idaho 720, 302 P.3d 642
(2005).3 Pizzuto’s fifth petition raised the issue oi‘whcthcr Pizzuto‘s death sentence was:
unconstitutional in light oi‘Arkins u it"irgt‘nia. 536 US. 304, J22 S.C‘.t. 2242, iii} l..l-3d.2d
335 (2002). wherein the United States Supreme Court held that the execution of‘a
murderer who was mentally retarded4 at the time of the killing constituted cruel and
unusual punishment in violation ol’ the Eighth Amendment. The ldaho Supreme Court
affirmed the District Court‘s summary dismissal of Pizzuto’s fifth pctition in Pizza/o v.
State. M6 ldaho 720. 202 P.3d 642 (2005).
There is also significant federal litigation resulting from Pizzuto‘s conviction and
sentence.5 Most recently. theNinth Circuit Court of Appeals affirmed the District of
idaho Court‘s order denying hahcas relief. See Pizznto 8’. Blades, 933 F.3d 1 l66 (9th Cir.
7 Pizzuto’s lirst post-conviction ciaim was reviewed in conjunction with the appeal oi‘hisjudgmont of
conviction in Sin/c v. I’izzulo. l l9 ldztho 742. 810 P.2d 680 (l99l). Pizzuto’s second petition for post-
convicrion relici’was dismissed by the District Court; the Idaho Supreme Court affirmed this decision in
Pissum it Stow. l27 ldaho 469. 903 P.2d 58 (1995). Pizzuto’s third petition for post-conviction relief was
summarily dismissed by the District Court; the ldaho Supreme Court also affirmed this decision. .‘i‘ce
Pixmo v, Stow. 134 ldnho 793‘ 10 P.3d 742 (2000). Pizzuto‘sfourtlt petition For post‘conviction rclicl‘
addressed issues arising from the United Siatos Supreme Conn case Ring v. Arizona, 536 0.5. 584 0.002).
This posit-conviction appeal was consolidated with several others. In Rlwodtex et ul. v. Slum. 140 lduho
list). 233 P.3d 61 (2010). the ldoho Supreme Court affirmed the post-conviction court. concluding that Ring
is not rctroactive under ldalto law." 'l'hc procedural history and sutnnmry ol'dctails From each ol' Pimtto’s post-conviction cases are set forth
at 146 Idaho :tt72?«34. 202 P.3d at 645-646.' At the time silk/us was decided. “mental retardation" was the common phrase used to describe intcllectual
disability, This Court will use: the phrase "intellectual disability“ for purposes ofthis ordcr. unless
specifically quoting older material.5 Pizzuto‘s first habcus petition is located “all l‘izztrto t’. Arrive, 280 F.3d 949 (9th Cir. 2002). diligent
tuna/triad and ,ntpormrdcd in part by 385 F.3d l247 (9th Cir. 2004).
h'llfsViORANDUM OPINION AND ORDER ON 2MOTlON TO AL‘I'ER OR AMEND JUDGMENTPURSUANT TO l.R.C.l’. 60(h)(6)
.. i . . .. V . . . . .
2019).‘ lhe Ninth (,trcmt rev1cw of Pizzuto’s case was governed by the Antitcrrortsm
and Effective Death Penalty Actot’1996 (AEDPA). Habeas relief7 can be granted only it‘
the state court proceeding adiudicating the merits “resulted in a decision that was
contrary to. or involved an unreasonable application of. clearly established Federal law,
" Pizzuto's federal cases are intertwined with the United States Supreme Court‘s rulings in Atkins and its
progeny. including Hall v. Florida. 572 US. 701 (2014). in Pizstrln r. Binder. 2012 WL. 73336 (D. ldnlto
3012). Judge \tt’inmill determined that Pizzuto was not entitled to hnbens rclicl‘. This decision was
reviewed and affirmed in Pizznlo r. Blades. 729 F.3d 1211 (9th Cir. 2013); however, as a result of Hall r.
Florida. the case was vacated and remanded. See Pizrtzro v, Blades. 758 F.3d 1 178 (9th Cir. 3014’). JudgeWinmill again considered the matter and determined that Hall v. Florida did not alter the previous decision
denying. the successive petition. This decision was ul‘t‘tnncd at Pizzmo v. Blur/es. 933 1“.3d l 166 19'" Cir.
3019).7The standard oi" review of the habeas action is set forth as follows:
“[A] decision by a state court is “contrary to’ [the Supreme Court‘s] cicnrlyestablished law il‘it "applics a rule that contradicts the governing low set forth in [the
Supreme Court‘s] cascs‘ or if it ‘confronts a set of facts that are materially
indistinguishnhie from a decision oi" thle Supreme} Court and nevertheless arrives at a
result different trout [the Supreme Court's] precedent.‘“ Price v. Vincent. 538 1.1.5. ($34.
640. 133 S.Ct. 1848. 155. L.t3d.2d 877 (2003) (quoting il’ll/imnr 1'. Taylor. 539 1.3.3. 302.
405416. 120 3.0. 1405. 146 1.,.1?.d.2d 389 (2000)).“1A] state-court decision involves an
unreasonable application of this Supreme] Court’s precedent ilthc state court identities
the correct governing legal rule from title Supreme] Court‘s cases but unreasonably
applies it to the Facts ol‘thc particular state prisoner‘s case." Williams. 529 US. tit-107.120 S.Ct. 1495. To satisfy this requirement. the record “must show that the suite court's
ruling was so lacking injustit'ication that there was an error well understood and
comprehended in existing law beyond any possibility For l‘airtnindod disagreement."
l-lw-Nngnur \r. Richter. 562 US 86. 103. 131 SC! 770. 178 t..t'id.2d 624 (2011).’1’hc
question "is not whether a federal court believes the state court‘s determination was
incorrect but whether that determination was unreasonable a substantially higher
threshold.“ St‘lil'il'o r. Lumlrigun. 550 11.13.465.473. 127 S.Ct. 1933. 167 1-.Ed.2d 836
(2007) (citing l-i’l/liams. 529 US. 211410. 120 S.Ct. 1495). Turning to § 2254000). “we
may only hold that a stale court‘s decision was based on mt unreasonable determination of
the facts it“wc [are] convinced that an appellate panel. applying the normal standards ot~
appellate review, could not reasonably conclude that the finding is supported by the
record.‘ " ttlurmy v. Sol-trim. 745 F.3d 084, 999 (9th Cir. 2014) (alteration in original)
(quoting TlIy/lfll‘ v. Maddox. 360 F.3d 9912. 1000 (9th C in 2004). abrogated on other
grow/7dr or noted in :llm'rtn’, 745 F23d at 1000).We apply our review under § 2254(d) to the last reasoned state court decision.
Sue 1’13! v, Nil/memuker. 501 US. 797. 803~t~041 1 11 S.Ct. 2590. 1 15 1...1?.d.2d 700 (1991):
llr‘bblc‘r l'. Bt’l'l€‘(/i!!ll. 693 F.3d 1 140. 1 146(901 Cir. 2012) Here. we review the 1dnho
Supreme Court‘s 2008 decision. See Pi::uto l. 202 P.3d 642. Because that court denied
Pizzuto's Atkins claim on the merits. our review under § 2254(d) is limited to the record
that was before the state court. See CHI/(m ll. Pinhole/tau 563 US. 170. 181. 131 Stir.
1388. 179 1....tid.2d 557 (201 1). We may grant habeas rcliefonly it‘ we conclude both that
§ 2254M) is satisfied and. on de novo review. that the petitioner is in custody in violation
of the Constitution of the United States. See Front: v. Huron. 533 P.3d 724. 7315-4—37 (9th
Cir, 2008) (en bane). _
l-‘izzum v, [Wilt/(’5. U33 1-‘.3d 1 166. 1 178—09 (9th Cir. 2019)
MliLiv‘lORANDUM ('I)l’1NlC)N AND ORDER ON 3
MOTitflN TC) ALTER OR AMEND JUDGMENTPURSUANT TC) i.R.C.P. 60(1))(6)
-44
—«w
as»?
..~
as determined by the Supreme Court of'the United States,’ 28 U.S.C., § 2254(d)(l ). or
‘wos based on an unreasonable determination ofthe facts in light ot’thc evidence..
presented in the State court proceeding? id. § 2254(d')(2).” Pizzuta v, .Blarleix 933 F.3d at
l l78. The. Ninth Circuit Court of Appeals concluded the following:
Because § 2254(d) is not satisfied, we hold that the district court properlydenied hitheas relief, We need not address l’izzuto's remaining appellate
arguments or review his ill/tins claim de novo. Accordingly. we do not
address whether Pizzuto is intellectually disabled or whether his execution
would violate the Eighth Amendment.Our decision, however. does not preclude the ldaho courts from
reconsidering those questions in light of intervening events. Although the
ldaho courts rejected .Pizzuto's Atkins claim in 2008, they did so without
thc benefit oi‘an cvidentiary hearing. without the benefit oi“ the Supreme
Court's decisions in Halli Bruin/im’d and :la'aore I, and without the benefit
oithc most recent iterations of the AAIDD and American PsychiatricAssociation clinical standards. Since 2008‘ the United States Supreme
Court has made clear that “it. is unconstitutional to foreclose ‘all further
exploration ofintellectual disability‘ simply because a capital defendant is
deemed to have an lQ above 70.“ Bi-iunfield. lBS S. Ct. at 2278 (quoting
Hall, 572 US. at 704, l34 S.Ct. 1986), and the professional Clinical
standards now advise that "best practices require recognition ot‘a potential
Flynn Effect when older editions of an intelligence test (with
corresponding oldor norms) are used in the assessment or interpretation of
on it) scorer" AAIDD—ll a137tTltc ldaho courts have not yet addressed
whether. under these standards, Pizzuto‘s execution would violate the
Eighth Amendment.
Pissztlo l“. Blodctsx 933 F.3d at 1 Hill
Pizzuto is currently before this Court seeking to reopen the tiith petition for post-
convicrion rclict‘ pursuant to l.R.C.P. 60th)(6). The motion to reopen the filth petition is
based upon Pizzuto’s argument that the state court should consider his intellectual
disability claim under the correct, contemporary clinical standards and law.
POST-CONVICTION RELIEF STANDARD
Under the Uniform Post-Conviction Procedure Act, a person sentenced for u
crime may seek relicl‘ upon making one of the following claims:
lvllrilviORANDUM OPINION AND ORDER ON 4
MO‘l'lON TC) AL'l‘lElR OR AMEND JUDGMEN‘I‘PURSUAN’l' TO l.R,C.i’. 60(b)(6)
1"”:“7‘1'
m.
t i) "that the conviction or the sentence was in violation oi‘the constitution
ot" the United States or the constitution or laws of this state;
(2) that the court was without jurisdiction to impose sentence:
(3) That the sentence exceeds the maximum authorized by law;
(4) That thorn exists evidence oi‘tnaterial facts, not previously presentedanti heard. that requires vacation ot‘the conviction or sentence in the
interest oi‘justice;(5) That his sentence has expired. his probation. or conditional roleaxc was
unlztwtiilly revoked by the court in which he was convicted. or that he is
otherwise unlawfully held in custody or other restraint;
(6) Suhicct to the provisions ofscction t9'4902tb) through (in ldahn
Coda that the petitioner is innocent of the ol‘ibnse: or
(7) That the conviction or sentence is otherwise subject to collateral attack
upon any ground or alleged error heretofore available under any common
law. statutory or other writt motion petition. proceeding. or remedy.
LC. § 19-4901ttt). A petition for post conviction rclicl‘finay he tiled at any time within
one (liycar from the expiration ot'the time for appeal or l‘rom the determination oi‘art
appeal or From the determination ol‘n proceeding following an appeal. “incite-var is
later.“ LC. \3 19~4‘)()2t'a').
Petitions for postconviction rclici‘nrc it special proceeding distinct from the
criminal nction that led to the petitioner‘s conviction. Sancho: v. State, 127 ldztho 709.
7i i. 905 P.2d 642. (1'44 (Ct. ApplWS}. “An application for pom-conviction tcliet~
initiates a proceeding which is civil in nature.“ Ferriterrnoker it. State, 128 Idaho 285.
287, 9l2 PM 653‘ 655. (Ct. App,l99$), i—lowevcn unlike an ordinary civil action that
requires; only it short and plain statement ot'the claim, an application for postomviction
rclict"'rnnst he wrilicd with respect to facts within the personal knoiirledgc ot‘thc
applicant. and nt'iidavitsi records or other evidence supporting its allegations must he
attached, or the application must state why such supporting evidence is not included with
the petition. l.C‘.§ [949033 fill
MEMORANDUM OPINION AND ORDER ON 5
MOTlON TO ALTER (DR, AMEND .il)l'>GMi3N'l'
PURSUANT TO LKCJTK 60t'b)(6)
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rule. was not intended to allow it court to reconsider tho legal basis for its original
decision.“ Filii’f Bank A” ”fix (if/(innit ta Parker Bl’t).l’.. 1 l2 ldaho 30. 3% 730 P.2 l 950.
952 0986).
“l’AjllthOttgh the court is vested with broad discretion in determiningwhether to grant or deny ll Rule 60th) [ (6') .i motion its discretion is
limited and may be granted only on a Showing ol"t1niqtte and compelling
circuntstnncos'justifying t‘ttliel'," Miller t‘. Halter. 129 ldaho 345. 349, 924
P.2d 607. 6i l (woo) (quoting 12: re lit/am offing/to: l17 ldztho 1091‘
l093. 793 P.2d 1263. l265 l‘Cl‘t.t\np.l‘)9tl)'). ”The appellate courts ol’thisstate have infrequently granted relief under Rule (i0tb)t'6l." Berg. 147
ldttho at 578‘ El? P.3d at 1008.
Dixon in State. l5? idnlto 582. 587. 338 P.3d 561. 566 (Ct. App. 20M). “A motion undor
Rule 60(h) must be made within tt reasonable time"‘
l R C P With 1).
l. The motion to reopen the fifth petition is untimely.
The threshold question is whether the motion to reopen the lifth petitioner made
within a reasonable time.8 Pizzuto contends that the motion was filed within a reasonable
time hosedupon
the Ninth Circuit‘s; dicta in Pisztrlo it Blades, 933 FM l 166 t9th (Sin
2019) stating that ldnlto courts have not yet addressed whether Pizzuto‘s execution would
violate the Eighth Amendment tinder Hail. Brimzfielu’ and Mooru 1. and the most recent
iterations ol‘titc («NOD ttnd American Psychiatric Association clinical standard. The
3 ll‘ Pimito had tiled a sixth successive post-conviction petition then LC. § l9-27 19(5) would have limited
Pimno to bringing the successive petition within tbttytwo days after the claim was known or reasonably
should have been known. [(1, ,Sdb‘II/il/21’iESJlli) in State, 146 ldaho 720. 727, 202 l",3tl 642. (349 (2008').
After considering these argumctttn‘ we hold that it rcnxonnble time for filing a successive
petition for post-conviction relief is forty-two days alter the petitioner knew or
reasonably should have known of‘thc claim. unless the petitioner shows that there were
extraordinary circumstances that prevented him or her from tiling the claim within that
time period. in that uvcnt‘ it still must he filed within a reasonable time alter the cloitn
was“ known or ktto‘wablc.
Pizza/o v Stare, Ho Idaho in 7‘17. 203 P.3d at (>49, Had this cttxc been tiled as a sixth StiCCL‘SSiVG
petition ill this time. the petition would have been untimely tiled. Pizzuto‘s claims should have
been reasonably known following the issuance of [Ir/ll r. Florida. There are no oxtrttordintn’y
circumstances that prevented Pizzuto ii‘om tiling a successive claim within 42 days of the issuance
01‘ Hull,
MlihlllDRANDUlvi Ol-‘lNlON AND ORDliil ON 7
MOTION TO ALTER OR AM END JUDGMENTPlll‘lSl IANT T0 'l.R.Ctl-‘. oOt‘bilél
State argues that with the issuance ofHall v. Florida 572 US 701 (2014) Pizzuto know
or reasonably should have known of his claims with respect to his asscnion that he is
intellectually disabled. "5"
While this is not a successive petition. based upon the record of this case. the
Petitioner‘s motion to reopen the filth petition was not made within a reasonable time.
The parties do not dispute that the ldaho Supreme Coon considered Atkins V. l‘i‘rginiu.
536 1.1.3. 304, 122 S.Ct‘. 2242, 153 1..,12d.2d (20021213 well asthc 1.0 § 19~2515A(1)
when addressing Pizzuto‘s l1 i‘th petition for postconviction rclicl’in 2008. Since that
time. the parties agree that the analysis applied in Alkim has evolved. The progeny of
Atkins includes Hall v. Florida, 572 US 701. 134 S.C§t. 1986‘ 188 1&3de
(‘2014Xdccided on May 27, 2014); Bruin/laid n ("oi/1, 135 S.Ct. 2269, 192 L..Ed.3d 356
(2015)(ducidcd June 18‘ 2015), and ill/looma v. Toms {Moore 1). 137 S.Ct. 1039, 197
L.l£d.2d £116 (2017ltdccidcti Mat‘01128,2017).
Having reviewed the federal as well as state record with respect to Pizzttto‘s
intellectual disability claims, it is clear that Pizzuto was aware of? the developments from
Halh Brunt/Rem, and Moore 1, as well its the updates to the AAIDD and the American
Psychiatric Association clinical standards well before. the Ninth Circuit issued Pizzzrlo v.
Blades. 933 F.3d 1 166 (2019). issues arising from Hall and the AAl’DD and Al’A
clinical standards were addressed and developed by Pizzuto‘s counsel when Judge
Winmill considered Pizza/o v. Blades. 2016 \VL 6963030 (.2016). Pizzuto’s decision to
proceed through the federal courts and delay on. necking, redress through the Idaho state
courts is not a reasonable basis For waiting five years to move to reopen the fifth petition
for postmonviction rclicl‘. While the Ninth Circuit noted that the ldoho Supreme last
Miith.)Rr\'NDUM OPINlON AND ORDER ON 8
MO'l‘lON TO ALTER QR AMEND JUDGMENTPURSUANT TO l.R.C.P. 60(11'X6)
il
l‘
considered this issue in 2008. this does not mean that Pizzuto was unaware ot‘his claims
until the Ninth Circuit laid them out. Clearly. l’izzuto was uwnre of the devclopmcnm
resulting from Atkins, and strategically he decided to pursue remedy through the Federal
system. This Court is not persuaded that this decision ol‘strtttcgy equatcs to
toasonuhlcncus which would allow Pizzuto to delay in tiling either it successive petition
lot postvcnnviction rciioi" or a motion to reopen the fifth petition pursuant to LRACZP.
tidt‘hllot. “therefore. Pizzuto’s motion to reopen the fifth petition. filed live years after
the issuance of Hull t-z Florida, is untimely.
