PIZZUTO V ARAVE

Partial Concurrence and Partial Dissent by Judge B. Fletcher

1813

Robert H. Gombiner, Assistant Federal Public Defender,

Tacoma, Washington, for the petitioner-appellant.

L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,

for the respondent-appellee.

_________________________________________________________________

OPINION

RYMER, Circuit Judge:

Idaho state prisoner Gerald Ross Pizzuto, Jr. appeals the

district court's dismissal of his 28 U.S.C. § 2254 habeas peti-

tion, 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 (2000), that the

procedural requirements of AEDPA govern any habeas peti-

tioner'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 made the requisite `sub-

stantial showing of the denial of a constitutional right.' " Mor-

ris v. Woodford, 229 F.3d 775, 779 (9th Cir. 2000) (quoting

Schell v. Witek, 218 F.3d 1017, 1021 n.4 (9th Cir. 2000)). We

conclude that Pizzuto has made such a showing and so grant

a COA on the issues raised in his briefs.

On the merits, we affirm.

I

On July 25, 1985, Berta Herndon and her adult nephew

Delbert Herndon were robbed and murdered and their prop-

erty was stolen while they were camping in the Ruby Mead-

ows area, a remote campsite near McCall, Idaho. The police

discovered their bodies in shallow graves that had been dug

near their cabin. The victims' hands were bound behind their

backs with shoelaces and heavy wire, and Berta's and Del-

bert's jeans were pulled below their knees. The murders

occurred in the Herndon cabin.

Both the Idaho Supreme Court and the district court's order

denying Pizzuto's petition for writ of habeas corpus describe

the facts in detail. In sum, testimony at trial showed that Piz-

zuto, James Rice, and William and Lene Odom knew each

other from Orland, California. They (along with the Odoms'

two children) traveled to Idaho in the Odoms' vehicle, and

were camping together that day in a cabin in the Ruby Mead-

ows area. William Odom and Pizzuto discussed robbing two

fishermen, Stephen Crawford and Jack Roberts. While they

were at the pond, the Herndons drove by in their pickup truck.

Pizzuto and Odom abandoned their plan to rob the fishermen,

and returned to their cabin. Shortly thereafter, Pizzuto left the

others and walked off in the direction the Herndons had

driven. He picked up a .22 caliber rifle and said he was going

"hunting."

Twenty to thirty minutes later, Rice and Odom drove up the

road in Odom's truck looking for Pizzuto. As they drove past

the Herndon cabin, they saw Pizzuto standing in the doorway,

holding a revolver. Pizzuto came up to Rice and Odom and

told them to "give me half an hour and then come back up."

Rice and Odom drove back to their cabin, left their truck, and

walked back to the Herndon cabin.

Approaching the Herndon cabin, Rice and Odom heard

"bashing hollow sounds" like a watermelon being thumped.

Pizzuto emerged with a hammer, the rifle, a revolver, and a

pair of cowboy boots. He also had a "wad of hundred dollar

bills" that he gave to Odom; Rice took the rifle. Pizzuto told

them that he had "put those people to sleep, permanently." He

also said that he told the Herndons that he was a"highway-

man" and that, when Delbert Herndon didn't believe him, Piz-

zuto put a gun up to Delbert's face, "made him drop his pants

and crawl around the cabin," and asked Delbert:"Does this

look like a cannon from where you are standing at?"

Rice then heard some snoring sounds coming from the

cabin and went inside. There, he found Berta and Delbert

lying on the ground, with blood on their heads. Both bodies

were still, except for Delbert Herndon's legs which were

shaking. Rice shot Delbert Herndon in the head because he

"didn't want him to suffer."

Pizzuto, Rice, and Odom returned to their camp, divided up

the money Pizzuto had stolen from the Herndons, and gave

Lene Odom a leftover $100 bill. Pizzuto and Odom then went

back to the Herndon cabin to bury the bodies. At the cabin,

Odom saw that the Herndons' hands were tied behind their

backs. They buried Berta Herndon in a hole that Rice had pre-

viously dug. Pizzuto and Odom got Rice to help them bury

Delbert Herndon; they threw his body in a shallow ditch and

covered it with dirt.

After they returned to their cabin, Pizzuto, the Odoms, and

Rice sorted through the Herndons' possessions and took what

they wanted. They left Ruby Meadows with Odom driving his

truck and Pizzuto and Rice riding in the Herndon truck. They

camped that evening at a nearby hot springs; the next morning

they parked the Herndon truck in a wooded area, drove into

Cascade and checked into a motel. They stayed there for sev-

eral days and, while there, took pictures of each other with a

camera stolen from the Herndons. Rice then took a bus to

Orland, where he reported the murders to the police.

On July 31, Pizzuto met Roger Bacon in Gold Fork Hot

Springs. Bacon and Pizzuto decided to go fishing and hunting.

As they walked toward a small stream, Pizzuto pulled out a

gun and said "he was a highwayman." Pizzuto tied Bacon's

hands behind his head with shoelaces, took money from him,

and left him tied to a tree. Bacon eventually freed himself.

Sometime in early August Pizzuto visited his sister,

Angelinna Pizzuto, in Great Falls, Montana. Pizzuto arrived

with cowboy boots, a revolver, and a two-tone gold wedding

band in his possession, all of which were subsequently identi-

fied as belonging to Delbert Herndon. Pizzuto told her that he

was a "highwayman" and that he had robbed and murdered a

man and a woman (with the man's gun, which he had) after

he had tied them to some trees. Later, Pizzuto told his sister

that he had not killed the man but Rice had; later still, that

Rice and Odom had killed the people and he, Pizzuto, had

freaked out, had a seizure, and tied a guy to a tree.

Autopsies revealed that Berta Herndon and Delbert Hern-

don each suffered two fatal blows to the head, consistent with

hammer blows, and in addition that Delbert Herndon had been

shot between the eyes which would also be fatal. The patholo-

gist was unable to determine which occurred first. Delbert

Herndon's wrists had been bound with a shoe lace and a piece

of wire, and Berta Herndon's hands and wrists were tied

behind her back using a shoe lace which was wrapped several

times around her right thumb.

Pizzuto, Rice and the Odoms were charged with the Hern-

don murders; Rice and Odom pled guilty to lesser offenses

and charges against Lene Odom were dismissed in exchange

for their agreeing to testify at Pizzuto's trial.

Following a jury trial 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. The trial judge, Hon. George C. Reinhardt, ordered

that a presentence report be completed and that psychiatric

examinations be conducted by Dr. Michael Emery and Dr.

Roger White. Pizzuto declined to meet with Dr. White on

advice of counsel. During the sentencing hearing before Judge

Reinhardt, convened May 21, 1986, Pizzuto called his two

sisters, Toni and Angelinna Pizzuto, and his aunt, Kibby

Winslow, who described the abuse he (and his sisters) suf-

fered in childhood; his former probation officer from Great

Falls, Montana, Jerome Skiba, who gave a positive report on

Pizzuto's adjustment; and Dr. Emery. Pizzuto did not testify

but made an unsworn statement to the court. The state pre-

sented eight witnesses, including Pizzuto's former wife,

Pamela Relken, who testified that Pizzuto could be"very vio-

lent, punishing" in that he had pushed her head into a wall,

drowned her cats and their puppy (who Pizzuto then hung

from the shower stall), pushed her down the stairs when she

was six-and-a-half months pregnant, pointed a gun at her head

and played roulette, described himself "as a fourth generation

Al Capone," and threatened her with death in a letter written

after he had been arrested on rape charges. It also called

Michael Berro, the presentence investigator on Pizzuto's

Michigan rape conviction, who testified that Pizzuto was "one

of two people who have ever threatened [his] life where [he]

believed it"; Paul Blumbaum, who worked at Pizzuto's jail

and testified that Pizzuto claimed to have put snakes in mail-

boxes, said that he could "get anything out of anybody he

wanted by the technique of tying them tightly around the

ankles," and threatened his jailers by saying that he was going

to bring in the Mafia; Annette Jones, who authored the pre-

sentence report for the Herndon case; Berte Herndon's wid-

ower; and Dr. Emery.

On May 23, 1986 Judge Reinhardt sentenced Pizzuto to a

fourteen-year fixed term with no possibility of parole for

grand theft and a fixed life term for robbery. On the murder

charges, the judge found that the mitigating circumstances did

not outweigh any one of five statutory aggravating circum-

stances as would make imposition of the death penalty unjust.

Accordingly, he sentenced Pizzuto to death for the murders of

Delbert Herndon and Berta Herndon.

Pizzuto filed a petition for post-conviction relief. After

holding an evidentiary hearing, the state district court dis-

missed the petition on April 15, 1988. Pizzuto appealed his

convictions and denial of the motion for post-conviction relief

to the Idaho Supreme Court, which affirmed. State v. Pizzuto,

810 P.2d 680 (Idaho 1991) (Pizzuto I).

On June 22, 1992 Pizzuto filed a motion in the federal dis-

trict court seeking appointment of counsel and a stay of exe-

cution, which was granted. He filed a petition for writ of

habeas corpus on September 18, 1992, and a first amended

petition on January 29, 1993. Meanwhile, Pizzuto filed a sec-

ond petition for post-conviction relief and moved to disqualify

the trial judge. The state district court held that the claims

were ones of which Pizzuto had knowledge that should have

been brought in his first post-conviction petition, and denied

the motion to disqualify as moot. It dismissed the second peti-

tion under Idaho Code § 19-2719, and the Idaho Supreme

Court again affirmed. Pizzuto v. State, 903 P.2d 58 (Idaho

1995) (Pizzuto II).

