Pizzuto

Opinion by Judge GOULD; Dissent by Judge B. FLETCHER.

OPINION

Gerald Ross Pizzuto, Jr., requests permission to file a second or successive application for a writ of habeas corpus in the District of Idaho. See 28 U.S.C. § 2244 (b)(3)(A).

I

Pizzuto was convicted of two counts of murder in the first degree, two counts of felony murder, one count of robbery, and one count of grand theft on March 27, 1986. He was sentenced to death for the murders of Berta Louise Herndon and her nephew, Delbert Dean Herndon, on May 23, 1986. Our opinion of February 6, 2002 details the circumstances of Pizzuto’s crimes and the evidence presented at his trial:

Pizzuto v. Arave, 280 F.3d 949, 952-54 (9th Cir.2002).

Pizzuto’s conviction and sentence were upheld on direct review. On state collateral review, the Idaho Supreme Court vacated Pizzuto’s robbery conviction, concluding it merged as a lesser-included offense of felony-murder. Pizzuto’s other convictions and his sentence were upheld on state collateral review and federal habeas corpus review.

On March 2, 2011, Pizzuto filed a motion to file a successive habeas corpus petition challenging his conviction and sentence. He alleges seven claims —…

B. FLETCHER, Circuit Judge,

I dissent. We should grant Pizzuto’s motion to file a second or successive application for a writ of habeas corpus pursuant to 28 U.S.C. § 2244 (b)(2)(B). Pizzuto raises serious claims of judicial and prosecutorial misconduct that were not presented in his prior habeas applications. The factual predicate for these claims was revealed only in 2005 by Pizzuto’s co-defendant and could not have been discovered previously even through the exercise of due diligence. Pizzuto’s claims, if proved, will establish such pervasive misconduct that no reasonable factfinder would have found Pizzuto guilty of the underlying offense. He should be afforded the opportunity to present these claims in an application for a writ of habeas corpus.

I am shocked by the conduct in this case. Nothing can be more disturbing to a judge than a conviction and death sentence obtained by a corrupt prosecutor colluding with a corrupt judge. The State asks us to deny Pizzuto an opportunity to challenge just such a conviction and sentence. The majority is willing to do just that. But no fair legal system — and certainly not our American legal system — should allow a conviction and death…