2. There has not been a showing ol'tmiquo and compelling circumstances
justifying rclict‘in this case.
in the alternative, Pizzuto has not established unique and compelling
circutnstnncos justifying relief pursuant to I.R.C.P. (50(htto). There is limited case law
discussing when unique and compelling circumstances are present with respect to post~
conviction cases. Closes dealing with this issue have focused on whether them was an
absence ol’meaningful representation during the postmonviction proceeding. This issue
was first considered in State v, Eb‘li 148 idaho 731‘ 228 P.3d 998 (Both).
the Supreme Court of Idnito remanded 1-Star to the district court for a
dctcrtninntion of whether Eb)! had established unique and compelling circumstances for
putposcs o‘i' l.R.(’.‘tP. 600)")(6) whore he had received little to no representation in pursuing
his post~conviction petition
titty argues that being prevented a meaningful opportunity to present his
Claim through the inaction ofhis statomrovided attorney would ht: a donut!
of his due proccss rights and would constitute grounds for reltct irotn
judgment based on LR.C‘.t’l 60mm) We have recognized that “illitero ts
no constitutional right to an attorney in state postwonviction proucudtngs,
("t'tttocquotttltu at petitioner cannot claim constitutionally tltCii‘CCttVC
ahsistttncc of counsel in such proceedings.“ Lot! v. State. 122 ldztho Nor
\ISEMORANDUM OPNION AND ORDER ON 0
MOTlQN 'i'O ALTER OR AMEND ll,tl')(3lvlF.NT
PURSUANT TO l.R.Cvl’. {tillitllol
«war—a:
3*
199. 83.2 P.2d 1131. 1134(1992) (quoting Coleman 1*. Tlttmtpt'nn. 501
1.1.53. 722. 752. 111 S.C‘t. 2546, 2566. 115 l..,13d.2d 640, 671 (19011).We recognize and reiterate today that there is no right to effective
assistance 01’ counsel in post-conviction cases. We likewise recognize that
“this Court has infrequently found reason to grant reliel‘undct‘ 11R.C.P.
00(1))(6).“ lie/gr. Kendall, 1471(10110 571‘ 576 n. 7, 2121’.3d 1001‘ 1006
n. 7 (2009), lloweveh we are also cognizant that the Uniform Postw
Conviction Procedure Act is “the exclusive means For challenging the
validity ot‘zt conviction or sentence“ other than by direct appeal, lilmadar
it Sta/e. 148 Idaho 215. 217, 220 P.3d 571. 573 (300.9) (Quoting Hoyt t:Slum, 1331dnho516,510. 975 P.2d 1181. 1184 t'(fi?t.App,1999)). Given the
unique status ot’u mat-conviction proceeding“ and given the completeabsence 0 t.‘ meaningful representation in the only available proceeding For
1:213): to adrnnco constitutional challenges to his convicu‘on and SClllfinCCt
we conclude. that this case may present the “unique and comtztelling
circumstances“ in which 1.11111). (itltbito) relief may well be warranted.
Etna 148 ldaho at 737. 228 Find at 1004.
With respect to the issue of whether l’inzuto has been prevented a meaningful
opportunity to present his claim the facts of the, case before this Court are substantially
different from those 0 1" lz‘by. In Elna the Supreme Court found a complete absence of
meaningful representation available to Ehy. Since Eb)". the ldnho Court oFAppenln has
considered at least three other cases whore petitioners have been denied relief pursuant to
l.R.C.l’.61‘1tb)(6). 1n Dixon 1’. State. 157 ldaho 582. 3381).,1056l (Ct. App. 201% the
Court found lz'by distinguishable.
Dixon relies on 15/)1’1‘, Stain. 148 Idaho 731. 228 P.3d 908 (2010). in that
case. the ldnho Supreme Court concluded that “lgiiven the unique status
of a post—conviction proceeding” and given the complete absence ol’
meaningful representation in the only available proceeding for tiny to
advance constitutional challenges to his conviction and sentencet we
conclude that this case may present the ‘ttniquc and compelling
circumstances“ in which 1,R.CLP. (50min) reliet‘mny wall be warranted.“
Id. £117371228 ‘1".3d at 1004. l-lowover, as the State points out. in that case
the petitioner was denied the ability to present his poshconviction claim
due to the lack ol‘any representation from multiple attorneys over sovernl
yearn. Unlike than 05139. Dixon’s post—conviction attorney presented his
claim. and represented hint at an evidentiary hearing; While there may
have been 21 Fatal evidentinry gap at tho po3t~conviction trial. Ruin otlthtlo)
MEMORANDUM (JPlNlON AND ORDER ON 10
h‘lO'l'lON '11:) ALTER OR AMEND JUIDGh‘lENT
PURSUANT TO 1.124.117. 60(1))(6)
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convrctton counsel‘s pcrlbrmancc does not constitute unique and contpcllittu
circumstanccn.
A posthcmtviction pctitionct‘ is not entitled to the effective assistance oi"
post-convictimt counsel, and thus, "petitioner cannot claim
constitutionally ineffective assistance ot‘cottnsel in such proceedings."
Mum/tr v. State, 156 ldaho 389. 394, 327 P.3d 365. 370 (2014) (quoting('olcnmn t‘. 7"lmmpt‘tm. Sill l,,l.S 722, 752, i ll S.Ct. 2546. 2366. i iil,.i§d.2d 640. 670~7l (199) i). We do not read [i‘byto open the door to
Challenge the ct’t‘cctivencss ot‘pnst-conviction counsel by virtue ol‘zt Rule
60th) motion. in Elna the case was dixtnisucnl for inactivity. pursuant to
l.R.(.'.‘.P. 4 l (c). utter over tour years and several attorneys who did nothing
but attempt to forestall such dismissal. 1511):. 148 ldnho at 733. 228 P.3d ut
lOOt). Only after the petition was dismissed did yet another lawyer make
any attempt to advance a claim. Id. at 733~34. 228 P.3d at i000~0l. Our
Supreme Court's reference to “the complete, absence ot‘rueuningful
representation” reflected these “unique and compelling circumstances.“ Id.
at 737. 228 P.3d at too-t."
Unlike the petitioner in My. Devon did not cxpcricncc a “complete
absence of meaningful representation.“ Ehy, l48 ldttho at 737. 228 P.3d at
lt‘lm. l")ct~'an's dissatisfaction with his pushcnnviction counsel's
perihrmancc dues not constitute. the unique and compelling circumstances
required before a court may grant rclici‘undcr l.R,C.t’. 60th).
M. at 523—34. 3.99 P.3d at 850~5l.
Pizzuto‘s "use is also distinguishable from li‘by. Pizzttto has tolled into question
counsel’s strategy on how the filth petition for post~conviction relief was handled,
Pizzuto claims that counsel Viz-XS negligent for failing to adequately develop the litctual
record with respect to his intellectual disability. The: record is clear, however, that
l-‘i'mtto was not prevented a meaningful opportunity to present his claim due to the lack
oi" representation. When the fifth petition was oonsidcrcd, counsel and the court did not
have the guidance ol‘ 1'MN, Brian/fem. and Moo/‘2 /. its well as the updates to the AAIDD
and the American Psychiatric Association clinical standards. This Court curt tilSO look in
hindsight and question why countscl did not develop the. record regarding the issue ol~
intellectual disability. but the record cstablishes Pizzuto was reprcscntcd; he did not
MEMORANDUM (DPlNION AND ORDER ON [2MOTION TO ALTER OR AMEND lUDOMEN’l‘
PURSUAN'l‘ TD l.R.C.P, (tilthh)
n
y».
experience a cmuplctc absence ot’mcnningl’ul representation regarding post~convlction
relicl‘in any ol‘thc live petitions that have hccn considered on his behalf.
Ont: can review I’l'zzuto v. Stu/c, 146 lclaho 7211‘ 202 P.3d 642 (20(l5‘1nnt‘l sec that
the 1mm Stu’nriunding Pizzuto's fifth petition 101' postwantiction rclicf‘am. well
distinguishable from the luck 01‘ representation that occurred in [flux Pizzutn‘S case is
akin tn Dixon. Him and Dawn. For these reasons, Pizzuto‘s argument that his CélS'C
conntitutes unique and compelling circumstances based upon his rcprescntatinn tails,
While it is clear that the level ol‘t‘cpmsmttutlon in Pizzuto‘s case does not
constitute. unique and compelling circumstances requiring relief untlcrl R (f‘ 1’ auburn.
this leaves the question ot’thcthcr thctc are other unique and compelling circumstances
which may create it basis to reopen the lifih petition for post~conviction relief. The Ninth
Circuit opiniuu in l’t‘zstt/o 1’. Blades, 933 F.1d 1 166 (2019) does give this Court pause.
This is a capital case, an evidentim'y hearing has not been held before a state court to
determine whether Pizzutc’s execution would violate the Eighth Amendment. The Ninth
Circuit. was critical of the Idaho Supreme Court‘s review of Pizxuto’s lifih petition for
pnstvccnvictiun relief based upon the recent developments ufAtkim and its progeny.
This Cfnnrt is mindful that the Uniform Post—Conviction li’i‘occclurc Act is “the
exclusive means I'm challenging the validity nl‘a conviction or sentence" other than by
direct ztppeal.° Illinadcs v. State, 148 lclaho 215.217.2211 P.3d 571. 573 (2009).
4’Pizzutn has reserved the right to ask the Idaho Supreme Cnun to recall its renilt‘titur in cnsc number
321379. Squtu/a V. 89(11):, 115 ltlaho 208321.7661’l2t1678‘691 t1988)(“ll'there is to he titl)’
prnpurtlnnnlity in death penalty sentencing. hnwcvcr‘ it is onlyjust that the Conn now pause to reconsider
Beztm‘s (tenth scutcncc. And it can do m In State ‘.._ Ramirez 34 ldahu 623. 203 l’. 3?? (192111 the Cum
recalled its rcmittitttr to further consider its eztrllcrjuclgmcm which had affirmed in conviction ul‘thst degree
murder and punishincur/“ivy lily t/wjmp' at death.” Ill, t‘illngSlutt' v. Ramirez, 33 Idaho 803. 199 Pt 3‘36
(1931)). Here. whole the Ninth Circuit reviewed and culled into question the Supreme Court nt‘ Idaho‘s
Opinion in l’izmm v. Sta/v. 1:16 Idaho 720. 202 P.3d 642 (EOOSL a recall of the tumittitur may he the
appropriate avenue nt'rcvicw in this case.
Mil-IMOILhNDllh/l (‘)l’lN1C)N AND ()RDlfiR ON 13
h'liifll'lCW TO AlQl‘l-IR OR AMliND .lUl'JClMENT
PURSUANT TO l,R.C.P. (\Othlth')
t.it
However. "appellate. courts of‘tltis state have infrequently granted reliei'unclor Rule
otlthlio)." Donn \‘. .S‘mre, l57 idnho 582, 587. 338 P.3d 56L 566 (Ct. App, 20M}. This,
Court does not believe the record in this case rises to the level of unique and compelling
circumstances no contemplated by l.RtC.l”. 60(h')(o"). Front reviewing the record. it
appears this issue was brought under this role because a sixth successive petition would
not have been timely in this matter, it is not appropriate to allow a catchall provision to
circumvent the parameters oi‘the UPCPA. While the. Court does not decide this issue
lightly. considering the seriousness oi‘tho matter and also the staterooms ol‘ the Ninth
Circuit Court of Appeals, the record as a whole does not support reopening, the fifth
petition for postwonviction reliei‘pursuant to the catohttll provision of i.R.C.P. 60(h‘).
Thereiorc the Petitioner’s motion is denied.”
to While l’izzttto has not had an evidetttittry hearing before a state court. the record in this matter alto
includes the federal ltnbctts review. Judge Winntill found that Pizzuto foiled to prove his 10 was 70 or
below. and also that his it) was .75 or below before he turned 18. Judge Winmill‘s opinion Stt‘tliss:
i’izzuto oaks to reopen the evidentiary hearing and present further evidence ot‘ intellectual
disability. (Dkt. 268 at 44. ECI‘ p. 50.) l-lowcvcr. i’izzuto has not conVittcctl the Court
that the previous cvirlotttiztry hearing was insui'l‘toicnt in any way. Petitioner had on
adequate opportunity and a strong incentive to bring l‘orwnrd all his oxidant-c at the
evidentiary hearing. Not only has l’izznto failed to prove that his IQ was 70 or below. but
having reviewed all the evidence once again on remand the Court finds that Pizzttto has
niso foilrd to prove that his to was 7'5 or below before he turned eighteen. (See Dltt.
22%) Thus. nothing in Hull renders suspect tiny ol'tht- Court‘s previous findings anti
conclusions» on dc novo review.
[7321110 r. Blades. No. 1:05-C‘Vv005lG—BLW. 20in “143963030. at " i l ([3, Malta Nov. 28. 2016). 3111314
033 17.3d l i66 (9th Cir. 20W). lithe appellate court rcntzutds this issue for purposes oi'on CV‘iLlcillliil’}‘
hearing. this Court would consider the issue on the evidence presented. but for purposes nl‘tho motion
below this Count the issue ot’tvhotltcr Pizzuto is intellectually disabled as defined by LC. § “$35 I M. is
qocmionztble. ‘i'hcroloro, this Court lint]; tltttt it is reasonable and appropriate for purposex ofjtn'licinl
ecmton'ty to deny the motion and allow the appellate courts to considor the issue and determino whethor the
matter should he remanded for an cvitlcntiary hearing.
M l‘ih'lORANDUh-i Ol’lNlON AND ORDER ON 14
MUl‘lON TO Al, l'lrlli OR AMEND JUDGMENTPURSUANT TC) LRILXP. 6f.)(b)(ti)
ORDER
The Peiitioner‘s Motion to Alter or Amend Judgment Pursuant to LR.C.‘.P.
60(b)[6) is DENIED,A. {M
DATED This4:: day oriaimary 2020.
W.......m, //,,...\xi!“
. v,“
;\ :J I:§H{m LAMWWMMM
i: JAY P.§7\SKI.LL\ District Judge"
CER’i‘IF-‘IC.~’\'f‘E Of? MAIHNG M 2I hereby certify that a true copy of the foregoing MEMORANDle OPINION ANDORDER ON MOTION TO MIXER OR. AMEND JUDGMENT PURSUANT TO[.RL‘J’. 60(b)(6) was delivered via electronic com filing by the undersigned at
Lowiston, Idaho, this :3: day oflanuary,2020‘ on:
Jonah HorwitzFederal Defender Services of Idaho702 W. idaho. Suite 900Boise, [ID 83702Jmmh i'iurwiir‘éial'd.oru
LaMont AndersonPO Box 83720Boise. [D 83720
Eiamont.andcrson{§i_2ag.idahogov
’
{mm M ACKERMAN. CLERK
BitfjaQmMaAJé;Depuiy
MEMORANDUM OPINION AND ORDER ON 15
MOTION TO ALTER OR AMENU JUDGMENTPURSUANT TO LR‘CP. 60(b)(6)
APPENDIX I
Electronically Filed4/22/2021 9:43 AMldaho Supreme CourtMelanie Gagnepain, Clerk of the CourtBy: Corby King—Clark, Deputy Clerk
Charles PetersonEXECUTIVE DIRECTORJonah J. Horwitz, ID Bar No. 10494ASSISTANT FEDERAL DEFENDERFederal Defender Services of Idaho702 W. Idaho, Suite 900Boise, ID 83702Telephone: 208-331—5530Facsimile: 208—331—5559
Attorneys for Gerald Ross Pizzuto, Jr.
IN THE SUPREME COURT OF THE STATE OF IDAHO
Respondent—Appellee.
GERALD ROSS PIZZUTO, JR., )) DOCKET N0. 47709-2020
Petitioner-Appellant, )) CAPITAL CASE
v. )) MOTION TO STAY REMITTITUR
STATE OF IDAHO, ) AND BRIEF IN SUPPORT)))
To prevent the State from meeting the serious claims Appellant Gerald Ross Pizzuto, Jr.
has raised in this appeal by prematurely ending his life, and in the event his petition for rehearing
is denied, he respectfully moves for the remittitur to be stayed until certiorari proceedings
conclude at the U.S. Supreme Court. Because the motion presents an important issue in an
unsettled area of Idaho law, Mr. Pizzuto also respectfully asks the Court to hold oral argument
after the matter is fully briefed and to issue a published opinion delineating the test to be applied
when a party seeks to stay the remittitur. See Idaho Appellate Rule (“I.A.R.”) 32(l) (permitting
the Court to call for oral argument on a motion).
Motion to Stay Remittitur and Brief in Support —— 1
On January 13, 2021, the Idaho County District Court ruled that it would not sign a death
warrant ordering Mr. Pizzuto’s execution until the remittitur issues in the present case. See Ex.
l, Att. A at 5—7.1 The court explained that such a result was necessary because, until the
remittitur, there is an automatic stay of execution in effect under Idaho Code §§ l9-2715(1) and
l9-27l9(2). See id. After the district court rendered its decision, the State did not appeal the
order, and the time for doing so has expired. See I.A.R. 14(a).
On February 3, 2021, this Court issued its opinion in the instant appeal. See Pizzuto v.
State, ~~~ Idaho ---, 2021 WL 358204 (Idaho 2021) (henceforth “the Opinion”). Mr. Pizzuto filed
a timely petition for rehearing on February 22, 2021 and submitted a timely brief in support on
April 19,2021.
Ordinarily, this Court issues its remittitur upon the conclusion of rehearing proceedings.
See I.A.R. 38. However, I.A.R. 44 permits the Court to modify “any step or procedure” in an
appeal “upon finding extraordinary circumstances.” In addition, courts have the inherent
authority to manage their own dockets. See, e.g., Dietz v. Bouldin, I36 S. Ct. 1885, 1888—89
(2016). That authority carries with it the power to stay judicial proceedings where appropriate.