The federal district court denied Pizzuto's habeas petition

April 7, 1997. Pizzuto moved to alter or amend the judgment,

which the court also denied on June 9. The district court

granted a CPC on July 10. 1

II

Pizzuto contends that his trial counsel, Nick Chenoweth

and Scott Wayman, were ineffective at sentencing in a num-

ber of respects. To prevail under Strickland v. Washington,

466 U.S. 668 (1984), Pizzuto must demonstrate that his

"counsel's performance was deficient" and "that the deficient

performance prejudiced the defense." Id. at 687. Performance

is measured "as of the time of counsel's conduct, " id. at 690,

and there is a "strong presumption that counsel's conduct falls

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1 On December 12, 1997, and February 24, 1998, Pizzuto sought to

enlarge the record on appeal, and on November 29, 2000, he moved for

a remand to amend his petition for writ of habeas corpus to supplement

his ineffective assistance of counsel claims and to add a Brady claim. He

exhausted these claims in his third amended petition for post-conviction

relief in the state court, which was filed on April 13, 1998, and ultimately

denied on September 6, 2000. Pizzuto v. State , 10 P.3d 742 (Idaho 2000)

(Pizzuto III). We denied Pizzuto's motions to remand and enlarge the

record on January 25, 2001. Pizzuto has since sought permission to file a

second or successive petition for writ of habeas corpus under 28 U.S.C.

§ 2244(b)(3)(A), which we deny in a separate order.

within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action `might be con-

sidered sound trial strategy.' " Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). Because Pizzuto must

prove both deficient performance and prejudice, we"need not

determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies. . . . If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed." Id. at 697.

A petitioner must "affirmatively prove prejudice." Id. at

693. This requires showing more than the possibility that he

was prejudiced by counsels' errors. Rather, he must demon-

strate that the errors actually prejudiced him. See id. Under

Strickland, actual prejudice occurs where "there is a reason-

able probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A rea-

sonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694. Whether an error actu-

ally prejudiced a defendant is weighed against the"totality of

the evidence before the judge or jury." Id. at 695. "[A] verdict

or conclusion only weakly supported by the record is more

likely to have been affected by errors than one with over-

whelming record support." Id. at 696; see also Bragg v.

Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (holding that

"ineffective assistance claims based on a duty to investigate

must be considered in light of the strength of the govern-

ment's case"), 798 F.2d 374, 376 (9th Cir. 1986) (quoting

Eggleston v. United States)).

A

Contesting Aggravating Circumstances

Pizzuto argues that counsel made no effort to contest the

aggravating circumstances alleged by the state either through

evidence or argument. In particular, he submits that counsel

should have pointed out the weakness in the theory that Piz-

zuto alone tied up the Herndons; should have emphasized

inconsistencies between the testimony of Rice and Odom

about whether Rice said he wanted to have sex with Berta

Herndon, whether Odom made Rice "dance" by pointing a

gun at his feet, whether Rice volunteered to dig the graves,

and whether Odom suggested that they jump a gold miner's

claim before the robbery and murder took place; and should

have argued that it was the presence of Rice and Odom which

transformed the Herndon robbery into murder because Piz-

zuto by himself only robbed Bacon but did not harm him.

Individually or cumulatively, we do not see how these argu-

ments would have made a difference.

Under Idaho law at the time of Pizzuto's sentencing, the

judge alone determines whether at least one of ten statutory

aggravating circumstances has been established beyond a rea-

sonable doubt. Idaho Code § 19-2515. 2 Once an aggravating

_________________________________________________________________

2 The ten statutory aggravating factors are:

(1) The defendant was previously convicted of another murder; (2) At the time the murder was committed the defendant also committed another murder; (3) The defendant knowingly created a great risk of death to many persons; (4) The murder was committed for remuneration or the promise of remuneration . . . . ; (5) The murder was especially heinous, atrocious or cruel, man- ifesting exceptional depravity; (6) By the murder, or circumstances surrounding its commis- sion, the defendant exhibited utter disregard for human life; (7) The murder was one defined as murder of the first degree by section 18-4003, Idaho Code, subsections (b), (c), (d), (e), or (f), and it was accompanied with the specific intent to cause the death of a human being; (8) The defendant, by prior conduct or conduct in the commis- sion of the murder at hand, has exhibited a propensity to

1826

circumstance is found true, the court "shall" sentence the

defendant to death "unless the court finds that mitigating cir-

cumstances which may be presented outweigh the gravity of

any aggravating circumstance found and make the imposition

of death unjust." Id. at § 19-2515(c). Both parties have the

right at sentencing to present "all relevant evidence in aggra-

vation and mitigation," but "[e]vidence admitted at trial shall

be considered and need not be repeated at the sentencing hear-

ing." Id. at § 19-2515(d).

Here, the state district judge who sentenced Pizzuto also

presided over the guilt phase, and made it clear that evidence

adduced at trial would be considered at sentencing. His find-

ings specifically note that he had considered "all of the evi-

dence admitted during the trial . . . ." Therefore, counsels'

effectiveness cannot be measured solely by what they did or

didn't do at the sentencing phase. See Woratzeck v. Stewart,

97 F.3d 329, 336-37 (9th Cir. 1996) (no ineffective assistance

of counsel for failing to present evidence when evidence was

already in the record); Williams v. Calderon, 52 F.3d 1465,

1471 (9th Cir. 1995) (prejudice not shown where trial counsel

introduced no mitigating evidence at penalty phase but had

presented that evidence during the guilt phase).

Every weakness or discrepancy that Pizzuto now says

should have been cited and argued at sentencing was already

before the court. At trial, counsel impeached Rice and Odom

_________________________________________________________________

commit murder which will probably constitute a continuing threat to society; (9) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer, or prosecuting attorney because of the exercise of official duty; (10) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.

Idaho Code § 19-2515(g).

with their prior convictions, lesser sentences, and drinking

and drug use; they portrayed Lene Odom as a cold hearted

criminal who "rifled" through the Herndons' belongings,

demanded her share of the loot and escaped prosecution in

exchange for her testimony. Counsel meticulously cross-

examined Rice, Odom and Lene Odom and argued that they

were liars who had "concoct[ed] a story " but "forgot the

details." In closing argument, Chenoweth highlighted incon-

sistencies in their testimony by noting that Lene Odom said

she and Odom had strips of beef and fries in McCall and that

no one else ate, while Rice testified that they bought a dozen

hamburgers but that he couldn't eat them; that Lene Odom

claimed her husband never discussed the murders, while

Odom stated he told her that people had been killed; that Rice

saw Pizzuto exit the Herndon cabin wearing cowboy boots,

while Odom saw him carrying them; that Rice saw Pizzuto

carrying a claw hammer, while Odom saw a ball-peen one;

that Rice heard four "thunks" from the Herndon cabin, while

Odom heard two; that Rice claimed that the hole he dug was

only for panning gold and rubies, while Odom maintained that

Rice had volunteered to dig the hole as a grave; that Rice

denied taking $58 out of Berta Herndon's purse, while Odom

said he did; that Rice denied wanting to have sex with Berta

Herndon, while Odom said he did; that Rice claimed that Del-

bert Herndon was lying on the ground and that he was stand-

ing at Delbert's feet when he fired the rifle, while forensic

evidence demonstrated that Delbert was either sitting or

standing if Rice was where he said he was; that Rice never

saw the Herndons' hands bound, while Odom said they were;

that Rice claimed to have marked the graves for the police,

while the police found no such markers; and that Rice testi-

fied that Lene Odom asked for her share of the money, while

she and Odom claimed it was Pizzuto's idea to give her the

extra $100. Chenoweth also emphasized that Odom pointed a

pistol at Rice's feet and made him dance, and that it was

Odom who wanted to jump claims and hide the bodies.

It would not have altered the outcome for counsel to have

argued more forcefully that the difference between the Bacon

robbery and the Herdon murders was that Rice and Odom

were not present during the Bacon robbery. Neither Rice nor

Odom was present inside the cabin when Pizzuto struck the

Herndons' heads with a hammer. Further, Pizzuto called him-

self a highwayman when he robbed and tied up Bacon, told

Rice and Odom that he had killed the Herndons after he had

identified himself as one, and bragged to his sister about

being a highwayman as well as the slaying.

By the same token, we cannot see where greater focus on

the assumption that Pizzuto alone tied up the Herndons would

have gotten him. It is countersensical to suppose that the vic-

tims' hands or feet were tied together after they were killed.

Pizzuto told his sister about tying up victims in Idaho, and he

told a lieutenant with the Idaho County Sheriff's office that he

could "get anything out of anybody he wanted by tying them

tightly about the ankles . . . ," he had tied up Bacon, and

Odom said that the Herndons were tied up when he first saw

them -- which was after their heads were thumped.

