Gerald Ross Pizzuto, Jr. v. A.J. Arave, Warden

concurring in part and dissenting in part:

First, I object to the premature filing of this opinion. The Supreme Court has granted certiorari in Arizona v. Ring, 200 Ariz. 267 , 25 P.3d 1139 (2001), to decide whether Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), overrules Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), and requires that a jury, rather than a judge, find the aggravating factors that expose a defendant to death. Because Pizzuto raises the same objection to Idaho’s judge-sentencing scheme, the Supreme Court’s resolution of this issue may be dispositive on the sentencing issue in this case. It is inappropriate and contrary to the usual practice of our court to file an opinion while a controlling issue is pending before the Supreme Court. Nonetheless, the majority insists upon filing immediately. The majority agrees to hold the mandate, but, in the meantime, we are airing views on issues that may be rendered moot if the Supreme Court overrules Walton . The majority places the parties in an awkward position in that they must proceed with petitions for rehearing and en banc consideration and responses thereto,…

Idaho state prisoner Gerald Ross Pizzu-to, Jr. appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition, in which he challenges his 1986 conviction and sentence for the first degree murders of Berta Herndon and her nephew, Delbert Herndon. Pizzuto was sentenced to death.

Because Pizzuto filed his habeas petition before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, AEDPA does not apply to the merits of his appeal. However, on April 26, 2000, the Supreme Court held in Slack v. McDaniel, 529 U.S. 473, 482 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000), that the procedural requirements of AEDPA govern any habeas petitioner’s appeal commenced after the statute’s effective date, April 24, 1996, regardless of when the petition was filed. Consequently, Pizzuto needs a certificate of appealability.(COA) rather than a certificate of probable cause (CPC) for this court to have jurisdiction. As Pizzuto could not have known that a COA rather than a CPC was required, we treat “the petitioner’s notice of appeal as a request for a COA on the issues raised in the briefs, and we grant a COA on those issues as to which the petitioner has…

280 F.3d 949 Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee. No. 97-99017. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 24, 2001. Filed February 6, 2002. COPYRIGHT MATERIAL OMITTED Robert H. Gombiner, Assistant Federal Public Defender, Tacoma, WA, for the petitioner-appellant. L. LaMont Anderson, Deputy Attorney General, Boise, ID, for the respondent-appellee. Appeal from the United States District Court for the District of Idaho; Alan A. McDonald, District Judge, Presiding. Before B. FLETCHER, RYMER, and GOULD, Circuit Judges. OPINION RYMER, Circuit Judge. 1 Idaho state prisoner Gerald Ross Pizzuto, Jr. appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition, in which he challenges his 1986 conviction and sentence for the first degree murders of Berta Herndon and her nephew, Delbert Herndon. Pizzuto was sentenced to death. 2 Because Pizzuto filed his habeas petition before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, AEDPA does not apply to the merits of his appeal. However, on April 26, 2000, the Supreme Court held in Slack v. McDaniel, 529…