See Air Line Pilots Ass ’n v. Miller, 523 U.S. 866, 879 n.6 (1998) (reiterating that “[t]he power to
stay proceedings is incidental to the power inherent in every court to control the disposition of
the causes on its docket”)? This Court recognized its ability to stay the remittitur pending
certiorari in State v. Van Vlack, 58 Idaho 248, 251 (1937), where it noted such an order in the
1 To the extent it is necessary, Mr. Pizzuto respectfully asks the Court to take judicial notice ofthe cited order. See I.R.E. 201.
2 In this motion, unless otherwise noted, all internal quotation marks and citations are omitted,and all emphasis is added.
Motion t0 Stay Remittitur and Brief in Support — 2
procedural-history section of its opinion. To the extent there is not more law regarding stays of
the remittitur, the dearth of precedent is a compelling reason for the Court to have oral argument
on the instant motion and to issue a published opinion explaining its decision. Even if the
motion is denied, such a course of action would give the Idaho bar helpful guidance and clarity
on the significant question ofwhen a remittitur can be stayed by this Court.
In the case at bar, there are extraordinary circumstances, and it is therefore appropriate—-
in the event rehearing is denied—«for the Court to invoke its authority under I.A.R. 44 and its
inherent power to stay the issuance of the remittitur until certiorari proceedings are over.
Mr. Pizzuto has a right to seek certiorari review at the U.S. Supreme Court of any matters
of federal constitutional law that were resolved by the decision in this case. See 28 U.S.C.
§ 1257(a); Oregon v. Guzek, 546 U.S. 517, 521 (2006). As discussed below, Mr. Pizzuto has a
substantial federal constitutional question to present to the U.S. Supreme Court in his certiorari
petition. If the remittitur is not stayed, Mr. Pizzuto’s right to pursue certiorari review will be
impaired. For under the district court’s ruling, the State is permitted to request a death warrant
when the remittitur issues. See Ex. 1, Att. A at 5—7. ifMr. Pizzuto is executed, he obviously
cannot vindicate his entitlement to certiorari consideration at the U.S. Supreme Court. It is
consequently proper to stay the remittitur until the certiorari proceedings have ended.
The law elsewhere confirms the propriety of the stay here. Around the country, it is
common for remittiturs to be paused to allow the losing party to take his claim to the U.S.
Supreme Court. See, e.g., Branch Banking & Tr. C0. v. Gerrard, 432 P.3d 736, 739 (Nev.
2018); Chase Manhattan Bank v. Principal Funding Corp, 89 P.3d 109, 111 (Utah 2004);
Severns Drilling C0. v. Super. Ct. ofLA Cty., 60 P.2d 530, 531 (Cal. Dist. Ct. App. 1936).
Although some of these jurisdictions have special rules authorizing such stays, that does not
Motion to Stay Remittitur and Brief in Support — 3
change the logic of the law: that a litigant’s claim should be preserved until the highest court in
the country has had an opportunity to consider it. See Books v. City ofElkhart, 239 F.3d 826,
829 (7th Cir. 2001) (Ripple, J ., in chambers) (staying the mandate3 pending certiorari because
“the equities of the situation counsel that the” court’s directive not be enforced until the losing
party was “afforded an opportunity to present its contentions to the Justices of the Supreme
Court of the United States”). The principle is even more powerful here than in the cited civil
cases, Where only money was at stake, because the consequences of denial are far more severe
for Mr. Pizzuto. Mr. Pizzuto will lose his life if the State is able to execute him before he can
pursue certiorari review ofhis claim.
To the extent the Court prefers to apply a more specific standard, the accepted approach
in federal court to similar stay requests may be instructive. Under that approach, a stay pending
certiorari is appropriate when the appellant demonstrates that “the petition would present a
substantial question and that there is good cause for a stay.” Fed. R. App. P. 41(d)(l). In the
Ninth Circuit, such stays are only to “be denied if the Court determines that the petition for
certiorari would be frivolous or filed merely for delay.” 9th Cir. R. 41-1. Mr. Pizzuto submits
that this standard appropriately balances the interest in finality with the interest in allowing
parties to exercise their right to certiorari review before their claims are mooted. And he easily
satisfies the test.
3 The mandate is the federal equivalent of the remittitur in Idaho state court. See Fed. R. App. P.41 (establishing the basic requirements for a mandate); see also Comer v. Murphy Oil USA, Ina,718 F.3d 460, 468 (5th Cir. 2013) (explaining how a decision of a federal circuit court onlybecomes final with the issuance of the mandate).
Motion to Stay Remittitur and Brief in Support — 4
In its Opinion, this Court held that its 2008 decision regarding Mr. Pizzuto’s intellectual-
disability claim was right at the time it was decided, under the law established by Atkins v.
Virginia, 536 U.S. 304 (2002), which first ruled that the intellectually disabled were protected
from execution by the Eighth Amendment. Pizzuto, 2021 WL 358204, at *5—7. The 2008
decision, for its part, determined that Mr. Pizzuto’s seventy-two verbal IQ score disqualified him
from intellectual disability because—as the Court reiterated approvingly in its latest Opinion—
“the legislature did not require that the lQ score be within five points of 70 or below,” but rather
“required an IQ score of 7O or below.” Id. at *7. In the Court’s View, the 2008 opinion got
nothing wrong because Atkins “did not . . . adopt the[] clinical definitions.” Id. at *5.
There is certainly a non-frivolous basis for Mr. Pizzuto to argue to the U.S. Supreme
Court that this conclusion is inconsistent with the Eighth Amendment.
The correctness of the Court’s analysis turns on the standard error ofmeasurement
(SEM), a scientific concept that characterizes IQ scores as ranges, rather than fixed points. See
Hall v. Florida, 572 U.S. 701, 712—14 (2014) (describing how the SEM works). Using the SEM,
Mr. Pizzuto’s seventy-two verbal IQ score is properly understood as reflecting a range of sixty-
seven to seventy-seven. See id. at 713—14. That brings him within the spectrum of sub-average
intellectual functioning, with its seventy-point cutoff, and therefore entitles him to present
evidence regarding the other two criteria: adaptive deficits and onset before age eighteen. See id.
Consequently, the Opinion’s approval of the Court’s 2008 ruling is only constitutionally valid if
the SEM could be ignored at that time under the Eighth Amendment. Mr. Pizzuto has substantial
grounds to assert to the U.S. Supreme Court that it could not.
To begin, Atkins itself referred repeatedly and positively to the SEM. See 536 U.S. at 308
n.3; id. at 309 n.5. Because of these passages, the Supreme Court in Hall read the SEM as “a
Motion to Stay Remittitur and Brief in Support — 5
fundamental premise ofAtkins.” 572 U.S. at 702. It is unsurprising, then, that multiple courts
have announced either that Atkins did in fact embrace the clinical standards, and with them the
SEM, or at least that Hall did not fundamentally change the law when it did so—~which amounts
to the same thing. See Smith v. Sharp, 935 F.3d 1064, 1077—80 (10th Cir. 2019), cert. denied,
141 S. Ct. 186 (2020) (evaluating several IQ scores, including a seventy-three, with an eye to
“Atkins’ statement that a score of 75 or lower will generally satisfy the intellectual functioning
prong” because “[t]he Supreme Court in Atkins accepted clinical definitions for the meaning of
the term mentally retarded”); Van Tran v. Colson, 764 F.3d 594, 612 (6th Cir. 2014) (noting that
Hall “clarified the minimum Atkins standard”); Fuston v. State, 470 P.3d 306, 316 (Okla. Crim.
App. 2020), cert. denied, -—- S. Ct. --—-, 2021 WL 666541 (2021) (summarizing Hall as having
clarified that “failing to take into account the SEM and setting a strict cutoff at 70 . . .
misconstrues Atkins”); Reeves v. State, 226 So. 3d 711, 727 n.7 (Ala. Crim. App. 2016) (“We
view Hall, not as a new rule of constitutional law, but simply as an application of existing law,
i.e., Atkins, to a specific set of facts”).
Mr. Pizzuto appreciates that the Court disagreed with his position, and with these other
judicial decisions, and that is its prerogative. Importantly, though, the Opinion did not cite a
single binding authority that directly supports its construction ofAtkins. lt only mentioned two
potential candidates: Snoop v. Hill, 139 S. Ct. 504 (2019), and Bobby v. Bies, 556 U.S. 825
(2009). Pizzuto, 2021 WL 358204, at *5. Neither of them speaks to the question at issue now.
Shoop deals with adaptive deficits, the second prong of intellectual disability, not questions
about IQ scores and the SEM, which is the first prong and the germane one here. See Snoop, 139
S. Ct. at 506. Unlike with 1Q scores, which Atkins did expressly discuss with reference to the
clinical standards, it did not do so with adaptive deficits, so Shoop clearly provides no definitive
Motion t0 Stay Remittitur and Brief in Support — 6
answer to the present issue. Bies is even farther afield. It is a double-jeopardy case containing
no substantive analysis of intellectual disability whatsoever, for either prong. The language cited
in the Opinion is from the procedural history section of the decision, which hardly signals its
significance as a statement of law. 556 U.S. at 831.
The Opinion’s lack of dispositive authority shows that the issue here has not been
authoritatively resolved. Such resolution is ultimately up to the U.S. Supreme Court, which has
the final say on What the Eighth Amendment meant, under Atkins, in 2008. Furthermore, there is
a division in the lower courts as to the central question presented here: whether Atkins
implemented the SEM or whether it was only made a part of Eighth Amendment law with Hall.
ln stark contrast with the cases mentioned earlier, several courts have—like this one—viewed
Hall and its championing of the SEM as an expansion of the law beyond what was accomplished
by Atkins. See In re Henry, 757 F.3d llSl, 1159 (11th Cir. 2014) (“Nothing in Atkins dictated or
compelled the Supreme Court in Hall to limit the states’ previously recognized power to set an
IQ score of 70 as a hard cutoff.”); Phillips v. State, 299 So. 3d 1013, 1019 (Fla. 2020), cert. pet.
filed (20-6887) (Jan. ll, 2021) (remarking that “Hall establishes a new rule of law”); White v.
Commonwealth, 500 S.W.3d 208, 2l4~15 (Ky. 2016), abrogated 0n other grounds by Woodall v.
Commonwealth, 563 S.W.3d 1, 6 (Ky. 2018) (deeming Hall a “sea change” in the law that
qualified as a new rule).
A division among the lower courts is the strongest possible basis for a certiorari petition.
See Dan T. Coenen, Quiet—Revolution Rulings in Constitutional Law, 99 B.U. L. Rev. 2061, 2132
(2019) (observing that “[m]ost grants of certiorari arise because of conflicts in the lower
courts”). The split in caselaw here is especially likely to draw the U.S. Supreme Court’s
attention because it implicates an issue of national importance. In every death—penalty state,
Motion to Stay Remittitur and Brief in Support —- 7
Atkins claims are common. More than 350 death-row inmates raised intellectual-disability
claims in the period between the issuance ofAtkins and Hall alone. See Alexander H.
Updegrove et al., Intellectual Disability in Capital Cases: Aajusting State Statutes After Moore
V. Texas, 32 Notre Dame J.L. Ethics & Pub. Pol’y 527, 545 n.110 (2018). Recognizing the
importance ofAtkins issues—and their difficultymthe U.S. Supreme Court has addressed
intellectual disability five times since exempting the intellectually disabled from the death
penalty in 2002. See Moore v. Texas, 139 S. Ct. 666 (2019); Shoop, 139 S. Ct. 504; Moore v.
Texas, 137 S. Ct. 1039 (2017); Brumfield v. Cain, 576 US. 305 (2015); Hall, 572 US. 701.
Even within intellectual-disability law, the question ofwhat Atkins encompassed, as
opposed to Hall, is one with particularly far-reaching consequences. Perhaps most significantly,
the interplay between the cases sheds light on whether Hall applies retroactively, because
retroactivity analysis turns in large part on whether a “new rule” is involved. See, e.g., Chaia’ez
v. United States, 568 U.S. 342, 347-54 (2013) (providing an example ofhow an inquiry into
retroactivity implicates the question ofwhether the U.S. Supreme Court rule at issue is new or
not). The nature ofwhat Atkins held, versus Hall, is also germane in habeas proceedings, which
raise the question ofwhat was “clearly established” by the U.S. Supreme Court’s cases at the
time the state judiciary ruled on the claim, as in Smith, supra.
In sum, Mr. Pizzuto can identify a concrete disagreement among published appellate
opinions on a difficult question of nationwide significance with life-and-death stakes. As such,
he has a formidable basis to seek certiorari review. His certiorari question is by any measure
substantial, and certainly not frivolous. He should therefore have an opportunity to pose the
question to the highest court in the country without facing an execution that would moot his
Motion to Stay Remittitur and Brief in Support -— 8
petition before it is decided.4 Because executions are irrevocable, capital cases demand “a
correspondingly greater degree of scrutiny.” California v. Ramos, 463 U.S. 992, 998—99 (1983).
Here, such scrutiny requires that Mr. Pizzuto be permitted to fully exercise his appellate rights
and seek review by the U.S. Supreme Court on his substantial issue of federal constitutional law
before his case is extinguished by his execution. If the U.S. Supreme Court rules against Mr.
Pizzuto, so be it. He should still be able to try before the State puts him to death.
Finally, a stay of the remittitur will potentially spare a number of courts and attorneys
from extensive and difficult litigation that would otherwise be necessary. The issuance of a
death warrant triggers complicated and time-consuming disputes in court. See Melanie
Kalmanson, Somewhere Between Death Row and Death Watch, 5 U. Pa. J. L. & Pub. Aff. 413,
416 (2020) (discussing how the capital system creates “bottlenecks at the time of execution,” in
4 Although Mr. Pizzuto unsuccessfully presented a similar issue to the U.S. Supreme Court when
challenging the Ninth Circuit’s decision on his Atkins issue, see Pizzuto v. Yora’y, 141 S. Ct. 661
(2020), the instant case is a far better vehicle for the question. Federal habeas petitions carrywith them an exceedingly deferential standard of review, which makes it difficult for the Court toreach the underlying questions in a straightforward way that advances the law. See Harringtonv. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement”); see alsoPeede v. Jones, 138 S. Ct. 2360, 2361 (2018) (Sotomayor, J ., respecting the denial of certiorari)(“Considering the posture of this case, under which our review is constrained by the [federalhabeas standard of review], I cannot conclude the particular circumstances here warrant thisCourt’s intervention,” even though the lower court’s approach was “deeply concerning”); Dunnv. Madison, 138 S. Ct. 9, 12 (2017) (Ginsburg, J ., concurring) (remarking that the issue presenteddeserved a “full airing” but that given the habeas restrictions it was not a good vehicle for such
an airing in its current posture). By contrast, state post-conviction proceedings do not implicatethat taxing standard, and therefore allow the U.S. Supreme Court to address the matter cleanlyand directly. See generally Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev.159 (2021) (explaining how the U.S. Supreme Court more and more commonly grants review in
state post-conviction appeals to avoid the procedural problems with federal habeas cases).
Motion to Stay Remittitur and Brief in Support — 9
which inmates are compelled to raise claims “in last—minute proceedings” and “courts are forced
to review these claims in a ‘fire drill approach’ under increasingly short warrant periods”).
When a death warrant is signed in Idaho, it sets a date for an execution no more than thirty days
in the future. See Idaho Code § l9~2715(2). Idaho’s last execution involved extensive litigation
in a number of courts after the issuance of the death warrant, including here, where two
substantial appeals were resolved Within the space of three days by lengthy, reasoned opinions.
See Leavitt v. Craven, 154 Idaho 661 (2012); State v. Leavitt, 153 Idaho 142 (2012). There is no
need to burden the judicial system and the parties with such litigation now if it might be mooted
later by the U.S. Supreme Court’s intervention.
Indeed, Mr. Pizzuto’s end-stage litigation is likely to be especially involved. Mr. Pizzuto
has a tremendously complex medical situation. He is on hospice with terminal bladder cancer.
See Ex. l, Att. B at l. In December 2019, Mr. Pizzuto’s physicians estimated that his life
expectancy was less than twelve months. See Ex. l, Att. C. More recently, on March 3, 2021,
Mr. Pizzuto’s prison doctor noted that he “suspect[ed] . . . some level ofmetastasis . . . is
occurring.” Ex. A., Att. D at 4. Mr. Pizzuto also has serious cardiac disease, which has led to
two heart attacks and the placement of four stents. See Ex. 1, Att. E. In addition, Mr. Pizzuto
has Type 2 diabetes with related nerve damage to his legs and feet, as well as coronary
obstructive pulmonary disease. See Ex. 1, Att. B at l, 2. As a result of these serious ailments
and others, Mr. Pizzuto has received forty-two different medications over the last two years. See
Ex. l.
Mr. Pizzuto’s dire health status will likely spur onerous litigation over his execution. For
instance, the State’s choice of a lethal drug or drugs—which it has not yet announcedwmay pose
a risk of causing Mr. Pizzuto an unconstitutionally painful execution, either because of his many
Motion t0 Stay Remittitur and Brief in Support —— 10
illnesses or because ofhis prescription-drug history. See Bucklew v. Precythe, 139 S. Ct. 1112,
1 125 (2019) (recognizing that a condemned inmate has a right under the Eighth Amendment not
to be executed in a manner that causes undue suffering, which can be a result of his individual
health conditions). Or an issue relating to Mr. Pizzuto’s competence to be executed might arise.
See Ford v. Wainwright, 477 U.S. 399, 409—1 0 (1986) (interpreting the Eighth Amendment to
prohibit the execution of incompetent prisoners). The general rule is that competence claims are
not ripe until a death warrant has issued. See, e.g., Bowles v. Inch, N0. 3:19-cv-936, 2019 WL
3890201, at *4 (MD. Fla. Aug. 18, 2019). Given Mr. Pizzuto’s proximity to death, the chances
ofhim becoming incompetent are significant. 1n fact, one of the mental-health clinicians at the
prison observed in March 2020 that Mr. Pizzuto was “approaching natural death” and had
“begun experiencing memory loss and mild disorientation associated with the death process.”
See Ex. 1, Att. F. Ordinarily, competence claims must be brought in state court before they can
be ruled upon by the federal judiciary, see, e.g., Middleton v. Roper, 759 F.3d 867, 869 (8th Cir.
2014) (per curiam), thus depleting the resources of both sovereigns.