Further, Judge Reinhardt found five statutory aggravat-

ing circumstances beyond a reasonable doubt: (1) at the time

Pizzuto murdered Delbert Herndon, he also murdered Berta

Herndon; (2) the murders were especially heinous, atrocious,

cruel and manifested exceptional depravity; (3) by the mur-

ders and circumstances surrounding their commission, Piz-

zuto exhibited utter disregard for human life; (4) the murders

were accompanied with the specific intent to cause the two

deaths; and (5) by prior conduct and by conduct in the mur-

ders in this case, Pizzuto had exhibited a propensity to com-

mit murder which will probably constitute a continuing threat

to society. 3 The state district court also found "beyond a rea-

_________________________________________________________________

3 Idaho Code § 19-22515(g)(2), (5), (6), (7) and (8). The state district

court's findings on these aggravating circumstances state:

(a) At the time the Defendant murdered Del Dean Herndon, he also murdered Berta Louise Herndon.

sonable doubt that the mitigating circumstances which were presented do not outweigh any one of the Statutory Aggravat- ing Circumstances listed above as would make the imposition of the death penalty unjust." Thus, to establish prejudice Piz- zuto must show that but for his counsel's deficient perfor- mance the trial court would not have found any one of the statutory aggravating circumstances. Cf. Zant v. Stephens, 462 U.S. 862, 886-88 (1983) (reimposing death sentence where only one of three aggravating circumstances had been held to be invalid); Hoffman v. Arave, 236 F.3d 523, 542 (9th Cir. _________________________________________________________________

(b) The murders of the Herndons were especially heinous, atro- cious, cruel, and manifested exceptional depravity. The Defendant approached his victims at a remote cabin in Idaho County near McCall, Idaho. He pulled a gun on them, he forced Mr. Herndon to drop his pants and crawl into the cabin, he bound their arms and legs, and then proceeded to smash in the back of their skulls with a hammer. The man- ner in which this unprovoked and calculated killing was accomplished exhibits a depravity which exceeds all com- prehension, explanation, and human decency. (c) By the murder and the circumstances surrounding its com- mission, the Defendant exhibited utter disregard for human life. The Defendant approached the Herndons at gunpoint and tied them up for the purpose of stealing from them. The circumstances demonstrate that the Herndons posed no threat to the Defendant's safety or to his escape from the scene of the robbery. The killing was accomplished not out of rage, revenge, or for personal gain. The murders were cold-blooded and pitiless. The killing was committed for the sake of killing. (d) The murders are defined as murder of the first degree by Idaho Code Section 18-4003(a) and 18-4003(d). The mur- ders were accompanied with the specific intent to cause the deaths of Mr. and Mrs. Herndon. (e) The Defendant, by prior conduct and by conduct in the com- mission of the murders in this case has exhibited a propen- sity to commit murder which will constitute a continuing threat to society.

2001), cert. denied, 122 S.Ct. 323, _______ U.S. _______ (2001); see also Beam v. Paskett, 3 F.3d 1301, 1309 (9th Cir. 1993) (as amended), overruled on other grounds, Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir. 1999). However, he does not (and we believe, cannot) show how curing any of these claimed deficiencies would have avoided Judge Reinhardt's finding that "[a]t the time the Defendant murdered Del Dean Herndon, he also murdered Berta Louise Herndon." Pizzuto suggests that it is unclear whether he committed two murders or one because the instructions permitted him to be found guilty as either a principal or as an accomplice. But this would have no effect on the aggravating circumstance codified at Idaho Code § 19-2515(g)(2), which does not require the defendant to be the sole killer. See State v. Lank- ford, 747 P.2d 710, 730-31 (Idaho 1987) (trial court found aggravating circumstance (g)(2) where co-defendant played a greater role in the murders), overruled on other grounds, Lankford v. Idaho, 500 U.S. 110 (1991). In any event, there was evidence from both Rice and Odom that Pizzuto was in the cabin when the thumps were heard and that this was after Pizzuto had come out of the cabin and re-entered it. They also agreed that Rice shot Delbert Herndon after the hammer blows had been delivered. And the pathologist opined that the blunt instrument blows to the back of Delbert Herndon's head were sufficient to cause his death. Thus, even had defense counsel pointed out the testimony again, and again made the arguments that Pizzuto now posits, there is not a reasonable probability it would have altered the finding that Pizzuto killed Berta Herndon when he murdered Delbert Herndon. Finally, Pizzuto relies on Conde v. Henry, 198 F.3d 734 (9th Cir. 1999), and Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), to argue that counsels' failure to contest or argue the aggravating factors was a complete breakdown in the adver- sary system requiring relief without regard to whether he has demonstrated actual prejudice. In an appropriate case, Strick- land's prejudice prong may be presumed, United States v. Cronic, 466 U.S. 648, 659 (1984), but this would only occur when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. at 659. Here, counsel contested the state's evidence at trial, and introduced mitigat- ing evidence at sentencing; by no means did they entirely fail to engage the prosecution. Neither Conde nor Cone suggests otherwise, as there was no mitigating evidence and no final argument in Cone, and no argument was allowed on the the- ory of defense in Conde. Thus, Pizzuto must show actual prej- udice and, we conclude, he has failed to do so with respect to contesting the aggravating circumstances.

B

Arguing Relative Culpability

Pizzuto asserts that counsel did not marshal any of the evi-

dence from trial showing that Rice and Odom had unsavory

backgrounds and did not present additional evidence suggest-

ing that they were unremorseful liars: a jail officer's report

that Odom has "no remorse for what happened to the Hern-

dons and feels he has beaten the system"; testimony that

Odom bragged that, in California, "narcs who snitched were

made to dig their own graves"; and a polygraph showing that

Rice lied when he denied digging a grave for the Herndons,

said that he marked the Herndon graves so the police could

locate them, and claimed that he did not know the Herndons

would be hurt when Pizzuto went to their cabin with the rifle.

Relative culpability can be a mitigating factor at sentenc-

ing, Rupe v. Wood, 93 F.3d 1434, 1441 (9th Cir. 1996), and

the Eighth Amendment requires that the sentencing judge or

jury be permitted to give effect to all mitigating evidence

presented by the defendant. "Failure to present mitigating evi-

dence at the penalty phase of a capital case constitutes inef-

fective assistance of counsel." Bean v. Calderon, 163 F.3d

between testimony given by Rice and Odom, and inconsisten-

cies between what each said at trial and before, were brought

out in the guilt phase. They were cross-examined about their

criminal history as well as their plea negotiations for the

Herndon murders. Chenoweth argued at sentencing that

despite the jury's verdict, there should still remain "some

doubt as to the roles of these people in this grizzly event that

took place at Ruby Meadows . . . ." In these circumstances we

cannot say that counsel was ineffective. Williams , 52 F.3d at

1471.

But even if counsel should have offered or argued the jail

officer's report, the testimony about Odom's bragging, and

Rice's polygraph, the evidence was cumulative and therefore

Pizzuto was not prejudiced. Babbitt v. Calderon , 151 F.3d

1170 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999) (no

prejudice where counsel failed to present cumulative mitigat-

ing evidence). There was evidence as well as argument that

Odom was the leader of the group and the mastermind behind

the robberies and murders. Aside from the polygraph, there

was evidence before the court that Rice had volunteered to dig

the grave and that the hole was too far from the river to be

useful for panning; that the police never found any of the

markers Rice claimed to have placed by the Herndon graves;

and that Rice played a greater role in the murders than he

claimed. When measured against the state's overwhelming

aggravating evidence, there is no probability that additional

evidence of a similar sort would have altered the outcome.

Strickland, 466 U.S. at 696; Bonin v. Calderon, 59 F.3d 815,

836 (9th Cir. 1995).

C

Independent Psychological Experts

Pizzuto argues that trial counsel never consulted an inde-

pendent psychological expert (one reporting only to the

defense) and failed adequately to prepare Dr. Emery, who had

been chosen by the court but whom the defense called to tes-

tify at the sentencing hearing. In Pizzuto's view, the sentenc-

ing court found thirteen aggravating factors based directly on

Emery's conclusion that Pizzuto would always be a danger to

others whether in or out of prison, whereas evidence was

available that Pizzuto could be housed and function safely in

a prison setting if administered proper drugs. Pizzuto main-

tains that defense counsel could not prevent Emery's harmful

conclusions from being introduced against him because they

had failed to request an independent expert. Further, Pizzuto

contends that he was sentenced without the court being

informed of his history of head injuries and seizures, or

receiving an expert opinion that his behavior could be

accounted for by organic brain syndrome rather than an anti-

social personality alone.

We conclude that Pizzuto has not shown that counsel failed

to consult with an independent expert or to request one, but

regardless, he was not prejudiced by counsels' efforts or prep-

aration of Emery because the post-conviction evidence he has

produced does not undermine our confidence in the sentence.

i

Pizzuto was examined before trial by Dr. Sarah Werner, a

specialist in neurology. In an October 17, 1985"History &

Physical" Werner recites that Pizzuto had been followed by

Dr. Greenwood, a general practioner, and had reported several

seizure episodes in 1985. Her impression was that Pizzuto's

history of episodes of loss of consciousness heralded by an

abnormal unpleasant smell was consistent with temporal lobe

origin seizure, which he likely had in the past, but that the

variability and unusually rapid clearing once out of medical

observation, and the timing of the symptomatology, of the

present episodes strongly suggest that they were a"pseudo

seizure." Werner recommended that Pizzuto be continued on

Tegetrol and Phenobarbital.

