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

385 F.3d 1247 Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee. No. 97-99017. United States Court of Appeals, Ninth Circuit. Filed October 20, 2004. Joan M. Fisher, Bruce D. Livingston, Federal Public Defender, Moscow, ID, for Petitioner-Appellant. Robert H. Gombiner, Federal Public Defender's Office Western District of Washington, Seattle, WA, Michael A. Henderson, Asst. Atty. Gen., Kenneth Robins, L. Lamont Anderson, Office of Attorney General, Boise, ID, for Respondent-Appellee. Before B. FLETCHER, RYMER, and GOULD, Circuit Judges. ORDER 1 The dissenting opinion of Judge B. Fletcher filed February 6, 2002, and cited at 280 F.3d 949, 977 (9th Cir.2002) (slip op. at 1866), is amended as follows: 2 (1) The first full paragraph at slip op. 1866 is deleted. 3 (2) The first sentence of the second paragraph at slip op. at 1866 is deleted. 4 (3) The phrase "With that caveat," in the second sentence of the second paragraph at slip op. 1866 is deleted. 5 (4) Slip op. 1893, second paragraph, tenth line: add "(overruled on other grounds by Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002))" after Walton v. Arizona, 497 U.S.…

concurring in part and dissenting in part:

I concur in the results reached by the majority with respect to Pizzuto’s claim of ineffective assistance of counsel on appeal, his challenge to the Idaho Supreme Court’s proportionality review, and his request for an evidentiary hearing on judicial bias, the trial judge’s reliance on undisclosed information at sentencing, and ineffective assistance of counsel at trial. I respectfully dissent from the majority’s opinion with respect to Pizzuto’s claim of ineffective assistance of counsel at sentencing, the violation of his Fifth and Sixth Amendment rights in his presentence interviews, the constitutionality of Idaho’s “heinous, atrocious, or cruel” aggravating factor, and the trial court’s reliance on unconstitutional, non-statutory aggravating factors.

I.

Ineffective Assistance at Sentencing

As the majority correctly explains, under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), we must determine whether defense counsel’s performance in the penalty phase of Pizzuto’s trial was deficient and whether the deficiencies prejudiced the defense. For prejudice, the question is whether *1249 there is a…

ORDER

The dissenting opinion of Judge B. Fletcher filed February 6, 2002, and cited at 280 F.3d 949, 977 (9th Cir.2002) (slip op. at 1866), is amended as follows:

(1) The first full paragraph at slip op. 1866 is deleted.

(2) The first sentence of the second paragraph at slip op. at 1866 is deleted.

(3) The phrase “With that caveat,” in the second sentence of the second paragraph at slip op. 1866 is deleted.

(4) Slip op. 1893, second paragraph, tenth line: add “(overruled on other grounds by Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002))” after Walton v. Arizona, 497 U.S. 639, 654 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990).

(5) Slip op. 1899, second full paragraph, third line: add footnote reference 15 after the word mitigating. 15 The footnote shall read as follows:

The majority opinion has not been amended.