These difficult issues and others like them will divert many hours of taxpayer-funded
entities if they must be adjudicated, including in thejudiciary and the Attorney General’s Office.
Because they might be avoided if the U.S. Supreme Court grants the certiorari petition, a stay of
remittitur will provide much-needed breathing room, and it is appropriate for that reason as well.
1n light of the above, Mr. Pizzuto respectfully asks in the event rehearing is denied that
the issuance of the remittitur be stayed until certiorari proceedings conclude at the U.S. Supreme
Court. Because the motion presents an important issue in an unsettled area of Idaho law, Mr.
Pizzuto also respectfully asks the Court to hold oral argument after the matter is fully briefed and
to issue a published opinion setting forth the standard for when a remittitur should be stayed.
Motion t0 Stay Remittitur and Brief in Support —— 11
Dated this 22 day ofApril 2021.
/s/ Jonah J. HorwitzJonah J. HorwitzAttorney for Petitioner—Appellant
CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day ofApril 2021, I caused to be served a true and
correct copy of the foregoing document by the method indicated below:
L. LaMont Anderson _____U.S. Mail
Deputy Attorney General__
Hand DeliveryChief, Capital Litigation Unit __
FacsimileStatehouse Mail, Room lO
__Federal Express
PO Box 83720 __)_§_ ICourt file and serveBoise ID 83720—0010
/s/ Jonah J. HorwitzJonah J. HorwitzAttorney for Petitioner-Appellant
Motion to Stay Remittitur and Brief in Support — 12
APPENDIX J
Electronicany Filed4/28/2021 9:16 AMldaho Supreme CourtMelanie Gagnepain, Clerk of the CourtBy: Corby King-Clark, Deputy Clerk
Charles PetersonEXECUTIVE DIRECTORJonah J. Horwitz, ID Bar No. 10494ASSISTANT FEDERAL DEFENDERFederal Defender Services of Idaho702 W. Idaho, Suite 900Boise, ID 83702Telephone: 208-331-5530Facsimile: 208~33 [email protected]
Attorneys for Gerald Ross Pizzuto, Jr.
IN THE SUPREME COURT OF THE STATE OF IDAHO
Respondent-Appellee.
GERALD ROSS PIZZUTO, JR, )) DOCKET NO. 47709-2020
Petitioner-Appellant, )) CAPITAL CASE
v. )) REPLY IN SUPPORT OF MOTION
STATE OF IDAHO, ) TO STAY REMITTITUR)))
In its rush to execute Appellant Gerald Ross Pizzuto, Jr. before his serious constitutional
claim can be fully considered by the US. Supreme Court, the State opposes his request to stay
the remittitur. See Resp. to Mot. to Stay Remittitur, filed Apr. 26, 2021 (hereinafter “Response”
or “Resp.”). The State is candid about the purpose of its response: it wishes to have Mr. Pizzuto
“executed prior to the Supreme Court deciding his petition for certiorari.” Id. at 4. Although the
State is entitled to take that position, its desire to streamline an execution before the appellate
process takes its course is hardly a persuasive reason for the Court to embrace its argument, and
the stay should be granted.
Reply in Support ofMotion to Stay Remittitur — 1
Before advancing to the merits of the State’s propositions, Mr. Pizzuto pauses to take up
a preliminary matter. Contrary to the State’s depiction, the motion to stay the remittitur, filed
April 22, 2021 (hereinafter “Motion” or “Mot.”) is not at all a recognition of the “futility” ofMr.
Pizzuto’s petition for rehearing. Resp. at 2. Mr. Pizzuto filed the motion to stay the remittitur in
the event the Court elects to deny his petition for rehearing. Attorneys routinely offer theories in
the alternative without belittling any of them. Mr. Pizzuto continues to stand by his petition for
rehearing, which is meritorious, but his counsel will simultaneously prepare for the possibility of
its denial, as any diligent lawyer would. That said, the fact that the Motion is effectively an
alternative request means that it may be prudent for the Court to refrain from issuing a ruling on
the timing of the remittitur until it has ruled on the petition for rehearing.
I. The Court Has The Authority To Stay The Remittitur.
Proceeding to the substance of the State’s Response, it begins by attempting
unsuccessfully to undermine the Court’s power to conduct its own affairs. The State does so by
emphasizing the word “shall” in I.A.R. 38, where the usual approach to the issuance of the
remittitur (upon the denial of rehearing) is described.‘ Resp. at 3. The Court’s authority is not
so anemic. Rather, the whole purpose of I.A.R. 44 is to allow the Court to make exceptions to
the ordinary “step[s] or procedure[s]” in any appeal when “extraordinary circumstances” are
present. The entry of remittitur on the denial of rehearing is undeniably such a procedure.
Consequently, the Court has the ability to stay the remittitur until the certiorari proceedings
conclude. Indeed, even by the State’s lights, the term “shall” could not deprive the Court of the
power to modify an appellate process where appropriate in this fashion. The State acknowledges
1 All citations here follow the same conventions as in the Motion.
Reply in Support 0fMotion to Stay Remittitur — 2
that I.A.R. 44 has been used “to expedite appeals.” Resp. at 4. But the rule establishing briefing
deadlines, like I.A.R. 38, says that the parties “shall” file their submissions by certain dates.
I.A.R. 34(0). Clearly, “shall” is not a magic formula displacing the Court’s discretion to manage
its own docket in whatever way is necessary.
Next, the State wrongly contends that the “Court has never stayed issuance of the
remittitur under these facts.” Resp. at 4. To begin, that is false. The Court did precisely what
Mr. Pizzuto is urging here in State v. Van Vlack, 58 Idaho 248 (193 7): stay a remittitur in a
capital case pending certiorari proceedings at the U.S. Supreme Court? Perhaps more
importantly, the State’s reference to recent capital appeals is a red herring. In none of those
cases did the inmate ask the Court to stay its remittitur. See Hall v. Idaho, 139 S. Ct. 1618
(2019); Dunlap v. Idaho, 137 S. Ct. 40 (2016); Abdullah v. Idaho, 577 U.S. 1146 (2016); Leavitt
v. Craven, 154 Idaho 661 (2012); State v. Leavitt, 153 Idaho 142 (2012).3 That the Court
followed its customary practice in these appeals signifies nothing about what to do when an
exception is requested, as it is here.
II. Cases Involving Stays Of Execution Are Not Controlling.
Venturing even farther afield, the State surveys cases in which stays of execution have
been sought with the U.S. Supreme Court pending certiorari. See Resp. at 4. What the State
' 2 According to the State, Van Vlack undercuts Mr. Pizzuto’s motion because the inmate there
“never filed a petition for certiorari, but merely used the procedure to delay his execution.”
Resp. at 5. The comparison is baseless. Although Mr. Pizzuto has no insight into Mr. VanVlack’s mindset nearly a century ago, he assures the Court that he will file a certiorari petition.There is no foundation to accept the State’s unexplained assumption to the contrary.
3 Undersigned counsel’s office represents the prisoners in Hall, Dunlap, and Abdullah in their
federal habeas proceedings. He has confirmed that no motion to stay the remittitur was filed in
those cases by reviewing his office’s own files, as well as contacting where needed the attorneyswho handled the pertinent state appeals. The Clerk confirmed the same fact for the Leavitt cases.
Reply in Support 0fMotion to Stay Remittitur - 3
overlooks is that Mr. Pizzuto is not asking the Court to stay his execution—«he is asking for a stay
of the remittitur. If a stay of the remittitur is in order, there will not be a death warrant until the
certiorari petition is resolved, and there will be no need for Mr. Pizzuto to seek a stay of
execution pending certiorari in this appeal. See Mot. at 3. The State’s View is that the
availability of a stay from the U.S. Supreme Court in connection with a certiorari petition always
and everywhere defeats the need for a stay of the remittitur. But that cannot be the law. For
despite the Attorney General’s notable silence on the point, such stays are routinely granted by
courts around the country. See id. at 3, 4.
The State’s reference to U.S. Supreme Court orders vacating stays of execution, see
Resp. at 4, also misses the mark. Not only are these stays of execution, they involve appeals
from federal courts. See Dunn v. Smith, 141 S. Ct. 1290 (2021); Gutierrez v. Saenz, 141 S. Ct.
1260 (2021). The U.S. Supreme Court has general supervisory authority over the federal
judiciary—it wields no such power over the states. See Danforth v. Minnesota, 552 U.S. 264,
289 (2008) (“While we have ample authority to control the administration ofjustice in
the federal courts—particularly in their enforcement of federal legislation-we have no
comparable supervisory authority over the work of state judges”); Ker v. California, 374 U.S.
23, 32 (1963) (similar). As a result, on certiorari, the U.S. Supreme Court would presumably
have the power to dissolve a stay issued by the federal judiciary for any reason. Not so for a
state stay. Considering the basic principles of federalism, the U.S. Supreme Court would have
neither the aspiration nor the ability to interfere with a stay of remittitur entered here pursuant to
Idaho’s appellate rules.
Reply in Support ofMotion t0 Stay Remittitur ~ 4
III. The Stay Would Not Intrude Upon The U.S. Supreme Court’s Domain.
At times, the State appears to be making the implausible insinuation that the U.S.
Supreme Court would somehow resent the issuance of a stay of the remittitur as an intrusion on
its own prerogative. See Resp. at 4. It is an odd notion. A stay of the remittitur would do no
more than allow the U.S. Supreme Court the comfortable amount of time to consider Mr.
Pizzuto’s certiorari petition that it would have in any run-of—the-mill case, without the
unnecessary pressure of a looming execution.
The State’s mischaracterization of the U.S. Supreme Court enjoying “ample time” to
consider stays of execution pending certiorari during the recent spree of federal executions only
proves Mr. Pizzuto’s point. Id. Notwithstanding the State’s historical revisionism, the U.S.
Supreme Court did not have “ample time” in those cases. It rendered its “weighty” stay
“decisions in response to emergency applications, with little opportunity for proper briefing and
consideration, ofien in just a few short days or even hours,” and rarely with “any public
explanation for their rationale.” United States v. Higgs, 141 S. Ct. 645, 647 (2021) (Sotomayor,
J ., dissenting). Although the quoted words were offered in dissent, no Justice disagreed with
their account of how rushed the stay litigation was in the U.S. Supreme Court during the recent
executions.
That rush is a matter of public record also documented in numerous media accounts. See,
e.g., Elizabeth DePompei et al., Lisa Montgomery becomesfirst woman executed byfeds in 67
years, USA Today, Jan. 12, 2021, available at
httns://www.usat<:)dav .com/storv/news/natierr/202 1/0 l, /l 2/lisa—montgomerv— first—us-execution—
:female-inmate~67—vears—halted/6635530002/ (recounting how “[t]he U.S. Supreme Court cleared
the way for [Lisa] Montgomery’s execution with a pair of ordersjust before midnight” “[a]fter a
Reply in Support ofMotion to Stay Remittitur —- 5
flurry of last-minute court orders” and “appeal after appeal” by both sides); Amy Howe, In
overnight orders, justices allow federal execution t0 proceed, SCOTUSblog, Jul. l4, 2020,
available at https://www.scotusblo2,com/2020/O7/in—ovemight~orders-iustices-a1low—federal-
execution-to- _ roceed/ (describing how the U.S. Supreme Court denied stays in the middle of the
night for Daniel Lee “after a flurry of last-minute filings”).
Regardless ofwhether the stay decisions were right or wrong, the reality is that they were
made under extremely short and pressure-filled timeframes. The idea that the U.S. Supreme
Court would begrudge more breathing room does not comport with common sense.
More generally, it is hard to understand the State’s express preference to engage in “last
minute litigation,” Resp. at 4, both at the U.S. Supreme Court and everywhere else, rather than
give Mr. Pizzuto’s certiorari petition a full airing and allowing the other pending cases to be
handled thoroughly and carefully. That is a recipe for mistakes to be made in this life—and-death
case, and it benefits no one, including the courts involved.
IV. The Denial Of The Motion T0 Recall The Remittitur Is Irrelevant.
In another misdirection, the State cites this Court’s denial ofMr. Pizzuto’s earlier motion
to recall the remittitur in his original intellectual-disability appeal. See id. at 5. The Court did
not explain its reasons then, but the possibilities do not shed any light on Mr. Pizzuto’s current
Motion. For example, the Court may have felt it did not have the authority to take the
affirmative step of recalling a remittitur, since arguably no appellate rule provides for such a
maneuver. That is not true of the Motion at bar now. I.A.R. 44 explicitly authorizes the Court to
alter its usual appellate practices. Entry of the remittitur is an appellate practice. Hence, the
Court is allowed to refrain from issuing the remittitur until certiorari is resolved. The Court
merely preserved the status quo in the earlier appeal by denying the motion to recall the
Reply in Support ofMotion to Stay Remittitur -— 6
remittitur. Preserving the status quo now would be staying the issuance of the remittitur, and
there is nothing preventing the Court from doing so.
Alternatively, the Court may have refused to recall the remittitur before because it
disagreed with Mr. Pizzuto’s substantive theory as to why he was entitled t0 relief. That would
seem quite likely, as the motion to recall the remittitur in the original intellectual-disability
appeal and the briefs in the instant appeal rested on the same fundamental arguments about the
effect of the Ninth Circuit’s opinion in the habeas case, the propriety of an evidentiary hearing,
and so forth. Compare Resp, App. A at 5-20, with Aplt. Opening Br., filed Apr. 23, 2020, at 9—
30 (hereinafter “Aplt. Opening Br.”). Of course, the Court eventually articulated its
disagreement with those arguments in its Opinion here. See Pizzuto v. State, --— Idaho ---, 2021
WL 358204 (Idaho 2021). Such a disagreement would not speak to whether a stay of the
remittitur is needed. The stay depends not on any preconceptions about Mr. Pizzuto prevailing
on the merits, but only on the premise that a higher court ought to hear the issue before it is
mooted by Mr. Pizzuto’s death.
V. The U.S. Supreme CourtWill Have Jurisdiction Over The Certiorari Petition.
Turning the U.S. Supreme Court’s well—established norms on their head, the State insists
there would be no jurisdiction to entertain Mr. Pizzuto’s contemplated certiorari petition. See
Resp. at 6. The State concedes that this Court’s Opinion “addressed the correctness of its” prior
decision—and in so doing addressed the Eighth Amendment question that will be at the center of
the certiorari petition. Id. Nevertheless, the State maintains that the discussion in question “did
not form the basis of” the ruling. Id. Essentially, the Attorney General’s theory is that the
Opinion rests on an adequate and independent state-law ground. See Resp. at 6 (citing Oregon v.
Reply in Support ofMotion to Stay Remittitur - 7
Guzek, 546 U.S. 517 (2005)); see also Guzek, 546 U.S. at 523 (elaborating on the adequate-and—
independent-state—law test).
The first problem with the State’s strategy in this regard is that it is directing its protests
to the wrong Court. If the Attorney General feels there is an adequate and independent state-law
basis for the Opinion, he should tell the U.S. Supreme Court when he opposes the certiorari
petition. See U.S. Sup. Ct. R. 15.1 (requiring a brief in opposition to certiorari petitions in
capital cases). The State’s View on the subject is not a legitimate basis for short—circuiting Mr.
Pizzuto’s appeal by allowing his execution and preventing him from offering his own argument
to the tribunal that can decide who is correct: the U.S. Supreme Court.
Importantly, the U.S. Supreme Court frequently grants certiorari petitions despite (or
because) a question as to whether the decision below depended on an adequate and independent
foundation in state law. See, e.g, Espinoza v. Mont. Dep ’t ofRevenue, 140 S. Ct. 2246, 2262
(2020); Foster v. Chatman, 136 S. Ct. 1737, 1745—46 (2016); Kansas v. Carr, 577 U.S. 108, 117
(2016); Smith v. Texas, 550 U.S. 297, 317-18 (2007) (Alito, J., dissenting); Guzek, 546 U.S. at
523; Caldwell v. Mississippi, 472 U.S. 320, 328 (1985). 1n none ofthose cases did the question
prevent the U.S. Supreme Court from granting certiorari. In some of them, no doubt, the
existence of the issue cut in favor of certiorari, as the Court evidently saw a value to the legal
community in publishing an analysis of the adequate—and—independent rule. At any rate, the
State’s assumption that certiorari will be denied merely because it has invoked the adequate-and-
independent doctrine is just that—an assumption. Mr. Pizzuto should not be executed before his
appeal is fully disposed of because of an unexamined assumption.
Furthermore, the State’s application of the doctrine is incorrect. Though the State
neglects to mention it, the U.S. Supreme Court indulges a strong presumption that the decision
Reply in Support ofMotion t0 Stay Remittitur — 8
below did not turn on an independent and adequate feature of state law. See, e.g., Florida v.
Powell, 559 U.S. 50, 56—57 (2010) (outlining the presumption). Following that presumption,
any ambiguity in the decision under review results in a finding that “the most reasonable
explanation” is “that the state court decided the case the way it did because it believed that
federal law required it to do so.” Michigan v. Long, 463 U.S. 1032, 1040—41 (1983). It is only
when “the state court decision indicates clearly and expressly that it is alternatively based on
bona fide separate, adequate, and independent grounds” that jurisdiction is absent. Id. at 1041.
The State identifies no such clear and express indication in the Opinion, and there isn’t
one. Mr. Pizzuto argued in the appeal at bar that the Ninth Circuit decision in his habeas
proceeding triggered I.R.C.P. 60(b) because it revealed how this Court’s 2008 opinion was
inconsistent with the science and the law in place at the time, and in particular Atkins v. Virginia,
536 U.S. 304 (2002).4 See generally Aplt. Opening Br. at 9—16. In rejecting Mr. Pizzuto’s
contention, the Court first squarely held that the 2008 opinion was actually not in violation of
Atkins. See Pizzuto, 2021 WL 358204, at *7 (“[T]his Court’s decision [in 2008] was not
inconsistent with the holding in Atkins”). That was plainly a federal constitutional
determination, as Atkins is an Eighth Amendment decision. Even the State does not deny that
much. Thus, the only way in which there would be an adequate and independent basis for the
4Separately, Mr. Pizzuto argued that he was entitled to Rule 60(b) relief because ofprior
counsel’s performance. See Aplt. Opening Br. at 16—21. He does not plan to advance that
contention to the U.S. Supreme Court and so he will not elaborate upon it here. The remaining
aspect of his Rule 60(b) theory is an independent one. That is, if the Ninth Circuit opinion was a
valid trigger for a Rule 60(b) motion, then an evidentiary hearing would be warranted, regardlessofwhat judicial fate meets his challenge to prior counsel.