Based on Pizzuto's behavior in the Idaho County Jail and

the Lewis County Jail and on the confidential reports received

from Dr. Werner and Dr. Greenwood, defense counsel moved

on December 5, 1985 for a determination of Pizzuto's fitness

to proceed to trial. The court granted this motion and

appointed Dr. Roger White, a psychiatrist. White's report to

the court was dated January 6, 1986 and indicated that Pizzuto

was cooperative, alert and of average intelligence, without

evidence of mental illness, and competent to stand trial.

Pizzuto also saw Dr. Emery for a psychological evaluation

before trial. In his report to the court of January 23, 1986,

Emery opined that Pizzuto had cognitive limitations, espe-

cially in his ability to anticipate the consequences of his

behavior and the effects of his behavior on others; showed lit-

tle ability to mediate emotions or tolerate ambiguity; and was

preoccupied with violence and confrontation which probably

reflected the victim role in which he found himself during his

childhood. Emery, too, concluded that Pizzuto understood the

nature of the proceedings and was both capable of assisting in

his own defense and had the capacity to enter into a state of

mind which could be an element of the offenses for which he

was charged.

After the guilt phase and before sentencing, Judge Rein-

hardt observed that Pizzuto's mental condition would be a

significant factor at sentencing and again appointed Emery to

evaluate Pizzuto. Emery's April 24, 1986 report to the court

indicates that his diagnosis of Pizzuto's condition was the

same as before -- not a mental illness in the sense of a

thought or mood disorder that might be amenable to treatment

with medication, but a personality disorder or set of behav-

ioral patterns including a limited capacity to anticipate the

consequences of his behavior, to appreciate his behavior's

effect on others, to mediate his emotions, to tolerate ambigu-

ity, and to understand and accept responsibility. Emery also

noted that he could not rule out the possibility that Pizzuto

might cause harm to others, and that "[t]he prognosis for reha-

bilitation is statistically not good, but also not impossible."

Emery was called to testify at the sentencing hearing by the

defense, and in rebuttal, by the prosecution. In addition to

interviewing Pizzuto a second time, Emery interviewed Pizzu-

to's sisters and his aunt and listened to the mitigation evi-

dence that Pizzuto presented. He testified that Pizzuto had a

perception of the world as being populated by people who

have the choice of being victimizers or victims. He explained

how Pizzuto dwelt on the abuse he suffered at the hands of his

stepfather and his need to demonstrate his own powers in

competition with others in order to justify himself. Emery also

stated that if he were going to try to engineer a childhood

environment to create a predatory violent individual as an

adult, he couldn't do better than Pizzuto's. He indicated that

the probability of rehabilitating Pizzuto would not be high,

and that in a prison environment Pizzuto would to some

extent be a victimizer and to some extent a victim. On cross-

examination Emery characterized Pizzuto as aggressive,

impulsive, manipulative and as having little ability to tolerate

ambiguity. When recalled by the state, Emery reiterated that

Pizzuto will remain dangerous, violent, and manipulative in

prison, no matter what kind of treatment he receives.

After sentencing, Pizzuto was seen by Dr. Michael

Koerner, an epilepsy specialist, on September 9, 1987. Coun-

sel advised the court in a December 1987 hearing that

Koerner had concluded that Pizzuto might have a temporal

lobe seizure disorder, but they did not offer his report contain-

ing examination results and diagnosis at post-conviction hear-

ings. (Koerner did file an affidavit April 11, 1988 indicating

that it is reasonable to make a working diagnosis of epilepsy,

that Pizzuto's most recent EEG done when Koerner examined

him was normal, that he has a family history of seizures, that

his epilepsy can be fairly well controlled on modest amounts

of medication, and that the fact that Pizzuto has done well for

prolonged periods of time while not on medication is not con-

tradictory because patients with genuine epilepsy may occa-

sionally demonstrate a type of seizure pattern similar to

Pizzuto's.)

In February 1987, Pizzuto filed an amended motion for

post-conviction relief on the basis that he may have been suf-

fering from a temporal lobe seizure disorder and an organic

brain syndrome which was not detected prior to trial or sen-

tencing. He submitted a report from James R. Merikangas,

M.D., a neurologist and psychiatrist, dated April 1, 1988.

Merikangas noted Pizzuto's history of head injury, his history

of epilepsy diagnosis, the fact that Dr. Werner maintained

Pizzuto on seizure medication, and Pizzuto's history of drug

abuse. He suggests that Pizzuto is a brain damaged individual

of which epilepsy is one of the symptoms, and that as a result

of brain injuries suffered when Pizzuto was 2-1/2 and 14

years old his brain is defective and his cognition and ability

to control his impulses are not those of a "normal" person.

The state submitted an affidavit from Dr. Werner, dated

March 8, 1987. In it Werner opined that the probability that

Pizzuto was suffering from temporal lobe organic disorder

was exceedingly low given the results of her October 1985

examinations and testing. She also explained that violence

associated with epilepsy is not goal directed, but stereotyped,

simple, unsustained, unplanned, and never part of a consecu-

tive series of complex acts or in response to provocation prior

to the seizure or premeditated. In her opinion, Pizzuto's epi-

sodes were most consistent with pseudo, or pretended, sei-

zures, and no further studies were needed at the time she

examined him in October 1985.

Dr. Emery also filed an affidavit February 6, 1987, in

which he averred that his examination of Pizzuto prior to trial

did not include neurological testing or consultation with a

neurological psychologist, which might better detect evidence

of organic brain damage. He suggested that Dr. Craig W. Bea-

ver, a neuropsychologist, could undertake such an examina-

tion.

Judge Reinhardt held an evidentiary hearing April 7, 1988

at which Pizzuto testified. He denied the petition for post con-

viction relief April 15, finding that before trial, at Pizzuto's

request, he was examined by Dr. Greenwood, a general practi-

tioner; Dr. Werner, a medical doctor specializing in neurol-

ogy; Dr. White, a psychiatrist; and Dr. Emery, a psychologist,

and that after trial but prior to sentencing, Pizzuto's request

by letter dated April 14, 1986 to hire Dr. Emery for a further

examination for the purpose of testifying at the sentencing

hearing was granted. Relying on Werner's affidavit, Judge

Reinhardt also found that Pizzuto was not suffering from a

temporal lobe organic disorder at any material time, but that

even if he were, such a disorder could not account for, or have

any bearing upon, the Herndon murders which the evidence

demonstrates were premeditated, planned out, and part of a

consecutive series of complex acts.

Finally, Pizzuto was evaluated by Dr. Beaver for purposes

of his federal habeas proceeding. Beaver gave Pizzuto a com-

prehensive neuropsychometric examination February 12,

1996. His report notes that the April 1987 affidavit of Pizzu-

to's mother recounts brain injuries at 2-1/2 and 14, and that

Pizzuto's medical records dating back to 1990 recount multi-

ple occasions in which Pizzuto reported or was observed hav-

ing seizure-like behavior. Pizzuto told Beaver that when he

experiences seizures, he loses control and does not recall

exactly what occurs; also, that "[h]e understands when he

does have seizures, he can become very aggressive and vio-

lent towards others, but, again, indicates that he has little

recall of those events when he has the actual seizures."

According to Beaver, neuropsychometric testing showed evi-

dence of "significant neurocognitive deficits that would be

consistent with a prior history of brain injury and/or seizure

disorder." Further, it indicated that Pizzuto has difficulty with

impulse control and sustained attention in activities, as well

as difficulty with decision-making in more demanding or

unfamiliar circumstances. Beaver notes that when the murders

occurred, Pizzuto indicated that he was not taking anti-seizure

medication and had been heavily involved in polysubstance

abuse. "This certainly would have affected his ability to make

appropriate decisions and to effectively control his behavior

in a highly charged and emotional circumstance."

Beaver also describes Pizzuto as demonstrating a strong

tendency to overstate his accomplishments, being easily influ-

enced by others "in a highly emotionally charged situation"

not to show weakness, having a need for attention, and being

rather passive dependent. Beaver agrees that from Pizzuto's

history and records, he presents a "significant threat to others

if he were again placed in an unstructured environment out-

side of the correctional system." However, given Pizzuto's

age and conduct in prison, Beaver opines that Pizzuto does

not pose a high risk to others within the structure of a correc-

tional facility and can function safely there if he continues on

medication.

ii

Although Dr. Werner was not strictly speaking an indepen-

dent expert, she did perform some of the functions that Piz-

zuto would have received from an independent expert. The

same is true of Dr. Koerner. Werner reported on Pizzuto's

temporal lobe origin seizures. Based in part on what she said,

defense counsel sought and obtained the appointment of

experts to consider whether Pizzuto was fit to stand trial. But

there is nothing to show that counsel were aware, or should

have been aware, of the existence of -- or the need for --

neuropsychological testing, because neither Dr. Werner, Dr.

White, nor Dr. Emery made any mention of it. Indeed, it was

Werner's opinion that Pizzuto's reported seizures were

pseudo, or pretended, and that no further studies were needed.

Before sentencing, counsel apparently asked Judge Rein-

hardt for permission to hire Emery for the purpose of testify-

ing at the sentencing hearing. The state district court's

Findings of Fact, Conclusions of Law and Order on the

amended petition for post-conviction relief refer to an April

14, 1986 letter from defense counsel to this effect. Although

the letter itself is not in the record, and Pizzuto now faults

trial counsel for having failed to request an independent

expert, his counsel represented to the Idaho Supreme Court in

their brief in support of a petition for rehearing that an inde-

pendent defense expert was requested both pre-trial and pre-

sentencing. There is no indication otherwise from trial coun-

sel. Accordingly, we lack any basis for supposing that a

request for an independent expert was not made, although it

obviously was not granted for sentencing. Emery was reap-

pointed, but he was neutral -- not independent. This means

that his report went directly to Judge Reinhardt and to the

prosecutor as well as to defense counsel.

Pizzuto relies on Ake v. Oklahoma , 470 U.S. 68 (1985), and

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990), for the

proposition that an indigent capital defendant has a right to

assistance of an independent psychiatric expert who does not

report to the court and the prosecutor. In Ake , the Court recog-

nized an indigent defendant's right to one independent expert

when the state makes mental condition relevant to culpability

and punishment, and to the testimony and assistance of a psy-

chiatrist when the state presents psychiatric evidence of future

dangerousness in a capital sentencing proceeding. Ake, 470

U.S. at 83-85. In Smith, we clarified that the Ake right is a

right to an independent, not neutral, psychiatrist. Smith, 914

F.2d at 1157. However, we need not decide whether Pizzuto

could succeed on an Ake claim, because Pizzuto's issue on

this appeal is ineffective assistance of counsel, not, as in

Smith, constitutional adequacy of the court's response to a

request for psychiatric testimony. He points to evidence in the

federal district court that a competent defense attorney would

have retained an independent expert in any case where the

defendant's mental state was at issue and his life was at stake;

however, this evidence (an affidavit from Katheryn L. Ross)

does not purport to be based on a review of the record in this

case or to express an opinion on the performance of defense

counsel in this case.

Pizzuto further cites counsels' failure to provide Emory

with prison records, and with the information needed to make

a complete diagnosis. However, there is no basis for conclud-

ing that further information would have made any difference

in the outcome. It is clear that Judge Reinhardt sentenced Piz-

zuto based on the planned, calculated and complex series of

acts that he found Pizzuto committed in conjunction with the

Herndon murders. The judge found that whether or not Piz-

zuto had a seizure disorder, it would not account for, or have

any bearing upon, the murders at Ruby Meadows. This is con-

sistent with what Dr. Werner opined, and her opinion in this

regard remains unchallenged. In sum, there is no evidence

that Pizzuto was suffering from an actual seizure, even if he

had a seizure disorder, when he went "hunting " for the Hern-

dons, tied them up, took their possessions, bashed their heads,

got help to bury them -- and told his friends and his sister

what he had done. Thus, even had defense counsel had the

benefit of an independent expert (such as Beaver or Merikan-

gas) for sentencing, the outcome would not have been differ-

ent.

Pizzuto suggests two other respects in which he was preju-

diced, but we are unpersuaded. First, he claims that Emery's

harmful conclusions were disastrous because thirteen of the

aggravating factors found by the sentencing court are trace-

able to Emery's testimony, e.g., that Pizzuto is manipulative,

deceitful, impulsive, unmotivated to change behavior, aggres-

sive, unable to tolerate ambiguity, antisocial, etc. However,

for reasons we have explained, each of these findings can be

disregarded because none has anything to do with statutory

aggravating circumstance (g)(2) -- that at the time Pizzuto

murdered Del Herndon, he also murdered Berta Herndon--

which Judge Reinhardt found that the mitigating circum-

stances did not outweigh.

Second, Pizzuto maintains that he was prejudiced by

Emery's assessment of future dangerousness in that Beaver's

more thorough report provides positive mitigating evidence

while Emery's produced exclusively aggravating evidence

upon which the trial court relied. The district court found that

the differences between them are inconsequential, and we

agree.

Beaver did not examine Pizzuto until eleven years after the

murders and his affidavit speaks as of 1996. Accordingly, his

opinion of dangerousness is qualified, and limited to "consid-

ering Mr. Pizzuto's age [40 in 1996] and in reviewing what

I know at this point [in 1996] about his conduct while in the

correctional facility, either in Michigan or Idaho. " In this con-

text, Beaver does not believe that if Pizzuto were to continue

(as of 1996) within the structure of a correctional facility, he

would pose a high risk to others; by the same token, if Pizzuto

continues on medication, has structure, and remains abstinent

from drugs or alcohol, he could function safely and adjust

appropriately. However, Beaver agrees with the concern

expressed in the original sentencing that Pizzuto in fact would

present a significant threat to others if he were placed in an

unstructured environment outside of the correctional system.

Emery's views came from two examinations that were con-

temporaneous with trial and sentencing. Emery did not see

evidence of remorse and believed at that time that Pizzuto was

a dangerous and violent individual. In his opinion, Pizzuto

was preoccupied with the "victim" world and only really

knows violence. Rehabilitation was not impossible, but "the

odds are not real high." "[I]n a highly structured situation

where he was given supervision, constraint, structure, guid-

ance, he could perform tasks." Emery also testified that were

things sufficiently structured and supervised, Pizzuto could

work in prison. He predicted that Pizzuto would find a place

within the prison hierarchy and to some extent would be a

victimizer and to some extent a victim. He wouldn't rule out

a religious conversion for someone like Pizzuto, which could

change attitudes, or improvement from psychotherapy, or

mellowing at the age of forty which, he explained, appears to

be the best tonic for antisocial personalities. Emery also

clearly attributed Pizzuto's behavior, including the murders,

to his childhood environment, a fact that Judge Reinhardt

found to be mitigating.

Although there are differences between the evaluations of

Emery and Beaver, we do not believe there is a reasonable

likelihood that the outcome would have changed if Beaver

had testified at sentencing. The prosecution could have called

Emery to testify regardless. Pawlyk v. Wood, 248 F.3d 815,

824 (9th Cir. 2001). Emery's testimony supports one of the

facts found in mitigation and reinforces the defense theory

that Pizzuto's abusive childhood was responsible for his adult

behavior. To the extent that Emery's testimony also strongly

supports facts found in aggravation, those facts are not preju-

dicial because they do not relate to statutory aggravating cir-

cumstance (g)(2). In any event, Beaver does not counter

Emery's testimony that Pizzuto's personality traits were not

going to change as a result of being in prison. At most, Beaver

offers a somewhat more optimistic prognosis for Pizzuto's

risk of danger to others in prison than Emery, but Beaver also

does not preclude the possibility of some risk even from his

vantage point of examining Pizzuto at 40. In these circum-

stances, and in light of all the other evidence about Pizzuto's

propensity for violence (including from his jailers), we cannot

see how Beaver's assessment would have added anything

meaningful to the mitigation mix before Judge Reinhardt.

D

Absence from Presentence Interview

Pizzuto argues that counsels' failure to attend or exercise

any control over the interviews by the Idaho presentence

report writer, Annette Jones, who administered no Miranda

warnings prior to the interviews, was ineffective and prejudi-

cial because Jones testified that Pizzuto was manipulative and

deceitful, minimized his guilt, and displayed no remorse. He

also maintains that the state district court's finding that Piz-

zuto has a propensity to commit murder was based on his con-

fession to a Seattle murder which was elicited at the

presentence interview. Taking the last point first, we disagree

that this could be the case because Judge Reinhardt struck any

reference to the Seattle murder from the presentence report

and explicitly stated in his ruling on Pizzuto's petition for

post-conviction relief that the murder charges in Washington

were not considered in his findings on the death penalty.

As we shall explain in Part IV, it is now the law of this cir-

cuit that the Fifth and Sixth Amendments apply to a presen-

tence interview in preparation for a capital sentencing

hearing. Hoffman v. Arave, 236 F.3d 523, 538, 540 (9th Cir.

2001). Nevertheless, we do not need to decide if Pizzuto's

counsel were deficient in retrospect, because he suffered no

prejudice.