'
Reply in Support ofMotion to Stay Remittitur — 9
Opinion is if there were a clear and express statement elsewhere that—0n its ownmcompelled
affirmance. There is not.
The next section of the Opinion summarizes the federal district court’s findings in order
to opine that they raise a “question” as to “how much weight, if any, should be assigned to the
Ninth Circuit’s dicta.” Id. at *9. That is neither clear and express nor a comment about state
law.
After surveying the federal district court’s findings, the Opinion turns to timeliness.
There, the Opinion recites and adOpts the state district court’s conclusion that Mr. Pizzuto’s
I.R.C.P. 60(b) motion was untimely because it was not filed within a reasonable period after the
publication ofHall v. Florida, 572 U.S. 701 (2014). See Pizzuto, 2021 WL 358204, at *10. That
logic only makes sense ifHall changed the relevant law. For ifHall did not change the relevant
law, it would not have been a valid triggering event for Mr. Pizzuto’s claim, and he would have
had no obligation to assert the issue in 2014. The question ofwhether Hall altered the landscape
in this way is a purely legal one that turns on what the Eighth Amendment means, as interpreted
by the U.S. Supreme Court. Specifically, the question depends on what the law was prior to
Hall, as manifested by Atkins, and how—if at allmthe law later evolved. That is indisputably a
matter of federal constitutional law. Again, the State does not say otherwise.
The final germane section in the Opinion takes up the question ofwhether Mr. Pizzuto
sufficiently demonstrated “unique and compelling circumstances necessary to justify relief under
Idaho Rule ofCivil Procedure 60(b)(6).” Pizzuto, 2021 WL 358204, at *10. In that section, the
Opinion upholds the district court’s finding that Mr. Pizzuto only chose the Rule 60(b) route
“because a sixth successive petition would not have been timely.” Id. at * 12. As before, the
logic assumes that Hall changed the law, and that a sixth petition would have said as much. The
Reply in Support 0fMotion to Stay Remittitur — 10
logic does not work ifMr. Pizzuto is right that the Court’s 2008 opinion contradicted Atkins at
the time, and that Hall changed nothing of substance. If that’s the case, there is no reason to
imagine a sixth petition. The analysis is accordingly “interwoven with the federal law,” i.e., with
the significance ofAtkins and Hall, and jurisdiction is present. Long, 463 U.S. at 1040. At a
bare minimum, there is certainly nothing in the Opinion that “clearly and expressly” voices a
reliance on independent state—law grounds, id. at 1041, and therefore nothing to sustain the
State’s perspective that Mr. Pizzuto can reasonably be executed before he is able to make his
case to the U.S. Supreme Court.
To the unclear extent the State is contesting jurisdiction because the Opinion involves a
state procedural rule (I.R.C.P. 60(b)), it is setting up a false dichotomy. If the application of a
state procedural rule implicates federal constitutional law, certiorari review can be had. See
Harris v. Reed, 489 U.S. 255, 261 (1989) (“The Long ‘plain statement’ rule applies regardless of
whether the disputed state—law ground is substantive . . . or procedural . . . . Thus, the mere fact
that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent
this Court from reaching the federal claim”).
One could interpret the Attorney General to be playing not so much to the independent-
and—adequate doctrine, as to the prohibition on advisory opinions. In other words, the State hints
that even if the certiorari question were answered in Mr. Pizzuto’s favor, this Court’s mandate
would not be reversed, because there would be other, untouched bases for the denial of relief.
insofar as that is the State’s outlook, it is erroneous. In Creeclz v. Arave, 947 F.2d 873, 881—85
(9th Cir. 1991), for instance, the Ninth Circuit vacated an Idaho state death sentence on three
separate grounds. The U.S. Supreme Court granted certiorari on one of those issues in order to
correct the Ninth Circuit’s misunderstanding of it. See Arave v. Creech, 507 U.S. 463, 470
Reply in Support 0fMotion to Stay Remittitur —- 11
(1993). However, the Court left the other two claims upon which relief had been granted
undisturbed. See id. at 478. As a consequence, deSpite the reversal, Mr. “Creech [was] entitled
to resentencing in state trial court.” Id. at 479. In Creech, just as here, it could be said that
certiorari was improvident because there were multiple grounds supporting the decision below.
Yet certiorari was granted because the Ninth Circuit had squarely addressed an issue calling for
the U.S. Supreme Court’s attention. The Opinion does the same. And in still other common
cases, dissenting Justices accuse majorities at the U.S. Supreme Court of issuing advisory
opinions. See, e.g., Foster, 136 S. Ct. at 1763 (Thomas, J., dissenting); Alabama v. Shelton, 535
U.S. 654, 676~77 (2002) (Scalia, J., dissenting); City ofChz'cago v. Morales, 527 U.S. 41, 77
(1999) (Scalia, J ., dissenting). All of these cases go to underscore how the advisory—opinion
charge is one properly presented to the U.S. Supreme Court, which can—in light of full briefing
on the issue by both parties—~do as it sees fit. It is not an excuse for prejudging the issue and
expediting a hasty execution.
VI. The Certiorari Petition In Federal Habeas Does Not Defeat The Need For One Now.
In the State’s eyes, it is enough that Mr. Pizzuto was able to seek certiorari from the
Ninth Circuit’s opinion, and it is therefore acceptable to execute him before he does so again
now. See Resp. at 6—«7. But Mr. Pizzuto has an independent right to challenge this Court’s
opinion via certiorari, regardless ofwhat happened before. His right should not be sacrificed
through his execution because of an entirely separate proceeding. In addition, it is not sound to
opine, as the State does, that the federal case was just as good a vehicle for certiorari as this one.
As set forth in the Motion, the federal certiorari petition was hamstrung by the extremely
restrictive habeas statute, which is not at issue here. See Mot. at 9 n.4.
Reply in Support 0fMotion t0 Stay Remittitur — 12
Without explanation or authority, the State disagrees. It posits that “while federal habeas
law obviously applied” in the Ninth Circuit case, “the underlying question” in the certiorari
petition “was not constrained by federal habeas law.” Resp. at 7. “Rather,” the State continues,
“the primary questions centered on whether Atkins mandated the use of clinical standards as
articulated in Hall.” Id. Though that is admittedly how Mr. Pizzuto sought to frame the
question, the undeniable fact is that the federal habeas standard was an obstacle to certiorari
review. The Ninth Circuit did not answer the question ofwhat Atkins and Hall established in a
vacuum. It answered the question through the habeas lens, which considers whether “the state
court’s ruling . . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Pizzuto v.
Yordy, 947 F.3d 510, 522—23 (9th Cir. 2019), cert. denied, 141 S. Ct. 661 (2020). The Ninth
Circuit went out of its way to clarify that it was not querying whether this Court’s “determination
was incorrect but whether that determination was unreasonable——a substantially higher
threshold.” Id. at 523. By contrast, when the Opinion deemed the Court’s 2008 decision~and
its view ofAtkins and Hall—correct, it did so definitively, without any comparable baggage. See
Pizzuto, 2021 WL 538204, at *5~7. There can be no serious debate that the present case is a far
superior vehicle for certiorari review.
Notably, the State was not so insensitive to the problem with the certiorari petition in the
habeas case at the time. The very first criticism the State made of the certiorari petition in its
opposition at the U.S. Supreme Court was that Mr. “Pizzuto virtually ignores the fact that his
petition is governed by” the draconian federal habeas statute. Ex. l at 9. Having convinced the
U.S. Supreme Court to deny certiorari in the habeas case for the same defect Mr. Pizzuto
highlights now, the State cannot credibly deny the defect’s existence.
Reply in Support ofMotion to Stay Remittitur - 13
Aside from blinding himself to his own previous averments, the Attorney General blinds
himself to declarations by U.S. Supreme Court Justices themselves on the comparison between
certiorari petitions originating in state post—conviction versus federal habeas. See Peede v. Jones,
138 S. Ct. 2360, 2361 (2018) (Sotomayor, J ., respecting the denial of certiorari) (“Considering
the posture of this case, under which our review is constrained by the [federal habeas standard of
review], I cannot conclude the particular circumstances here warrant this Court’s intervention,”
even though the lower court’s approach was “deeply concerning”); Dunn v. Madison, 138 S. Ct.
9, l2 (2017) (Ginsburg, 1., concurring) (remarking that the issue presented deserved a “full
airing” but that given the habeas restrictions it was not a good vehicle for such an airing in its
current posture). These are statements by the very people who are deciding whether a certiorari
petition should be granted or not. They are far more informative than the State’s cursory and
self-serving thoughts on the matter.
VII. Judicial Economy Favors A Stay Of The Remittitur.
In his Motion, Mr. Pizzuto stressed that a stay of the remittitur would servejudicial
economy by sparing a number of courts needless and onerous litigation that would occur if a
death warrant were to issue. See Mot. at 9~11. The State regards Mr. Pizzuto’s argument as a
plea to “die of natural causes prior to his execution.” Resp. at 7. It is not. The fact of the matter
is that Mr. Pizzuto’s complicated and dire health situation is likely to engender difficult and
time—consuming litigation. See Mot. at 9—11. Tellingly, the State does not contradict the
proposition. Nor could it—there are obvious concerns inherent in the lethal-injection execution
of a man who is on hospice with terminal cancer, Type 2 diabetes, and COPD, and who has been
prescribed dozens ofmedications in recent years. There is nothing nefarious or manipulative
Reply in Support 0fMotion to Stay Remittitur — 14
about recognizing the reality of the situation and saving courts a substantial burden they might
not need to undertake if certiorari is granted.
It is true, as the State observes, that some litigation related to Mr. Pizzuto’s possible
execution has already begun. See Resp. at 7—8. Still, other potential litigation has not, namely,
any Eighth Amendment disputes over the humaneness of the State’s chosen drug(s) or Mr.
Pizzuto’s competency to be executed. See Mot. at lO—~l l. The fact that two cases are in progress
hardly shows that the parties and the courts should be forced to plunge needlessly into two more,
both ofwhich are liable to prove complex and challenging for all involved. Nor does it show
that the two ongoing cases should be channeled into an artificially compressed schedule.
It is also significant that while it accuses Mr. Pizzuto of gamesmanship, it is the State that
is trying to have its cake and eat it too when it comes to the timeline for execution litigation. In
both of the pending executions referenced by the State, the Attorney General has pushed against
the accelerated briefing that Mr. Pizzuto has advocated for and has lobbied for the usual
timelines to apply. See Ex. 2 at 6—7; Ex. 3 at 4. Even more dramatically, the State has
succeeded in putting one of those cases entirely on hold by attacking it as unripe. See Pizzuto v.
Little, No. 1:20—cv-1 l4, 2020 WL 6747974, at *4 (D. Idaho Nov. 17, 2020). Stated differently,
the Attorney General is aggressively seeking an execution date as soon as possible here while
telling other courts that there is no rush to rule on the few claims Mr. Pizzuto has the capacity to
bring now. If the State is genuine in its preference for litigation to take place in an orderly,
deliberative fashion, as it has expressed in the other cases, there is an easy solution: a stay of the
remittitur. That the State is so adamantly opposing the stay reflects its true motives, which are
not to allow full and fair litigation, but to railroad through an execution before such litigation can
take place.
Reply in Support of Motion t0 Stay Remittitur — 15
Beside actively assisting the State in its supposed desire for breathing room in the other
cases, the stay of the remittitur would cause the State no measurable prejudice in the present
case. Mr. Pizzuto has been on death row for more than thirty-four years. See Pizzuto v. State,
134 Idaho 793, 794 (2000). A stay of the remittitur for a few more monthss to allow Mr. Pizzuto
to litigate the substantial issues in this case will do the State no harm.
Furthermore, the State’s abrupt prioritization of speed is at odds with its historical
approach to the case, which it has significantly delayed through its own extensions. The reason
that Mr. Pizzuto has not yet been executed is that he has had challenges pending in court to his
convictions and death sentence for the last thirty-four years, including his initial state post—
conviction proceeding, his first federal habeas action, and—later—timely proceedings based on
the ground that he is intellectually disabled, which were lodged in both state and federal court.
See State v. Pizzuto, 119 Idaho 742 (1991) (direct appeal and initial state post-conviction
proceeding); Pizzuto v. Arave, 280 F.3d 949 (9th Cir. 2002) (first federal habeas action); Pizzuto
v. State, 146 Idaho 720 (2008) (state case regarding intellectual disability); Pizzuto, 947 F.3d
510 (federal case regarding intellectual disability).
Over the course of that lengthy history of litigation, the State has taken numerous
extensions. While Mr. Pizzuto was litigating his intellectual-disability claim in federal court
5 Under the U.S. Supreme Court’s rules, Mr. Pizzuto will have 150 days from the denial of
rehearing to seek certiorari. Seehttps://www.supremecourt.gov/0rders/courtorders/O3l9202r dlo3.odf. The petition will bedistributed to the Justices for them to conference shortly thereafter. See Sup. Ct. R. 15.5. Thereis consequently a tightly circumscribed timetable for the certiorari process. See Joan Steinman,Postremoval Changes in the Party Structure ofDiversity Cases: The Old Law, The New Law,and Rule 19, 38 U. Kan. L. Rev. 863, 865 n.4 (1990) (“The average length oftimethat petitions for writs of certiorari remain pending is six weeks from filing or two to three weeksafter the brief in opposition to grant of the petition is filed”).
Reply in Support ofMotion t0 Stay Remittitur — 16
(which is the underlying claim presented here), the State sought and obtained at least twenty—six
separate enlargements of time, totaling 405 days—-far more than Mr. Pizzuto would need to take
his certiorari petition through thejudicial process. See Exs. 4—6.6 And that does not even
account for the deadlines the State prolonged in the various state cases or the first round of
federal habeas review.
With each due date it moved in this way, the State put off the day that Mr. Pizzuto’s
death sentence could be carried out. It did so because its interest in being fully heard on its
arguments outweighed its interest in a Speed-at—any-cost approach. The same calculus applies
now. Mr. Pizzuto’s interest in receiving thorough certiorari consideration ofhis claims
outweighs any interest in hastening the case to its end based on the artificially compressed
timeline created by the State’s desire to obtain a death warrant. Just as the State did in the
collateral cases challenging Mr. Pizzuto’s convictions and death sentence, all litigants require
time to research and craft pleadings to raise the arguments they are entitled to raise in court. The
State received such time in ample measure in the prior proceedings, and Mr. Pizzuto should be
afforded his modest allotment here so that he can obtain meaningful certiorari review ofhis
claims, as any party is entitled to do.
VIII. The Certiorari Petition Is Not Constrained By The Brief In Support Of Rehearing.
Lastly, the State seems to be under the misapprehension that Mr. Pizzuto’s certiorari
petition is confined to the issues he has presented in his rehearing brief. See Resp. at 6. Because
6 Exhibits 4 through 6 are the dockets from the federal intellectual-disability litigation in districtcourt and the Ninth Circuit respectively. The highlighted docket entries reflect the State’sextension requests and the orders granting them. To the extent it is necessary, Mr. Pizzuto
respectfully asks thatjudicial notice be taken of any filings made in other cases and referenced
here.
Reply in Support ofMotion to Stay Remittitur — 17
the rehearing brief is limited to the standard 0f review, the State reasons, the certiorari petition
will not contain a federal question warranting the U.S. Supreme Court’s review. See id. The
State is doubly off base. To begin, the State disregards an entire section of the rehearing brief
that directly addresses the federal constitutional question he plans to assert in his certiorari
petition. See Br. in Supp. of Pet. for Reh’ g, filed Apr. l9, 2021, at l3~l9. What is more, there is
no requirement that Mr. Pizzuto make his certiorari argument in his rehearing brief. The U.S.
Supreme Court does not obligate parties to seek rehearing at all. See U.S. Sup. Ct. R. 13.3
(adjusting the timeline for certiorari “ifa petition for rehearing is timely filed in the lower
court”). If there is no compulsion to move for rehearing, there is certainly no compulsion to
raise an argument then that was already fully preserved in the briefs and addressed by the lower
courts, as Mr. Pizzuto’s is. A contrary rule would make little sense. As in every other case, the
U.S. Supreme Court will review the reasoned opinion belowéwhether the original one or an
amended one—and directly reach the federal constitutional question at issue here.
IX. Conclusion
Summing up, Mr. Pizzuto’s claim was substantial enough to give the district court
“pause.” Pizzuto, 2021 WL 358204, at *12. It was substantial enough to elicit a twenty-two
page opinion from this Court. It is substantial enough to deserve the full certiorari time that
nearly every other case gets, especially since it involves a life—and-death question. In all events,
the papers point to a need for oral argument before the Motion is decided. Neither side has been
able to locate a binding precedent laying out the test to be applied when a party seeks to stay the
remittitur, which is—as the case at bar shows—«an important issue. The briefing on the matter
now totals thirty—seven pages and involves dozens of citations to authority and sixteen exhibits.
Reply in Support ofMotion to Stay Remittitur — 18
Oral argument should be held so the Court has the benefit of a robust adversarial process before
it answers the serious question presented here.
Dated this 28th day ofApril 2021.
/s/ Jonah J. HorwitzJonah J. HorwitzAttorney for Petitioner-Appellant
CERTIFICATE OF SERVICE
I hereby certify that on the 28th day ofApril 2021, l caused to be served a true andcorrect copy of the foregoing document by the method indicated below:
L. LaMont Anderson ____U.S. Mail
Deputy Attorney General___
Hand DeliveryChief, Capital Litigation Unit
__Facsimile
Statehouse Mail, Room 10 _ Federal ExpressPO Box 83720 ICourt file and serveBoise ID 83720-0010
/s/ Jonah J. HorwitzJonah J. HorwitzAttorney for Petitioner—Appellant
Reply in Support ofMotion t0 Stay Remittitur — 19
APPENDIX K
\Q
lN THE SUPREME COURT OF THE STATE OF IDAHO
GERALD ROSS PiZZUTO, JR, Order Denying Petition for Rehearing
Petitioner—Appellant. Supreme Court Docket No 477092020
v. ldaho County District Court No.CV»2003-34748
STATE OF IDAHO,
Respondent.