Essentially everything in Jones's report or testimony was

already before the court, or not relied upon. Although Pizzuto

did not testify at either phase (he did make a statement, not

under oath, at sentencing), the statements Jones related that he

made to her were largely exculpatory and in any event, com-

port with overwhelming evidence which existed anyway. For

instance, she stated that Pizzuto admitted or claimed that he

tried to rob Crawford and Roberts -- but Crawford, Rice,

Odom and Lene Odom had all testified about Pizzuto's partic-

ipation in the plan to rob the fishermen. Further, there is no

indication that Judge Reinhardt relied upon what Jones said

Pizzuto said. Pizzuto told Jones that he helped bury the bodies

and divide the money because the others made him do it --

but Odom, Rice and Lene Odom all testified that he partici-

pated in the burial and distribution of cash. Jones stated that

Pizzuto admitted he robbed Bacon, dealt drugs, and acciden-

tally shot a man in Washington -- but Bacon testified how

Pizzuto robbed him, and Sgt. David Warrington testified to

statements that Pizzuto made about killing John Jones in

Washington on account of drugs. Also, there is no indication

that Judge Reinhardt relied on Pizzuto's statement, or his

involvement in drugs. Emery noted that Pizzuto had been

fired from three jobs -- but his ex-wife testified that he could

not hold onto a job. Although Pizzuto did not admit to the

murders and declined to talk about anything directly related

to them, Jones stated that he said he was making love to Lene

Odom at the time of the murders -- but there is no indication

that Judge Reinhardt gave any weight to this statement or its

apparent incredibility. Emery stated that Pizzuto said it would

have taken two people to tie up the Herndons unless you were

good at it with one hand -- but this is consistent with Pizzu-

to's theory that Odom and Rice did it and to the extent the

statement is inculpatory, Bacon testified to being tied up by

Pizzuto, Pizzuto's sister testified that Pizzuto admitted to

tying up people, Blumbaum testified to Pizzuto's admission

about binding ankles together, and Odom testified that the

Herndons were bound when he first saw them. Jones stated

her opinion that Pizzuto was manipulative, deceitful and

unremorseful -- but so did Emery, Blumbaum, Warrington,

and Angelinna Pizzuto. In addition, there was testimony from

Rice, Odom, Lene Odom, and his sister that Pizzuto bragged

about the murders, and photographs taken with the Herndons'

disc camera were received into evidence that show Pizzuto

posing for pictures of himself holding Delbert Herndon's gun.

Therefore, even without Jones's report and testimony, there

was ample basis for concluding that Pizzuto lacked remorse

and none for finding the opposite in mitigation. Finally, Piz-

zuto was not prejudiced because this evidence relates to other

factors or circumstances, but not to statutory aggravating cir-

cumstance (g)(2), which the court found alone outweighed the

mitigating evidence.

E

Using Prison Records

Pizzuto contends that his trial counsel had a duty to use his

Michigan prison record to demonstrate that he could be reha-

bilitated, had received good ratings for job performance, and

had no history of violence while there. While the prison

record shows that Pizzuto had fair to excellent ratings in his

job performance, it also indicates that he had numerous

"major misconducts" for "Threatening Behavior," "Unautho-

rized Occupation of a Cell," "Insolence" (twice), "Fighting,"

"Out of Place," "Disobeying a Direct Order, " "Dangerous

Contraband," "Attemp[ed] Escape," and"Contraband." These

major misconducts did not occur only at the beginning of Piz-

zuto's incarceration and taper off over time; rather, they took

place over a six year period. We cannot see how emphasizing

this record would have helped Pizzuto; regardless, counsel

presented the positive aspects of Pizzuto's Michigan incarcer-

ation at sentencing by introducing the affidavit of Russell

Clark, who supervised Pizzuto, to show that Pizzuto had been

productive, interested in his work, and performed his duties

well while working at a prison convenience store. Chenoweth

also elicited from Emery on direct-examination that Clark's

affidavit, which expressed the view that Pizzuto"is a produc-

tive person while in a structured environment," was "not con-

tradictory" with his opinion. Thus, counsels' treatment of the

Michigan record is a strategic decision that we will not second

guess. Strickland, 466 U.S. at 689.

F

Cross-examining Jail Guards

Pizzuto asserts that Chenoweth and Wayman should have

cross-examined Blumbaum because they had records showing

that he believed Odom was the least trustworthy of the three

(Pizzuto, Rice, and Bill Odom), there was no evidence that

Pizzuto had ever committed any of the acts that he told Blum-

baum about, and other jailers believed Rice to be the most

dangerous. As damaging as Blumbaum's testimony was, his

report shows that it could have been worse. While Blumbaum

believed that Odom was the "least trustworthy, " he also heard

Pizzuto threaten to kill his sister Angelinna. Blumbaum had

reported that he personally had "no hope of [Pizzuto's] ever

becoming a non violent member of society, short of a pre-

frontal lobotomy and castration, and that might not change

him sufficiently." Nor can we find where any of his jailers

said that Rice was the most dangerous; Blumbaum and Offi-

cers Nida, Deter, Engstli, Mencer, and Squires all reported

that Rice was cooperative, a good prisoner, remorseful, hon-

est, or pleasant, and no one said he was violent or dangerous.

In light of reports indicating that Pizzuto had threatened to

beat Nida's "head in with a shampoo bottle," had threatened

to break Deter's jaw, and had to be physically restrained from

attacking Blumbaum, it would have been foolhardy for coun-

sel not to let sleeping dogs lie.

G

Calling Pizzuto's Sister to Testify

Pizzuto argues that his trial counsel rendered ineffective

assistance by calling Angelinna Pizzuto to testify because her

testimony was similar to that of her sister, Toni, and putting

her on the stand exposed her to cross-examination that

brought out how Pizzuto had bragged about committing rob-

beries where he tied people up and shot a man. However, her

testimony in mitigation was a good deal more powerful, and

personal, than Toni's, and only she had visited Pizzuto in

prison. Her testimony directly supports one of the mitigating

circumstances found by the court -- that "[s]ome members of

the defendant's family have expressed concern for his well

being." Set against this, the negative aspects brought out on

cross-examination were already in the record. Two other wit-

nesses at sentencing testified that Pizzuto had shot someone

else: Warrington testified that Pizzuto claimed to have acci-

dently shot a man in Washington, and Roger Allen testified

that Pizzuto claimed to have shot someone off his motorcycle.

In addition, Bacon testified to being robbed and tied to a tree

by Pizzuto, who called himself a highwayman, and Blum-

baum testified to what Pizzuto told him about torturing people

by binding and beating their feet.

Counsels' decision was plainly strategic, and probably ben-

eficial overall. Regardless, there is no possibility that

Angelinna Pizzuto's unfavorable testimony uniquely influ-

enced Judge Reinhardt adversely at sentencing.

H

Allowing Pizzuto to Question Witnesses

Pizzuto argues that counsel has a duty to control the presen-

tation of evidence to prevent prejudicial events such as allow-

ing him to cross-examine his ex-wife. In his present view the

questions were abrasive and suggested that he was more inter-

ested in raking up old quarrels than saving his life. Pizzuto

correctly points out that there is no right to "hybrid" represen-

tation, United States v. Kienenberger, 13 F.3d 1354, 1356 (9th

Cir. 1994), but does not explain how counsel could have

stopped him from seeking permission from the trial court to

ask questions himself. Judge Reinhardt allowed him to do so,

after advising Pizzuto that he should let counsel handle the

entire examination. Even so, Pizzuto's inquiries of his former

wife were largely beside the point; inquiries he posed to his

sisters, on the other hand, were helpful as they elicited spe-

cific instances of childhood abuse without subjecting Pizzuto

himself to cross-examination.

I

Closing Argument

Pizzuto contends that counsels' closing argument at sen-

tencing was brief, failed to argue that the court could not find

the aggravating circumstances alleged beyond a reasonable

doubt, contained few specifics -- especially about the culpa-

bility of Rice, Odom and Lene Odom -- and had no overall

theme. It was certainly brief. However, argument was to the

same judge who presided over the trial and had heard closing

argument there that extensively explored credibility and rela-

tive culpability. Further, it is not appropriate to single out

counsels' oral presentation at the sentencing stage from other

measures taken on his behalf. "Under the Cronic test, it is the

totality of his efforts that we must examine, not just part of

them in isolation." Gerlaugh v. Stewart, 129 F.3d 1027, 1036

(9th Cir. 1997) (no ineffective assistance where counsel failed

to plead for leniency). In addition to what was done and

argued at trial, counsel challenged the Idaho procedure for

capital sentencing, moved to strike portions of the presentence

report, and presented percipient and psychological evidence

about Pizzuto's abusive childhood. Chenoweth's argument

made a plea for Pizzuto's life that was not without elegance;

he asked whether, regardless of the jury verdict, some doubt

did not linger in the judge's mind about the roles of the people

in the event at Ruby Meadows; he invited Judge Reinhardt to

consider whether there was something salvageable about Piz-

zuto in light of Dr. Emery's testimony that Pizzuto's worst of

all childhood experiences was responsible for his behavior as

an adult; he called for forgiveness for that, and for Pizzuto's

suffering over the years; he noted the hope that Pizzuto's aunt

held for him; he pointed out that Pizzuto was a victim of the

system, his parents, and himself; and he asked for mercy.

Based on our review of all the proceedings, and given the

state's overwhelming evidence in aggravation together with

the limited mitigating evidence available to the defense, we

are confident that a longer or more detailed discourse would

have made no difference.

J

Failure to Prepare

Pizzuto asserts that trial counsel generally failed to prepare

for the sentencing hearing by failing to obtain a mitigation

expert, an investigator, or an independent mental health

expert, and by failing to attend or prepare Pizzuto for the pre-

sentence interviews. Essentially the contention is that the

choices of counsel who are so unprepared cannot be defended

as "strategic" under Strickland. However, Pizzuto does not

suggest what additional evidence would have been discovered

with more preparation and investigation, or how it might have

affected the outcome.