The Appellant having' filed a Petition for Rehearing on February 22. 2021. and
supporting brief on April 19, 2021. of the Court’s Published Opinion released February 03, 2021;
therefore, after due consideration,
H" is HEREBY ORDERED that Appellant's Petition for Rehearing be, and is hereby,
denied.
Dated April 29. 2021 . By Order of the Supreme Court
Melanie GagnepainClerk of the Courts
wmwefiwc
APPENDIX L
N THE SUPREME COURT OF THE STATE OF IDAHO
GERALD ROSS PIZZUTO, JR, Order Denying Motion to Stay Remittitur
Petitioner-Appellant, Supreme Court Docket No. 47709-2020
v. Idaho County District Court No.CV~2003-34748
STATE OF IDAHO.
Respondent.
1. A MOTION TO STAY REMITITTUR AND BRIEF IN SUPPORT was filed by counsel for Appellant
on April 22, 2021, requesting an order staying the remittitur in the abovewentitled matter
until certiorari proceedings conclude at the US. Supreme Court and requesting briefing and
oral argument on the issue.
2. A RESPONSE TO PETITIONER-APPELLANT’S MOTION TO STAY REIVII‘ITITUR was filed by
counsel for Respondent on April 26, 2021.
3. A REPLY IN SUPPORT OF MOTION TO STAY REIVIITTITUR was filed by counsel for Appellant
on April 28, 2021.
Therefore, after due consideration,
IT IS HEREBY ORDERED that Appellant’s MOTION TO STAY REMITITTUR and Request for Oral
Argument be, and are hereby, DENIED.
Dated 04/29/2021.
By Order of the Supreme Court
Wéwmrfilwawé%figMelanie GagnepainClerk of the Courts
APPENDIXM
\Sl
IN THE SUPREME COURT OF THE STATE OF IDAHO
GERALD ROSS PIZZUTO, JR., Remittitur
Petitioner—Appellant, Docket No, 47709-2020
v.'
Idaho County District CourtCV—2003—84748
STATE OF IDAHO,
Respondent.
TO: Second Judicial District, County of ldaho
The Court having announced its Opinion in this cause February 08, 2021, and having
denied Appellant’s Petition for Rehearing on April 29. 2021; therefore;
lT IS HEREBY ORDERED that the District Court shall forthwith comply with the directive
of the Opinion, if any action is required.
DatedzApril29,2021*
i , »
Melanie GagnepainClerk of the Courts
APPENDIX N
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT
OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF IDAHO
STATE OF IDAHO, ) CASE NO. CR—1985—22075
)Plaintiff, )
’
) DEATHWARRANTvs. ) ‘
)GERALD ROSS PIZZUTO, JR, )
)Defendant. )
)
TO: Josh Tewalt, Director, Idaho Department of Correction, and Tyrell Davis, Warden,
Idaho Maximum Security Institution:
WHEREAS, the above-named Defendant, GERALD ROSS PIZZUTO, JR., on the 27th
day ofMarch, 1986, was found guilty by a jury of two counts of First Degree Murder; and,
WHEREAS, on the 23rd day ofMay, 1986, the Honorable George Reinhardt entered his
Findings of the Court in Considering the Death Penalty Pursuant to the Provisions of 19-2515(e),'
Idaho Code, finding five aggravating factors under Idaho Code § 19-25‘15(t) (198A), and when
. weighed against each statutory aggravating factor individually, all mitigating circumstances were
not sufficiently compelling to make imposition of the death penalty unjust; and
DEATH WARRANT - J
WHEREAS, on the 27th day of May 1986, the Honorable George Reinhardt entered a
Judgment and Sentence sentencing the above named Defendant, GERALD ROSS PIZZUTO, JR.,to death for two counts of First Degree Murder; and
WHEREAS, on the 15th day of April 1988, the Honorable George Reinhardt entered an
order denying the above named defendant, GERALD ROSS PIZZUTO, JR, post—conviction relief; ,
and
WHEREAS, on the 15th day of January 1991, the Idaho Supreme Court issued its opinion
upholding the conviction and sentence and affirming denial of post-conviction relief, and issued
its Remittitur on the 5th day of June, 1991; and
WHEREAS, on the 2nd day of March 1992, the United States Supreme Court denied
certiorari for the above named defendant, GERALD ROSS PIZZUTO, JR., and
WHEREAS, all other requests for post—conviction and state collateral relief filed by the
above named defendant, GERALD ROSS PIZZUTO, IR., have been denied by the state district
court; and
WHEREAS, the Idaho Supreme Court has affirmed the denial of all other requests for
post-conviction and state collateral relief filed by the above named defendant, GERALD ROSS
PIZZUTO, JR.; and
WHEREAS, on the 7th day of April 1997, the Honorable Alan M. McDonald entered
Judgment denying the above named defendant, GERALD ROSS PIZZUTO, JR., federal habeas
relief; and
WHEREAS, on the 6th day of February 2002, the United States Court of Appeals, Ninth
Circuit, affirmed the denial of federal habeas relief; and
DEATH WARRANT ~ 2
WHEREAS, on the 315‘ day of Octoberv2005, the United States Supreme Court denied
certiorari for the above named defendant, GERALD ROSS PIZZUTO, JR., and
WHEREAS, all other requests for federal habeas filed by the above named defendant,
GERALD ROSS PIZZUTO, JR., have been denied by the Federal District of Idaho; and
WHEREAS, the United States Court ofAppeals, Ninth Circuit, has affirmed the denial of
all other requests for federal habeas relief; and
WHEREAS, Idaho Code § 19-2715(2) mandates thevstate to apply for a death warrant
from the district court in which the conviction was had after a sentence ofdeath has been affirmed
and the remittitur issued; and
WHEREAS, pursuant to Idaho Code § 19-2715(5) the Court has inquired and finds there
is an existing death sentence and that no valid stays of execution are currently in place; and
WHEREAS, Idaho Code § l9-2715(2) mandates that, upon such application, the district
court shall set a new execution date notmore than thirty (3O) days thereafter;
NOW THEREFORE, YOU ARE HEREBY COMMANDED, pursuant to Idaho Code
§ 19—27 1 6 and the Judgment of this Court, to receive said Defendant into your custody, and on the
2nd day of June, 2021, you shall cause the execution of said sentence of death to take place, unless
said sentence is stayed by law, and that you shall make a return upon this Death Warrant, showing
the time, mode and manner in which it was executed pursuant to Idaho Code § 19—2718.
DATED thisgdayor___?_,2021#:(tgDISTRIC
DEATH WARRANT - 3
APPENDIX O
Cage 1:20~.cv~OOll4-DCN DoeumentZZ FiledOG/ZS/ZO PagelonS
Samuel Richard RubinFEDERAL DEFENDERJonah J. Horwitz, Idaho Bar No. 10494Christopher M. Sanchez, New York Bar No. 5414099ASSISTANT FEDERAL DEFENDERSFederal Defender Services of Idaho702 W. Idaho Street, Suite 900Boise, ID 83702'I‘elephone: (208) 331—5530Facsimile: (208) 331~5559ECF: :Lqnahwlj'orndtzr?§l‘gfigg
Christopher M Sanchezfébtttorg
Stanley J. Panikowski(admitted pro hac vice)DLA PIPER LLP (US)401 B Street, Suite 1700San Diego, CA 92101~4297
Telephone: 619.699.2700Facsimile: 619.699.2701ECF: Stanlev.panil<owsl<itiildlaoioercom
Attorneysfor Plaintiffs
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF IDAHO
GERALD ROSS PIZZUTO, JR” and
THOMAS EUGENE CREECH,
Plaintiffs,
v.
JOSH TEWALT, et al.,
Defendants.
vvvvvvvvvvv
CASE NO. 1:20~cv-114-DCN
RESPONSE TO MOTION TODISMISS AMENDED COMPLAINT[1)KT. 21]
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT — Page 1
Case 1:20~cv~00114~DCN Document 22 FiledOG/ZS/ZO PageZotZS
The State‘s motion to dismiss, Dkt. 21, seeks to punish the plaintiffs for their diligence and
force the Court to adjudicate complex, lite—and-death matters on an unnecessarily last—minute
schedule. For those reasons, and the others that follow, the motion should be denied.1
Because the issues are so interrelated, the plaintiffs incorporate every section of this
response into every other section.
I. Legal Standards
When a motion to dismiss is brought under Rule 12(b)(1) for lack of standing, the court
must defer to the plaintiff’s factual allegations and “presume that general allegations embrace those
specific facts that are necessary to support the claim.” Young v. Crofts, 64 F. App’x 24, 25 (9th
Cir. 2003). “[A] 12(b)(l) motion to dismiss for lack of standing can only succeed if the plaintiff
has failed to make general factual allegations of injury resulting from the defendant’s conduct.”
[at2 The standard for dismissal under Rule 12(b)(1) is equally applicable to motions challenging
subject matter jurisdiction when such jurisdiction may be contingent on facts that are in dispute.
Roberts v. Corral/rem, 812 F.2d l 'l73, l 177 (9th Cir. 1987).
A motion to dismiss under Rule l2(b)(6) “tests the legal sufficiency of a claim.” Coo/c v.
Brewer, 637 F.3d l002, l004 (9th Cir. 201 l). “A claim may be dismissed only ifit appears beyond
doubt that the plaintiff can prove no set ot't‘acts in support of his claim which would entitle him to
relief.” Id. To survive dismissal, a complaint need only contain sufficient factual matter, accepted
' Because they have removed him from their Amended Complaint as a defendant, see Dkt. l8 at
l, the plaintiffs do not object to the State’s request that the Governor be dismissed from the
lawsuit, see Dkt. 21—1 at 5.
2 in this response, unless otherwise noted, all internal quotation marks and citations are omitted
and all emphasis is added.
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT _ Page 2
Case 1,1120vcv-V001.l4~DCN Document 22 Filed 06/25/20 Page 3 at 25
as true, that is plausible on its face. 10’. A claim is facially plausible when the facts pled allow the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.
II. The Claims Are Ripe
The State resists the claims on ripeness grounds, suggesting that the Court should allow
the Idaho Department of Correction (“lDOC”) to follow its usual practice and compress all of the
difficult, high—stakes litigation rcgardin g the plaintiffs’ executions into a thirty—day period so as to
stack the deck against relief. Dkt. 21—1 at 5~7. Other than making things more convenient for
IDOC, the defendants’ suggestion has no merit.
As a preliminary matter, the fundamental premise of the State’s ripeness theory-~that an
inmate has no standing to challenge his execution until it is scheduledwis mistaken. The State
offers no precedent on the subject and well-reasoned authority is squarely inconsistent with its
approach. See Chester v. Beard, 657157. Supp. 2d 534, 538 (MD. Pa. 2009) (denying a motion to
dismiss a lethal~inj ection complaint on standing grounds where a death warrant had not yet issued).
The State’s current view of ripeness is also notably at odds with its historic position. In
the most recent execution litigation in Idaho before the present case, the State opposed a stay of
execution when the lawsuit was brought “two months prior” to the date set in the death warrant
for the very reason that it was supposedly done at “the last minute.” Creech v. Rein/(e, 1). Idaho,
No. 12-173, Dkt. 22 at 22. Put another way, the State’s view is that an execution challenge is
always either too early or too late. which cannot be the law.
The State’s “heads—lwwin-tails-you-lose” characterization of standing is especially
problematic when wielded against the plaintiffs” claims. Whatever might be said in favor ol’a rule
rendering any substantive challenges to an execution protocol premature before a death warrant,
bu! see Chester, 657 F. Supp. 2d at 538, such a rule makes no sense when applied to the plaintiffs’
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT — Page 3
Case 1:20—cv~OO:t:L4wiT)CN Document 2?. PiledOS/ZS/ZO Pagelloiizs
Amended Complaint, which is based on the very fact that they have no protocol to challenge. The
harm alleged in a substantive challenge arguably does not occur until the unconstitutional
execution takes place. By contrast, the injury inflicted on the plaintiffs by the defendants’ refusal
to supply them with any meaningful information about how they will be executed is taking place
as we speak. It is now that the plaintiffs are unable to assess the State’s plans for an execution,
contest any aspect of those plans they believe to be unconstitutional, and raise their claims in court.
See McGehee v. Hutchinson, --- F. Supp. 3d --~~, 2020 WL 284l589, at *46 (ED. Ark. 2020)
(finding standing because an aceess—to—court claim alleged an injury based on the plaintiffs’
inability to seek redress for a prospective execution-related constitutional violation). In that sense,
to dismiss the claims for lack of standing would perpetuate the precise harm the Amended
Complaint is founded on, as it would create an artificially compressed timeline for execution
litigation and prevent the Court from engaging in the searching review that is warranted in a capital
case.
Even setting aside that conceptual flaw at the heart of the State’s motion to dismiss, its
description of the facts at issue is still inaccurate. First, the State asserts it is unduly speculative
for the parties and the Court to prepare for Mr. Pizzuto’s execution .now because he has pending a
certiorari petition at the US. Supreme Court and a post—conviction proceeding at the Idaho
Supreme Court. Certiorari petitions are denied approximately 99% of the time, see Dkt. 18 at 20,
and the Idaho Supreme Court has already rejected Mr. Pizzuto’s .intellectual-disability claim once,
see P11222110 'v. State, 202 P.3d 642 (Idaho 2008). While Mr. Pizzuto will continue to vigorously
pursue those cases, the reality is that the odds are against him, and there is no cause for the Court
to close its eyes to the likelihood of an execution until the month it is happening.
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT — Page 4
Case 1:20-cv-OOLL1.4~DCN Document 22 Filed 06/25/20 Page 5 of 25
Next, the State disparagingly refers to the plaintiffs’ “presumption” that IDOC will amend
its protocol before- an execution takes place.3 Dkt. 2l-l at 6. The Amended Complaint alleges
that IDOC itself told undersigned counsel as much. See Dkt. 18 at 8. As with the State’s motion
to dismiss generally, the averments in the Amended Complaint must be accepted as true for
purposes of its ripeness challenge under Federal Rule of Civil Procedure l.2(b)(6). See Carson
Harbor Vill. v. City Q/Carson, 353 F.3d 824, 826 (9th Cir. 2004). Unless the State is encouraging
the Court to assume that IDOC was being dishonest with the plaintiffs, its intention to revise the
protocol prior to the next execution is at this stage a fact, not a presumption.
Further, while disclairning their own promises to the plaintiffs about issuing a new protocol
before an execution, lDOC continues to defend its right to do so, describing this last—minute
approach as “practical” and “efficient.” Dkt. 21-1 at 12. In other words, the defendants” apparent
belief is that the plaintiffs should challenge a protocol that the State itself has said will be
superseded and then, after that lengthy and time-consuming litigation, lDOC will still replace the
protocol a month before an execution. To let IDOC have its cake and eat it too in that way might
be “practical” and “efficient” for the defendants, because it would relieve them of any obligation
to meaningfully defend the constitutionality of their execution plans. But it is not practical and
efficient for anyone else.
Moreover, even i'fone were to assume that IIDOC’s promise to change the protocol before
the next execution was false, the claims would still be ripe, The current protocol does not tie IDOC
down to the use of any particular drug and gives the Director unfettered discretion to change it at
3 Some of the State’s arguments about speculativeness reappear in its section on whether the
plaintiffs adequately pied their Amended Complaint, in addition to its section on standing. See
Dl<t. 2l—l, at lO~13. For economy’s sake, the plaintiffs address all such arguments here, and they
should be understood as going to both standing and the pleading standards,
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT - Page 5
Case 1:20~cv~00114~DCN Document22 FiledOG/ZE/ZO PageGonEi
will. See Dkt. 18 at 8, 64. "Thus, if the current protocol were to continue to be in effect in any
meaningful way, the plaintiffs’ injury from the deprivation of information would remain live.
The State reads the Amended Complaint as assuming that no protocol will be in place
before a death warrant is issued. Dkt. 21—1. at 6. There is no such statement in the Amended
Complaint. The problem is rather that there will not be enough time to adequately litigate the
contents of the protocol before an execution takes place. As noted earlier, that problem already
exists. And it will be exacerbated if IDOC follows its past practice, which includes—for
example———announcing the drug to be used in the Leavitt execution eighteen days before it took
place, and announcing new protocols shortly before both of the two most recent executions. See
Dkt. 18 at 11, 21. [DOC cannot seriously criticize the plaintiffs for “assuming” that it will behave
similarly now to how it did the last time it executed someone. See West v. Brewer, No. 2:1 l-cv—
1409, 2011 WL 2912699, at *4 (D. Ariz. July 20, 2011) (considering a correctional department’s
past execution practices in denying a motion to dismiss for failure to state a claim). It would be
improper to assume that [DOC will behave any differently this time around, especially when all
inferences must be drawn in the ‘plaintiffs’ favor.
Although the current protocol is a nullity, since the defendants will be modifying it before
another execution occurs, the plaintiffs nevertheless dispute the State’s depiction of that document
as “judicially approved.” Dkt. 21~1 at 6. The decision addressing that protocol concerned a request
to stay an execution and administrative exhaustion—it was not an opinion on the merits of the
underlying constitutional challenge. See Creech v. Rein/(e, D. Idaho, No. 1.:1.2—cv~l73, 2012 WL
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT —~ Page 6
Case .t:20~cv~00:l.:1.4~DCN [Document 22 Filed 06/25/20 Page 7 of 25
l995085 (D. Idaho June 4, 2012) (Creech 1).4 Of equal importance, the order was rendered under
the extreme time constraints occasioned by the State’s practice of waiting until the last minute to
reveal its execution planswthe very practice under attack in the case at hand. Sic id. at 2~3. The
plaintiffs here might well formulate other claims that were not asserted before if they are afforded
the notice that IDOC failed to give Mr. Leavitt. In fact, the health-based claims that the plaintiffs
need to explore in the instant case, see Dkt. 18 at 41—47, were by definition unavailable to Mr.
Leavitt, and the current protocol is irrelevant for that reason as well.
Taking a similar tack, the State maintains that this Court has already approved of IDOC’S
penchant for revealing its execution plans at the eleventh hour. See Dkt. 21 -1 at 6. However, the
cited decision did not involve a challenge to such revelations-~---~it dealt with a substantive attack
on the protocol itself. See Rhoadcs v. Rein/re, 830 I". Supp. 2d 1046, 1067 (D. Idaho), 417%], 67]
F.3d 856 (9th Cir. 201 1). And even then, the Court went out of its way to mention twice that it
was “troubled” by the unnecessarily abridged timeline that IDOC had created, id. at 1058—59, 1067,
a concern that is now—for the first time—the focus of the litigation.