Pizzuto's counsel were faced with evidence that Pizzuto

committed brutal murders after binding his victims and tortur-

ing Delbert Herndon by making him drop his pants and crawl

around the cabin, then bragging about what he did. Beyond

this, Pizzuto had attempted to commit another robbery just

prior to the Herndon murders, committed another robbery

almost immediately thereafter, and shot a man in Washington.

He admitted to other shootings and robberies. And all of this

occurred only a year after he had been released from prison

on a rape conviction. A good deal of evidence in mitigation

was developed from Pizzuto's family and Dr. Emery. No

doubt counsel could have done more; more is always possible.

But we cannot see any reasonable probability that more in this

case would have led to a different sentence.

III

Pizzuto argues that counsel were ineffective on direct

appeal to the Idaho Supreme Court because their"Statement

of Facts" failed to highlight any of the facts which showed

Rice and Odom to be incredible or any of the evidence which

militated against the existence of aggravating circumstances

or supported the inference that Pizzuto was less culpable than

the state contended. Claims of ineffective assistance on appeal

are also governed by the Strickland standard. Smith v. Rob-

bins, 528 U.S. 259, 285 (2000).

While the Statement of Facts did not go into detail about

inconsistencies or impeachment, it was accurate, consistent

with the trial testimony, and sufficient to alert the court that

Rice and the Odoms were actively involved in the crime. Fur-

ther, it is obvious from its opinion that the Idaho Supreme

Court thoroughly reviewed the record and understood all the

facts. Pizzuto I, 810 P.2d at 686-88. Finally, on this appeal,

Pizzuto does not suggest any issues that could have been

raised on direct appeal, but were not, that would have pro-

vided grounds for reversal. Wildman v. Johnson , 261 F.3d

832, 840 (9th Cir. 2001). Consequently, he has not shown

prejudice.

IV

Pizzuto submits that his death sentence must be vacated as

the state district court improperly relied on statements

obtained during Idaho and Michigan presentence interviews

that were conducted without Miranda warnings or the assis-

tance of counsel. The Idaho report was prepared by Annette

Jones of the Idaho Division of Probation and Parole in con-

nection with Pizzuto's conviction for the Herndon murders;

the Michigan report related to Pizzuto's 1975 conviction for

rape, and was prepared by Michael Berro of the Michigan

Department of Corrections.

Since the federal district court's decision in these

habeas proceedings, we held in Hoffman v. Arave , 236 F.3d

523 (9th Cir. 2001), that the Fifth and Sixth Amendments

apply to presentence interviews in capital cases. Hoffman

clearly controls with respect to Pizzuto's Idaho interview

unless, as the state argues, it was implicitly overruled by the

subsequent decision of the United States Supreme Court in

Penry v. Johnson, 121 S.Ct. 1910 (2001). In Penry, state-

ments from an uncounseled and non-Mirandized psychiatric

interview were admitted into evidence. As AEDPA applied to

Penry's petition, the question was whether the state court's

decision was contrary to or an unreasonable application of

Supreme Court precedent. The relevant precedent was Estelle

v. Smith, 451 U.S. 454 (1981), where the Court held that a

criminal defendant who neither initiates a psychiatric evalua-

tion nor attempts to introduce any psychiatric evidence may

not be compelled to respond to a psychiatrist if his statements

can be used against him in a capital sentencing proceeding.

The Court concluded that there were substantial differences

between Penry's case and Estelle; that Estelle had never been

extended beyond its particular facts; therefore, it was not

objectively unreasonable for the Texas court to conclude that

Penry was not entitled to relief on his Fifth Amendment

claim. Unlike Penry, AEDPA does not govern Pizzuto's case.

Thus, Penry is not squarely on point and does not overrule or

undermine Hoffman such that we could ignore Hoffman's pre-

cedential effect. Accordingly, Pizzuto's Fifth and Sixth

Amendment rights were violated by use of uncounseled, non-

Mirandized statements against him.

However, for reasons we discussed in Part II-D, admis-

sion of the Jones report and receipt of her testimony did not

have a "substantial and injurious effect" on the sentence.

Penry, 121 S.Ct. at 1919-20 (noting that error in using report

would justify overturning sentence only if petitioner could

establish that it was not harmless under Brecht v. Abraham-

son, 507 U.S. 619 (1993)).

Admission of the Michigan report presents a different

issue, as it was prepared in 1975 in connection with a non-

capital proceeding. Routine, non-capital presentence inter-

views are not the type of situation in which Miranda warnings

or counsel are required for purposes of the Fifth or Sixth

Amendments. Baumann v. United States, 692 F.2d 565, 577

(9th Cir. 1982). But we need not resolve whether Estelle or

Hoffman apply, or whether applying either would be Teague 4

barred because the error, if any, was harmless. Although

Berro testified that Pizzuto threatened him on account of his

being involved in Pizzuto's sentence for rape, and that Pizzuto

claimed to have Mafia connections, Blumbaum also testified

that Pizzuto threatened to "take care of" his jailers and their

families, and Pizzuto's former wife testified that he had

_________________________________________________________________

4 Teague v. Lane , 489 U.S. 288 (1989) (new rules of law, not dictated

by precedent existing at the time the defendant's conviction became final,

may not be announced in collateral proceedings).

threatened to kill her, the judge, and Berro for their roles in

his Michigan incarceration. Blumbaum further testified that

Pizzuto told him he was related to the Mafia, and his ex-wife

testified that Pizzuto told her that he was "either the fourth or

fifth generation to Al Capone." In short, there was over-

whelming other evidence that Pizzuto had threatened harm

and claimed a relationship with the Mafia, so if there were

error in admitting the Michigan presentence report, it was

unquestionably harmless.

V

Pizzuto argues that the trial court relied upon an unconstitu-

tionally vague sentencing factor -- that "the murder was

especially heinous, atrocious or cruel, manifesting exceptional

depravity," Idaho Code § 19-2515(g)(5) -- which the Idaho

Supreme Court has not adequately narrowed. However, we

addressed a similar issue in Hoffman and concluded that any

error was harmless. There, as here, the petitioner's sentence

was supported by other constitutional aggravating circum-

stances, and the trial court had determined that each aggravat-

ing circumstance, standing alone, outweighed the mitigating

evidence. Pizzuto contends that a resentencing is required not-

withstanding Hoffman, as he has challenged every statutory

aggravating circumstance on the grounds that the aggravating

factors were not supported by the evidence and that the miti-

gating evidence weighed against each aggravating circum-

stance omitted important mitigating evidence. We have

already explained why we disagree. The evidence supporting

statutory circumstance (g)(2) was overwhelming and no mate-

rial mitigating evidence was left out.

VI

Pizzuto contends that the proportionality review of his sen-

tence violated due process and was not performed in good

faith despite a statutory obligation to do so. At the time of

Pizzuto's sentencing, Idaho Code § 19-2827(c)(3) required

the Idaho Supreme Court to determine "[w]hether the sen-

tence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant."

Pizzuto faults the court for reviewing a floating universe of

capital cases, for focusing on those in which the death penalty

has been imposed, and for incorrectly determining in which

other cases the death penalty has been imposed and approved.

The criticism appears well taken, but Pizzuto has not shown

that "the review was so inadequate that [he ] was essentially

deprived of any review." Rupe v. Wood, 93 F.3d 1434, 1443

(9th Cir. 1996). In Pizzuto I, the supreme court examined the

proportionality of Pizzuto's sentence by considering"(1) the

nature of, and the motive for, the crime committed; (2) the

heinous nature of the crime; and (3) the nature and character

of the defendant to determine whether the sentence was pro-

portionate and just." Pizzuto I, 810 P.2d at 716. The court

compared Pizzuto's crime to over thirty other first degree

murder cases and found it similar and proportional to State v.

Lankford, 747 P.2d 710 (Idaho 1987), which affirmed the

death penalty for a defendant who, with an accomplice beat

two campers to death with such force that their skulls had to

be reconstructed by an anthropologist. Thus, we cannot say

that Pizzuto failed to get any review. This being so, there is

no constitutional violation because "due process will not rec-

ognize a less egregious injury." Rupe, 93 F.3d at 1443.

Nor does Pizzuto have a basis for claiming that the review

was not in good faith, other than to say that the court does not

always look at the same cases and all members of the court

don't always agree on which ones to consider. However, we

do not review for errors of state law, Campbell v. Blodgett,

997 F.2d 512, 522 (9th Cir. 1992), cert. denied , 510 U.S.

1215 (1994), and the constitution does not require us to look

behind the Idaho Supreme Court's conclusion that Pizzuto's

sentence was proportional to the sentences imposed in cases

similar to his so long as he was not deprived of any review

at all. Walton v. Arizona, 497 U.S. 639, 656-57 (1990).

Accordingly, we decline to construct a universe of cases or

conduct a de novo comparison of Idaho cases with the facts

of this case. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1308-

09 (9th Cir. 1996).

Pizzuto also maintains that the Idaho Supreme Court

engaged in inaccurate fact finding, further undermining confi-

dence in its proportionality review, when it noted that "at the

sentencing hearing the evidence included two outstanding

warrants for the arrest of Pizzuto charging him with first

degree murder in connection with two murders in the state of

Washington." Pizzuto I, 810 P.2d at 712. However, we do not

read the court's proportionality analysis as relying on these

facts; rather, the supreme court mentioned the warrants in its

discussion of whether there was sufficient evidence to support

the statutory aggravating circumstance of propensity to com-

mit murder, Idaho Code § 19-2515(g)(8).