The State posits that the plaintiffs’ request to enjoin their execution is unavailable, because
no warrant has yet issued. See Dkt. 21-1 at 6. Preliminariiy, the prayer for such an injunction is
only one of the remedies sought by the plaintiffs. The most rudimentary form of reliefwould be
to simply order the defendants to disclose to the plaintiffs the information they desire. See Dkt.
18 at 65. That relief is obtainable now under any View, regardless ofwhether a warrant exists, so
there is no basis to dismiss the Amended Complaint. And in any event, the State has no authority
4‘ In addition, a district court order does not enjoy the force ofbinding precedent, even in the
tribunal that issued it. See Kassie)" v. Assocs. Fin. Servs. (70., 573 F.2d 577, 579 (9th Cir. 1977).
The plaintiffs also note that Mr. Pizzuto was not a party in Creech I.
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT w Page 7
Case 1:20«cv~00114~DCN Document 22 Filed 06/25/20 Page 8 of 25
for the proposition that a court is powerless to enjoin an execution just because a warrant has not
been filed. The precedent is to the contrary. See, eg, United Suites v. Lee, ~-- F.3d -~~—, 2020 WL
28321l8, at *1 (8th Cir. 2020) (declining to dismiss an appeal as moot on the ground that the
scheduled date has passed because the order staying the execution forbade the government from
choosing a new date). There is nothing prohibiting the Court from ordering the State to forego
seeking a death warrant in the first place.
Finally, the State’s View of standing would make execution litigation highly impractical.
Take just one example. As observed earlier, the State declared its intention to use pentobarbital in
the Leavitt execution eighteen days before ending his life with the drug. if the State‘s articulation
of standing in its motion to dismiss is correct, [DOC would again be entitled to advise Mr. Pizzuto
of the cocktail it has in mind for his execution within threeweeks of the event. Then, with eighteen
days before Mr. Pizzuto’s scheduled death, undersigned counsel would have to consult with
several experts about whether the drug is appropriate for executions and about whether it might
cause complications in particular for Mr. Pizzuto, who is on hospice with bladder cancer and
diabetes and has taken more than forty-two medications over the last year. See Dkt. 18 at A(1-47;
see also McGehee, 2020 WI; 284i 589, at *4—28 (describing the experts who testified at a lethal~
injection bench trial, which included an anesthesiologist, a pharmacologist, a pathologist, at
toxicologist, and experts on gunshot wounds and end-of-life care), After that, [DOC expects Mr,
Pizzuto to exhaust any claims within the prison system, and for his counsel to then draft and file
an Amended Complaint and litigate it through three levels of the federal judiciary, with whatever
proceedings and hearings that entails. The prospect that all of that could happen in any case in
eighteen days is fantastical, let alone in a death penalty matter. Simply put, if embraced by the
Court, IDOC’s approach to ripeness means that the plaintiffs will be completely unable to
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Case1:20~cv~00:l.l4«D(3N Document 22 Filed 06/25/20 Pagegot25
meaningfully contest any aspect ot‘their executions. The rights that they have in connection with
their executions then become a dead letter.
Even the defendants do not truly disagree. The message of their motion is rather that such
litigation can be skipped, because iDOC promises to “provide for the safeguards” required by law.
Dkt. 2i-l at 7. Needless to say, this ‘fiiust-trust-us” model is not how litigation works. The
plaintiffs are not required to defer to theiudgment of‘the agents who are actively attempting to end
their lives They have a constitutional right to independently ensure that their executions are
lawfully carried out. Accepting the allegations in the Amended Complaint as true, as the Court
must, .IDOC tried to obtain lethal chemicals from an unqualified salesman in india and later
purchased drugs for an execution with a suitcase full of cash in at Walmart parking lot. See Dkt.
l8 at l l-12, 24—25. It must also be accepted as true that executions around the country have been
botched, leading to torturous deaths, See, (-2.g., id. at 37-38. Under such circumstances, it would
be especially inappropriate to follow the State’s advice and allow IDOC unfettered discretion in
this most sensitive area, thereby increasing the likelihood of an inhumane execution.
III. Dismissal On Exhaustion Grounds Is Inappropriate
The State attempts to have most of the claims dismissed on exhaustion grounds, see Dkt.
21—1 at 740, but doing so is entirely unnecessary because there is no dispute that i‘DOC is
unwilling to provide a remedy for the plaintiff‘s’ complaints.
A. Exhaustion Arguments Pertaining To Both Plaintiffs
The plaintiffs begin with the exhaustion arguments that apply to both plaintiffs.
1. Exhaustion Does Not Apply To This Lethal Injection Claim
The State cites to Creech 1 for the proposition that prisoner lethal injection challenges are
subject to the exhaustion requirements of the Prison Litigation Reform Act of '1995 (“PLRA”), 42
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Case fl..:20~ev-00114~DCN Document 22 FiledOG/ZS/ZO Page 10 ot25
U.S.C. § 1997 er seq, but that case is not binding. See Dkt. 2.1—1 at 7. Creech [and other cases
subjecting lethal injection challenges to the PLRA are also fundamentally at odds with the statute’s
plain language limiting the administrative exhaustion mandate to actions concerning “prison
conditions,” which is clearly different from actions concerning executions. See 42 U.S.C.
§ l997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted”). Further, even if the
PLRA reached such challenges, courts have found exhaustion unnecessary where there is no
indication in the record that grievance procedures would be productive in addressing issues related
to execution protocol. See Mum/7y v. Collier, 423 F, Supp. 3d 355, 359 n.1 (SD. Tex. 20l9),
motion to vacate order denied, 942 F.3d 704 (5th Cir. 20'l9). In Murphy, similar to this case,
counsel for the prisoner had previously communicated concerns about the execution protocol to
counsel for the relevant state correctional agency to no avail. Id. The court rejected the state’s
Pl__,RA-based arguments, finding “[tlhere is no indication in the record that filing a prison grievance
for review by a warden and then administrative staff would be productive when they have no
ability to change "I“DCJ execution protocol.” Id. Similarly, there is no indication here that lDOC’s
grievance process could effectively address the plaintiffs’ concerns about execution protocols. The
State bears the burden of establishing lack of exhaustion as an affirmative defense, see Jones v.
Back, 549 US. 199, 206 (2007), and that burden has not been met.5
5 Likewise, although the plaintiffs have pled some of their efforts to exhaust IDOC procedures in
the Amended Complaint, demonstrating exhaustion in that pleading is not required. See Jones,549 US. at 206. Accordingly, the State’s argument that the plaintiffs’ allegations concerningexhaustion are unsupported and/or insufficient, Dkt. 21-1 at 8, incorrectly shifts the burden to the
plaintiffs on this issue.
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Case 1:20wcv-00114VDCN Document 22 Filed 06/25/20 Page 11 of 25
2. Exhaustion Is Not Required Because Administrative Remedies Are UnavailableTo The Plaintiffs Given The Specific Circumstances Of The Case
A plaintiff is compelled to exhaust only those administrative remedies that are “available.”
See Ross v. Blake, 136 S. Ct. l850, 1858 (2016). The exception is satisfied when an inmate has
“been reliably informed by an administrator that no remedies are available,” Brown v. Valojf 422
_1-'i,3d 926, 935 (9th Cir. 2005), even when one exists as a technical matter “on the books,” Fuqim
v. Ryan, 890 F.3d 838, 849 (9th Cir. 2018). Taking the Amended Complaint’s allegations as true,
as the Court must, .lDOC officials were approached directly by undersigned counsel, engaged with
them on their requests, and ultimately refused to provide them with the information the plaintiffs
are seeking about their executions. See Dkt. 18 at 10—1 1. Effectively, then, 1100C has informed
the plaintiffs that no remedy is available, and exhaustion is excused.
3. The Language In The Administrative Grievance Forms Sufficieutly Addressed AllClaims It Was Required To Address
Applying a hypertechnical understanding of exhaustion that is inconsistent with the
governing law, the State submits that the language used by the plaintiffs in their grievance forms
encompassed only Claim One. See Dkt. 21 —1 at 8~9, The only reasoning provided by the State is
that the forms did not refer to ldaho’s execution protocol. See id. What the State misunderstands
is the legal significance of the protocol to the plaintiffs’ claims, which is that it provides them the
information they are seeking and have been unconstitutionally denied. It is that denial of
information that underlies all of the claims except the separation~of—powers issue, which is
addressed below. See Dkt. 18 at 50—65. The protocol is simply the vehicle for delivering the
information. And the grievance forms undeniably complained about the lack ofinforma‘tion. See
Dkt. 17—5, in so doing, the plaintiffs presented to the prison their “core concerns or problems,”
such that lDOC could “understand the nature of the complaint and have an opportunity to fix it,”
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Case 1:20~cv~00114»DCN Document 22 Filed 06/25/20 Page 12 of 25
and that is all the exhaustion rule demands. Spaude v. Corr. Corp. (if/1112., No. 1:10—cv-551, 201 l
WL 5038922, at *3~5 (D. Idaho Oct. 21, 2011) (relying on Griffin v. Arpaio, 557 F.3d 1117 (9th
Cir. 2009)).
Given the tight restrictions placed by IDOC on grievances, it would be especially
inequitable to find that the plaintiffs did not lay out their issues in enough detailr State inmates in
Idaho must handwrite their complaint on seven lines—they are forbidden from attaching a
document, having an attorney type out their concern, or even writing, on the opposite side of the
sheet, See Dkt. 17-3 at 7, 20. The plaintiffs complied with all of those strict requirements, and
their concern forms were filled out with necessarily concise language as a result. See Dkt. 17—5.
"there was no room left to elaborate on the point the defendants now emphasize Consider how
much space it takes to even identify the full protocol: “Standard Operating Procedure
1350100] .001, v.36, adopted May 1 8, .1998, reviewed January 6, 2012.” That is a full line in this
typewritten document, and would consume far more space in ink on IDOC’s highly constricted
forms.
1DOC needlessly chose to rigidly circumscribe the grievance process. See Fr'eenmn v.
Julious, No. l :09-cv-2245, 2011 WL 1748580, at *2 (ED. Cal. May 6, 2011) (describing a prison
system which permits inmates to attach a page to their grievance). To fault the plaintiffs for not
including additional explanation ofhow IDOC should provide them with the information they seek
(i.e., through a protocol) would be to punish them for obeying unnecessarily strict rules the
defendants themselves have imposed on the process, which is impermissible. See Nunez v.
Duncan, 591 F.3d .1217, 1225—26 (9th Cir. 2010) (excusing exhaustion because the inmate’s
efforts to grieve the issue were “stymied” by the prison’s conduct).
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Case 1:220~cv-001M«DCN Document 22 Filed 06/25/20 Page 13 of 255
4. Exhaustion Was Unnecessary For The Separation-OfwPowers Claim
The State contends that the separation-of~powers issue (Claim Seven) is barred as
uncxhausted, see Dkt. 21-1 at 9-210, overlooking the fact that the defendants are powerless to
redress the problem.
As set forth earlier, the plaintiffs need only exhaust those claims that are “available.” See
supra at Part lll.A.2. In other words, for the exhaustion requirement to apply, there must be “the
possibility of some relief." within the prison system “for the action complained of.” Boo/17 v.
Clmrner, 532 US. 532 US. 731, 738—39 (2001). The violation identified by Claim Seven is an
inadequate amount of legislative guidance for IDOC in connection with executions. See Dkt. 18
at 61-——64. As such, the remedy is for the legislature to provide that oversight. See, e.g., il/[islrena
v. United States, 488 US. 361, 372 (1989) (describing how a claim of this sort is based on the
legislature is failure to provide sufficient standards to an agency for the discharge of its duties).
The prison administrators tasked with responding to inmate grievances could not provide that
remedy, as they are not lawmakers. .lt follows that the plaintiffs had no obligation to pursue the
separation-of—powers claim through the grievance process. See White v. Bukowski, 800 F.3d 392,
395 (7th Cir. 2015) (Posner, .1.) (“[H'Ziow could a prisoner be expected to file a grievance that would
be academic because no response would benefit him or her in the slightest?”); Williams v. City of
13mm, 270 F.R..D. 208, 222 (ED. Pa. 2010) (excusing the exhaustion requirement for an
overcrowding complaint because the problem could not be solved by the defendants).
B. Exhaustion Arguments Pertaining To Mr. C recch
The plaintiffs now turn to the exhaustion arguments involving Mr. Creech in particular.
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Case .l.:20«cv~00114~DCN Document 22 Filed 06/25/20 Page 14 of 2.5
1. Administrative Remedies Are Unavailable To Mr. Creech
To begin, it would not make sense to dismiss any of Mr. Creech’s claims for lack of
exhaustion when his co—plaintiff took the exact same issues all the way through the grievance
process and was granted no relief. An administrative remedy is deemed unavailable, thereby
excusing exhaustion, when a grievance would be a “dead end” because prison authorities are
unable or unwilling to provide the type of relief at issue. Ross, 136 S. Ct. at 1859. Since Mr.
Pizzuto’s identical complaint was rejected, it would have been a “dead end” for Mr. Creech to go
through the academic exercise of eliciting the same denial, and the exhaustion requirement does
not apply. Bram v. Reddish, No. 3:13wcv—4l2, 2019 WL 4600366, at *14—15 (MD. Fla. Sept. 23,
2019) (excuslng exhaustion because the prison consistently refused to provide relief on inmates”
execution—related claims in the grievance process). The purpose of the exhaustion requirement is
to give prison authorities the chance to resolve the issue before the inmate heads to cou1t. See
Woodford v. Ngo, 548 U.S. 81, 93 (2006). [DOC had that opportunity here, with Mr. Pizzuto’s
submissions, and it elected not to provide the information he desired. No reasonable goal would
be served by preventing Mr. Creech from litigating these important issuesjust because he did not
elicit the same final denial that everyone involved knows he would have received. Any lack of
exhaustion should be forgiven.
2. Mr. Creech Adequately Pursued Exhaustion
If the Court nonetheless applies the exhaustion requirements to Mr. Creech, his claims still
should not be dismissed. Although the State challenges Mr. Creech’s claims on the ground that
he did not complete the grievance process, see Did. 21 ~i at 8, there is a dispute ofmaterial fact on
the question that precludes summary dismissal.
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CaselzZO-cwOOLtlttDCN Document 22. Filed 06/25/20 Page 1.5 ot25
As an initial matter, the State has used the wrong procedural vehicle for its attack. When
prison officials resort to material beyond the pleadings and public records, their exhaustion theory
is properly lodged in a motion for summaryjudgment, not in a motion to dismiss. See, e.g., Cherry
v. Shedd, No. 3:l.0~cv—27l, 20l5 WI... 77402, at *l (D. Idaho Jan. 6, 2015) (citing Albino v. Baca,
747 F.3d 1 162, l 171 (9th Cir. 2014) (en banc)). The defendants here rely on a declaration by a
grievance coordinator. See .Dkt. 2l»l at 8. 'lf‘herei’ore, they should have filed a motion for summary
judgment, rather than a motion to dismiss, as [DOC officials routinely do in similar situations.
Sec, 6.5;, Cherry, 2015 WL 77402, at *1. As a result, the Court should reject the State’s argument
on that basis alone, and order the defendants to file a motion for summary judgment if they wish
to pursue one. See Jonas v. Rein/ca, No. 4:]2-cv—25l, 20l3 WL 3965312, at *3 (ID. Idaho Aug. 1,
2013).
l'--'lowever, even ifthe substance of the State’s point is considered at this stage, dismissal is
still unwarranted. As noted, when an exhaustion argument brings in material from outside the
pleadings and the public records, it is appropriately taken up as a matter of summary judgment.
See Cherry, 201 5 WL 77402, at *l . Summary judgment cannot be granted when there is a disputed
issue of material fact, reviewing the record in the light most favorable to the non—moving party.
See Goodrick v. Roam. No. 3:05—cv—094, 2007 WL 853980, at *2 (D. ldaho Mar. 19, 2007).
Attached to this response is a declaration from Mr. Creech, in which he attests under oath that he
did in fact submit a grievance after the prison denied his concern form, see. Ex. 1, contrary to the
defendants’ assertion, see Dkt. '1 7-2 at 4. Mr. Creech further avers that the prison never responded
to his grievance. See Ex. l. The prison’s complaint process lacks any provision allowing an
inmate to file an appeal when the institution has not addressed the grievance. See generally Dkt.
17-3. Under those circumstances, an inmate who puts in a grievance and gets no response has
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Case 1:20~CV«00114-DCN Document 22 Filed 06/25/20 Page 16 of 25
exhausted his claim, Hoak v. Smith, No. 1:08-cv—402, 2009 WL 3806336, at *9 (D. Idaho Nov. 9,
2009), or need not do so because remedies are unavailable, see Foul/t: v. Charrier, 262 F.3d 687,
698 (8th Cir. 2001). Because there is a dispute over what Mr. Creech did to exhaust his claims,
his claims cannot be summarily dismissed. it the Court does not rebuff the State’s exhaustion
defense for other reasons, an evidentiary hearing is called for. See Goodric/c v. Field, No. 1:17—
cv—265, 2020 WL 1948840, at *6 (D. ldaho Apr. 22, 2020) (ordering an evidentiary hearing on
exhaustion where the inmate maintained that he had submitted a grievance and the defendants’
records reflected otherwise).
IV. The Plaintiffs Have Sufficiently Pied Their Claims
‘l‘urning to the sufficiency of the Amended Complaint’s allegations, the plaintiffs
adequately pled their claims under Rules 8 and 12(b)(6), notwithstanding the State’s conclusory
arguments to the contrary.
A. The Claims Based On A Right To Information (Claims 1, 2, 4)
The plaintiffs have alleged sufficient facts to support their claims based on a right to
information. First Amemr’mem Coalition ofAriz., Inc. v. Ryan, the only authority on which the
defendants rely in attempting to defeat Claims One, Two, and Four, does not prevent the plaintiffs
from seeking the information enumerated in paragraphs 498, 519, and 529 of the Amended
Complaint. See Dkt. 18 at 50—51, 54, 55. in First Amendment Coalition, the Ninth Circuit
expressed concern with the lack of detailed information provided to the plaintiffs regarding
execution drugs and personnel given Arizona’s checkered past with executions. First Am. Coal.
of/lriz., Inc. v. Ryan, 938 F.3d 1069, 1080 (9th Cir. 2019). The court stated that such information
would undoubtedly aid the public and death-row inmates in monitoring the constitutionality of
Arizona’s execution proceedings. In’. Similar to Arizona, ldaho has a troubling execution history,
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Case 1:20~cv~001:t4—DCN Docurnent22 Filed 06/25/20 Page 17 of 2.5
which, as set forth in the Amended Complaint, includes pursuing lethal injection drugs in an
irresponsible manner and obfuscating its plans in order to frustrate legitimate litigation and public
scrutiny. See Dkt. l8 at 11—31.
Immediately after voicing concerns with Arizona’s execution history and obfuscation of
information, the Ninth Circuit made clear that inmates are not precluded from asserting a
procedural due process right to obtain information regarding execution drugs and execution team
members. First/1117. Coal. (if/iriz., Inc, 938 F.3d, at 1080. Consistent with First Amendment
Coalition, the plaintiffs’ fourth cause of action seeks execution»rclatcd information on due process
grounds. Such a claim is in no way precluded by First Amendment Coalition and should not be
dismissed.6
B. Absence 0f Protocol As Eighth Amendment Violation (Claim 3)
The plaintiffs have also adequately pled an Eighth Amendment claim. Claim Three alleges
that the defendants have subjected the plaintiffs to cruel and unusual punishment by deliberately
keeping them in the dark about how their executions will be carried out until shortly before they
occur, thereby increasing their mental anguish. See Dkt. 1.8 at 5446. The State’s first response
is that the claim cannot survive in the event the others are dismissed, becausem—on the defendants’
reasoning—”if there is no absolute right to access the information, there can be no right to avoid
suffering from its concealment. See Dkt. 21-] at 15. But different clauses in the Constitution are
not interchangeable. See First Am. Coal, 938 F.3d at 1084—85 (Bel-zen, J}, concurring in part,
dissenting in part) (explaining that a procedural due process challenge to execution secrecy would
6 To the extent First Amendment Coalition bars any claims, the plaintiffs assert them for
preservation purposes so that they can challenge the precedent on appeal, including before the en
banc Ninth Circuit and the Supreme Court.
RESPONSE "YO MOTION TO DIS'MZISS AMENDED COMPLAINT — Page 17
Case .t:20~cv~00114~DCN Document 22 Filed 06/25/20 Page 18 01‘25
have been more compelling than the First Amendment claim that was made); see also Pavatl v.
Jones, No. 5:lO~cv-l4l, 20l0 WL 7609469, at *3 (W.D. Okla. May 6, 20l0) (rebufl‘ing an
argument in a Rule l2(b)(6) motion in an execution case that a substantive due process claim
should be dismissed because the issue was covered by the Eighth Amendment). The State’s
argument is therefore specious.
Painting with an equally overbroad brush, the State insists that because there is always
some distress occasioned by a death sentence, the amount ofsuffering inflicted on the plaintiffs by
lfDOC’s obfuscation must be constitutionally acceptable. See Dkt. 214i at i5—16. That would of
course give the defendants cart blanche to visit upon the defendants as much pain as they wish,
which is not the law. The Eighth Amendment prohibits excessively “cruel” punishment, and that
is always in part a matter of degree. i. ea Hudson v, McMiUian, 503 US. l, 7 (1992) (describing
how “the extent of injury” is relevant when a prisoner asserts an Eighth Amendment violation).
Just because the death penalty implies some suffering does not mean it allows for unbounded
suffering, and there is no basis to dismiss this claim at the pleading stage.
invoking an inapposite body of law, the State faults the plaintiffs for not proposing “an
alternative method of execution.” Dkt. 2 l -l at 16. Such an obligation only exists, naturally, when
inmates are challenging a method of execution, as in the defendant's’ cited case. See Bucklew v.
Precyi/w, 139 S. Ct. 1112, ll25 (2019). The plaintiffs here are not attacking the State’s plans for
how it will execute them, because the defendants refuse to tell them those plans, which is the very
violation at issue. For the plaintiffs’ claim, the “alternative” they are offering is one that actually
addresses the problem: for lDOC to give them the information they need to ensure the
constitutionality of their executions. Nothing more is required for them to state a claim.
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Case 1:20«cv—00114~«DCN Document 22 Filed 06/25/20 Page 19 of 25
C. Equal Protection (Claim 5)
The Amended Complaint also states an equal protection claim. in Claim Five, the plaintiffs
assert that each of them has been singled out arbitrarily and irrationally as a class of one and will
therefore not be afforded equal protection due to the lack of procedural safeguards stemming from
the defendants’ effectively non—existent written execution protocol. See Dkt. 18 at 58—59. While
the State points to the Ninth Circuit’s opinion in '1''owery v. Brewer to support its argument that
this claim should be dismissed, the Towel-y court recognized that equal protection challenges to
execution protocols could be viable if a pattern of treating individual prisoners differently and
detrimentally could be demonstrated. 672 F.3d 650, 660—61 (9th. Cir. 2012) (recognizing that
equal protection claims have successfully gone forward where “plaintiffs were able to show an
actual pattern oftrcating prisoners differently in ways that did affect the risk of pain to which they
would be subjected, and therefore the risk of being subjected to cruel and unusual punishment”)
(citing In re Ohio Execution Protocol Litig, 840 F. Supp. 2d 1044 (SD. Ohio 2012) (emphasis in
original)). Past evidence of deviation with respect to a single execution, coupled with uncertain
protocols, is enough to allow an equal protection claim to go forward. See Arthur v. Than-ms, 674
F.3d 1257, 1263 (l lth Cir. 2012) (recognizing that in light ofplaintift‘s allegation ofa failure to
perform a consciousness check in a recent execution, coupled with “other allegations regarding
the veil of secrecy that surrounds [the State’s] execution protocol, it is certainly not speculative
and indeed plausible that [the State] will disparately treat [the plaintiff} because the protocol is not
certain and could be unexpectedly changed for his execution”).
Here, the plaintiffs have alleged significant misconduct with respect to 'lDOC’s prior
executions of Paul Rhoades and Richard leavitt, including obtaining execution drugs from illegal
and/or high risk sources, improper storage of execution drugs, maintaining separate books for
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Case 1:20~cv~00114~DCN Document 22 Filed 06/25/20 Page 20 ont";
execution-related expenses, failure to conduct autopsies, and last-minute changes to execution
protocols rendering prior challenges to l'DOC’s protocols nearly impossible. Dkt. 18 at ll—29.
The Amended Complaint also alleges that I‘DOC engaged in an overall pattern of mishandling
record requests and health—related issues. Id. at 29~3l. In short, the Amended Complaint contains
ample factual support for the claim that IDOC will treat: the plaintiffs disparately and that this
disparate treatment will place them at risk of being subjected to cruel and unusual punishment.
Accordingly, the plaintiffs have adequately stated a claim for a violation of their equal protection
rights.
D. Assistance Of Counsel (Claim 6)
In Claim Six, the plaintiffs assert that their right to the assistance of counsel in their
clemency proceedings under 18 U.S,C. § 35.99 is being violated because the defendants will not
supply them information about their executions that they would be able to use in seeking relief
from the state’s executive branch. See Dkt. 18 at 59-61. IDOC’s only argument for dismissing
the claim is to cite two cases, one distinguishable and the other non-precedential. See Dkt. 21 ~l at
17—18. In the first, the Ninth Circuit addressed § 3599 in two sentences ofa per curiam opinion
issued four days before the appellant’s execution. See Leavitl v. Arave, 682 F.3d .1 I38, 114] (9th
Cir. 2012) (per curiam). The court declined to direct a police department to provide blood samples
for testing because, in its judgment, §3599 did not authorize the court to order “third-party
compliance” with a clemency investigation. See id. But unlike Leavitl, the case at bar does not
involve a third party. The defendants in this action are the officials capable of supplying the
plaintiffs with the information they seek. In addition, the type of material at issue in Leaviltm
blood samples at a police departmentwis of the sort that inmates can and do pursue in habeas
discovery. See, e.g.,1l/[cGib0neyv. Yordy, No. l:l6—cv—I50, 2017 WL 415936], at *l() (D. Idaho
RESPONSE TO MOTION TO DISMISS AMENDED COMPLAINT - Page 20
Case 1:20~cv»001.14«DCN Document 22 Filed 06/25/20 Page 21 of 25
Sept. 19, 201.7). in contrast, there are typically no cognizahle claims in haheas relating to how a
state intends to carry out an execution. See Floyd v. Filson, 949 F.3d 1 128, ‘l 152 (9th Cir. 2020).
Mr. Leavitt accordingly had an alternative available to him that the plaintiffs in the present action
do not. Whatever reasons there were to limit § 3599 in Leavitt, they do not apply here, and the
case does not foreclose this claim at the Rule 12(h)(6) stage.
The defendants’ other citation, Baze v. Parker, 632 F.3d 338 (6th Cir. 201 1), is more on
point. l-lowever, the Ninth and Sixth Circuits expressly disagree with one another on their
interpretation of the proper scope of § 3599, see Samayoa v. Davis, 928 F.3d 1127, 1 130-31 (9th
Cir. 2019), so it would be inappropriate to rely on Baze to bar the plaintiffs” assistance-of—counsel
claim so early in the case and without any factual development.
E. Separation Of Powers (Claim 7)
ldaho is violating the separation-of—powers doctrine, according to Claim Seven, by failing
to provide l'DOC sufficient legislative guidelines on the carrying out of executions. See 13kt. 18 at
61~64. The defendants observe that 42 U.S.C. § 1983 does not codify state—law claims, see Dkt.
21—1 at 1.9, but-Claim Seven was not brought under § 1983. As the Amended Complaint shows,
see Dkt. 18 at 61, it was brought under the state constitution. It is Well established under 28 USC
§ 1367(a) that this Court can exercise supplemental jurisdiction over state—law claims in an action
raising federal violations if the former are “part of the same case or controversy” as the latter.
Lejardi v. Homedale Joint Sch. Dist, No. l:l4—cv~539, 2016 WI. 2910269, at *1 (D. Idaho May
18, 2016). Here, the state and federal claims all go to problems with how the defendants carry out
executions, and in particular their secrecy and eleventh-hour maneuvering. The issues are plainly
all connected to the same case or controversy, and nothing prohibits the Court from considering
the claim. Furthermore, though discretionary, the exercise of supplemental jurisdiction is
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Case 1:20--e\/«001.:L4~DCN Document 22 FiledOES/ZS/ZO Page 22 otZS
appropriate when a contrary ruling would likely lead to additional litigation in state court,
generating more ofa burden on the parties and thejudicial system and delaying a resolution to the
dispute. See Miesen v. AIA Ins, Ina, 1.:10—cv—404, 2017 WL 4413806, at *4 (D, l'daho Oct. 3,
2017). Postponing finality would be particularly problematic here, because the defendants are
threatening to execute Mr. Pizzuto only four months from now, see Dkt. 21-1 at 6M7, making it
even more prudent for this Court to settle the issue rather than triggering a brand—new state action.
The State’s only other basis for dismissing the claim is to identify an lda‘ho Supreme Court
ruling addressing a similar issue on the merits nearly forty years ago with a completely different
factual record before it. See Dltt. 2M at 19. For one thing, the State’s point is procedurally
premature. When a federal court is exercising supplemental jurisdiction, the usual rules of federal
procedure apply. See, cg, Hair/c v. JP Morgan Chase Bank USA, 552 F.3d ll 14, 1122~23 (9th
Cir. 2009) (reversing a district court for granting summary judgment against a state—law claim on
supplemental jurisdiction because there were disputed issues of material fact). The State has
moved to dismiss Claim Seven under Rule 12(b)(6) for failure to state a claim. See 'Dkt. 21-1 at
10. In the opinion referenced by the defendants, the Idaho Supreme Court rejected a separation-
of-powers claim on the merits. See State v. Osborn, 631 P2d 187, 201 (ldaho 1981). But the
question for Rule 1 2(1))(6) purposes is not whether the plaintiffs “will ultimately prevail” on their
claims, which is the only thing Osborn could arguably speak to as a merits decision. Skinner v.
Switzer, 562 US. 521, 530 (201 1). if anything, the fact that Osborn reached the merits of the
claim suggests that it has been adequately pled in this case. That is, if the Idaho Supreme Court
considered the claim a eognizable one, as it evidently did, then it is not facially deficient for Rule
12(b)(6) purposes. See I-I'Qfjinan v. Jindal, No. 3:12-Cv—796, 2014 WL 130981, at *5 (MD. La,
RESPONSE TO MOTION TO DISMlSS AMENDED COMPLAINT ~ Page 22
Case 1:20~cv~00114~DCN Document 22 Filed 06/25/20 Page 23 of 25
Ian. 10‘ 2OI4) (refraining from dismissing an execution issue for failure to state a claim because
“courts are not charged with picking winners and losers at the genesis of litigation”).
It would be especially inappropriate to rely on Osborn to dismiss the claim at this early
stage of the case because the Idaho Supreme Court did not have before it the same facts that the
plaintiffs intend to introduce here if they are permitted to do so. As it happens, there was no record
on the separation-otlpowers claim in front of the Osborn court. See Ex. 2.7 Taking a much
different path, the plaintiffs here have already made extensive allegations about why IDOC needs
greater legislative oversight in this area, including that state officials have pursued execution drugs
in a questionable manner from dubious sources; that they have deliberately delayed the
announcement of execution plans until the eleventh hour so as to make it impossible for inmates
to vindicate their rights to judicial review; and that they have engaged in deceptive practices to
hide their handling of executions from the public. See generally Dkt. .18 at I 1—31. None ofthose
facts were offered to the Osborn court. Many did not even exist at the time ofOsborn. To dismiss
this claim as inadequately pied under Osborn, as the State recommends, would improperly prevent
the plaintiffs from developing the very facts that distinguish their case from Osborn. See .Pavatt,
2010 WL 7609469, at *3 (reserving judgment at the l2(b)(6) stage on a statealaw claim in an
execution challenge until “a later stage when evidence” illuminating the issue would be available);
see also Newcal Indus, Inc. v. Ikon Office Sol, 513 F.3d 1038, 1055 (9th Cir. 2008) (remanding
because “factual questions” are not amenable to resolution under Rule I2(b)(6)).
7 To the extent it is necessary, the plaintiffs respectfully request thatjudicial notice be taken ofthe attached briefs from Osborn. Sec [Ia/anzrfactured Home leys. v. City ofSan Jose, 420 F.3d
1022, l037 (9th Cir. 2005) (takingjudicial notice ofstate-court pleadings).
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Case 1:20«cv~00114~DCN Document 2.2 Filled 06/25/20 Page 240t25
F. Violation Of Statutory Obligation To Issue Protocol (Claim 8)
Even if the Court determines that Claim Eight does not relate to a federally secured right,
as the State maintains, see Dkt, 21-1 at 19, the doctrine ot‘pendentjurisdiction permits this Court
to consider the cause of action. The doctrine allows a federal court to accept jurisdiction over
nonfederal claims that are intertwined with federal claims where all such claims share a common
nucleus of operative facts. See Hymer v. Chm, 407 F.2d 136, 137 (9th Cir. 1969). Pendent
jurisdiction exists to avoid the waste and inefficiency that would result from fragmenting related
state and federal claims. The plaintii’fs’ eighth cause of action regarding violation ofa statutory
obligation is inextricably intertwined with all of the plaintiffs’ federal claims, as they all relate to
lDOC‘s execution protocol and attendant issues with the same. Thus, this Court hasjurisdiction
over the claim.
G. Risk Of Botched Execution (Claim 9)
Claim 9 is rooted in the fact that lDOC’s lack of transparency and last—minute
gamesmanship heighten the likelihood of a botched execution involving torturous pain. See Dkt.
l 8 at 65. Most of the State’s grounds for dismissing the claim are detailed above with respect to
Claim Three and are incorporated by reference here. See supra at Part 'lV.B. That leaves only the
State’s reliance on Creec/i 1, see Dkt. 2l-l at '16, which is not on point. in the referenced passage
from Creech I, the Court was dealing with claims alleging that the announced protocol carried
with it an unacceptable danger ofmistakes occurring at the execution. See 2012 WL 1995085, at
*16——20. The claims revolved around perceived deficiencies in the protocol. That is not Claim
Nine. lt is based not on flaws in the protocol but on its nonexistence. No matter what ends up in
the protocol, the fact that [DOC insists on introducing it shortly before the execution, with no time
for its contents to be meaningfully litigated and limited time for prison personnel to train and
RESPONSE TO MOTION TO DlSMlSS AMENDED COMPLAINT ~ Page 24
Case :1.:20~cv~001l4--DCN Document 22 Filed 06/25/20 PageZt—S 01‘25
practice under its provisions, inevitably increases the risk of problems arising at the event. See
Hajfinan, 20l4 WL 130981, at *5 (rejecting a motion to dismiss a similar Eighth Amendment
claim. on l2(b)(6) grounds, in part because of allegations that the State altered its protocol shortly
before executions in the past). The State’s bare citation to an irrelevant order does not support
dismissal ofthe claim.
V. Conclusion
For the reasons stated, the defendants’ motion to dismiss, Dlct. 2i, should be denied.8
DATED this 25th day ofJune 2020.
/s/ Jonah J. itiorwitzJonah J. Horwitz.Christopher M , SanchezFederal Defender Services of Idaho
/s/ Stanley J. PanikowskiStanley J. PanikowskiDLA PIPER LLP (US)
Attorneys for Plaintififi’
CERTIFICATE OF SERVICE
I hereby certify that on the 25th day ofJune 2020, i electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system, which is designed to send a Notice ofElectronic Filing to persons including the following:
Mark Kubinski Oscar Klaas
instibitisisttiiids.s,:_i..ti.s,l.icsm: sighs:stilt).,idoeidaiies9y.
/s/ Julie HillJulie Hill
8 To the extent any claims are nonetheless dismissed on exhaustion or ripeness grounds, the
dismissal should be without prejudice. See O’Giiinn v. Lox-relock Corr. Cm, 502 F.3d 1056, 1059
(9th Cir. 2007) (exhaustion); Assoc. O/‘Am. Med ’1 Calls. v. United States, 217 EM 770, 785 (9thCir. 2000) (ripeness).
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