Finally, Pizzuto contends that he was denied due process

because one of the factors considered by the Idaho Supreme

Court was "the heinous nature of the crime," which, in his

view, rests on an unconstitutionally vague definition because

he believes that the statutory aggravator, "especially heinous,

atrocious or cruel, manifesting exceptional depravity," is

unconstitutionally vague. Even if the statutory aggravating

circumstance were unconstitutionally vague for purposes of

adequately channeling a sentencer's discretion (an issue we

do not reach), it does not mean that considering how"hei-

nous" the nature of a crime is somehow makes that criterion

unconstitutionally vague for purposes of comparing the sen-

tence imposed in one case with others.

VII

Pizzuto asserts that the trial court's reliance on his low

intelligence, lack of education, and limited vocational skills;

assertion of his right not to incriminate himself; and mental

disorders produced by the abuse he suffered as a child as sup-

port for imposing the death penalty violates the Eighth

Amendment. Relying on Clemons v. Mississippi, 494 U.S.

738, 752 (1990), and Beam v. Paskett, 3 F.3d at 1311, he

points out that when an invalid aggravating factor has been

weighed in the balance, reweighing is required. Further, he

contends that the trial court failed to recognize that some of

these circumstances should have been considered in mitiga-

tion. In his view, this makes the court's ultimate determina-

tion unreliable.

We need not decide whether these particular characteristics

of Pizzuto make a " `measurable contribution to acceptable

goals of punishment,' " Beam , 3 F.3d at 1308 (quoting Coker

v. Georgia, 433 U.S. 584, 592 (1977)), because even assum-

ing they do not, there is no basis for vacating Pizzuto's sen-

tence. As we have explained, statutory aggravating

circumstance (g)(2) alone suffices, and it is not supported by

the offender characteristics about which Pizzuto complains.

Cf. Beam , 3 F.3d at 1311 (reweighing required because

improper aggravating evidence supported all of the aggravat-

ing circumstances found by the trial court).

Nor must the writ be granted for the trial court to reweigh

Pizzuto's personal characteristics as mitigating circumstances

against the statutory and non-statutory aggravating factors.

Pizzuto contends that his mental and emotional deficits, lack

of education and skills, and experience of abuse as a child

should have been considered as mitigating factors. There is no

question that such evidence of background and character is

relevant, Penry, 121 S. Ct. at 1920, but Judge Reinhardt did

not refuse to consider these things. He specifically stated that

he considered all relevant evidence in mitigation and aggrava-

tion. Having considered all the evidence, the judge was not

obliged to find it mitigating; he was "free to assess how much

weight to assign to such evidence." Ortiz v. Stewart, 149 F.3d

VIII

Pizzuto contends that he is entitled to an evidentiary hear-

ing on his claims of ineffective assistance of counsel at trial

and sentencing, that he was denied an impartial judge, and

that the trial judge improperly relied on undisclosed informa-

tion at sentencing. The district court meticulously went

through every one of Pizzuto's claims. To help it decide

whether Pizzuto was entitled to an evidentiary hearing on any

of the grounds in his petition, the court ordered him to make

an offer of proof regarding extra-record evidence which he

would seek to present through such a hearing. Pizzuto submit-

ted substantive affidavits from Beaver, Ross, and himself.

Having considered them along with everything in the record,

the court concluded that there is no reasonable probability that

Judge Reinhardt, absent the alleged errors by defense counsel,

would have found the balance of aggravating and mitigating

circumstances did not warrant death; thus, Pizzuto failed to

make a colorable claim warranting an evidentiary hearing. It

found that Pizzuto could not establish prejudice on his trial

claims either, as there is not a reasonable probability a differ-

ent outcome would have resulted had the jury heard evidence

that Pizzuto suffered from a seizure or other psychological

disorder. It held that Pizzuto procedurally defaulted his claim

of judicial bias, and failed to show either cause or prejudice

to excuse it. Finally, the district court held that neither discov-

ery nor an evidentiary hearing was justified on the strength of

Pizzuto's unsupported and speculative assumptions that the

sentencing judge relied on information that Pizzuto didn't

know about.

Prior to AEDPA, the rule was:

"A habeas petitioner is entitled to an evidentiary hearing on a claim if `(1) the petitioner's allegations, if proved, would entitle him to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.' " Hen- dricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992). No hearing is required if "there are no dis- puted facts and the claim presents a purely legal question." Id.

Williams , 52 F.3d at 1484. We have also recognized that "[i]n a capital case, a habeas petitioner who asserts a colorable claim to relief, and who has never been given the opportunity to develop a factual record on that claim, is entitled to an evi- dentiary hearing in federal court." Smith v. Stewart, 241 F.3d 1191, 1197-98 (9th Cir. 2001) (quoting Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir. 1994)). However, this does not establish a per se rule requiring an evidentiary hearing; rather, a petitioner must establish that his allegation of ineffective assistance, if proven, would establish both deficient perfor- mance and prejudice. Babbitt v. Calderon, 151 F.3d 1170, 1177 (9th Cir. 1998). Pizzuto had an evidentiary hearing in connection with his motion for post-conviction relief, but has not had one specifically with respect to his ineffective assis- tance claims. Nevertheless, a more developed factual record is not necessary given Pizzuto's offer of proof, evidence adduced in post-conviction proceedings, and the state trial court's rulings in those proceedings.

_________________________________________________________________

A

With respect to sentencing, Pizzuto argues that his affida-

vits are unrefuted; the record shows counsel acted on insuffi-

cient information and offers no support for their choices being

strategic; and he has demonstrated how the defects led to the

death sentence. We have already discussed why Pizzuto has

not shown prejudice even fully crediting Beaver's affidavit;

Ross's affidavit states general propositions about good law-

yering that do not require an evidentiary hearing to explore.

Beyond this, Pizzuto points to no additional evidence that

would be presented if an evidentiary hearing were held or

how it would change the outcome at the sentencing hearing.

B

With respect to the guilt phase, Pizzuto claims that his

counsel only realized shortly before trial that Rice and the

Odoms would be key witnesses against Pizzuto; that they

made no effort to investigate Bacon; that the record does not

show they tried to develop or obtain mitigating evidence

about Pizzuto; that they failed to obtain assistance of an inde-

pendent mental health expert or consult with anyone about

whether any kind of mental defense was possible; and that

nothing shows that they considered how Pizzuto might escape

a conviction under Idaho's accomplice liability law. He sub-

mits that it is impossible to evaluate the impact of defense

counsels' deficiencies without an evidentiary hearing, noting,

for example, that had they been more on top of things they

might have pursued a negotiated resolution short of trial.

It is true that trial counsel did consider Pizzuto's trial an

"everyday ordinary" trial until they received notice of the

state's intent to seek the death penalty. But Chenoweth was

an experienced trial lawyer and "[i]t is well established that

an ineffective assistance claim cannot be based solely on

counsel's inexperience" in capital cases. Ortiz v. Stewart, 149

F.3d 923, 933 (9th Cir. 1998). Pizzuto does not show how

counsels' preparation would have been different, or how dif-

ferent preparation would have changed the outcome of the

trial. They had prior statements and transcripts of the guilty

pleas of the Odoms and Rice, and Pizzuto suggests nothing

more that more investigation would have produced. Ortiz, 149

F.3d at 933 (ineffective assistance claim lacks merit when

petitioner fails to specify what further investigation would

uncover); Ceja v. Stewart, 97 F.3d 1246, 1255 (1996) (claim

fails without explanation of what compelling evidence addi-

tional investigation would have turned up). Counsel had a via-

ble theory of defense -- that Rice and Odom did it, and

framed Pizzuto -- which counsel developed by evidence of

the pair's prior relationship, inconsistent statements, and prior

criminal histories.

We have discussed why Pizzuto was not prejudiced at sen-

tencing by his counsels' failure to obtain an independent

expert who would have testified along the lines of Dr. Bea-

ver's affidavit. For the same reasons, there is no reasonable

probability that testimony as set out in his affidavit would

have altered the jury's verdict. In addition, there is nothing to

show that counsel were aware (or should have been aware)

prior to trial of the need for further investigation, testing or

consultation based on what they had been told by Dr. Werner,

Dr. White and Dr. Emery. See, e.g., Murtishaw v. Woodford,

255 F.3d 926, 945 (9th Cir. 2001) (no ineffective assistance

when nothing suggests experts requested information); Hen-

dricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995).

Because Pizzuto points to nothing substantial on any

score that further investigation or preparation would have pro-

duced, there is nothing to resolve and thus no reason for an

evidentiary hearing.

C

Pizzuto relies on unrebutted affidavits from his mother,

father and sister averring that, at the start of the trial, Judge

Reinhardt told Mrs. Pizzuto "[y]our son is a murderer -- get

it through your head -- we're going to burn his ass" to argue

that he should have an evidentiary hearing on his claims of

judicial bias. Pizzuto asserts that one of his trial lawyers, Nick

Chenoweth, who also represented him at sentencing, on

appeal, and in consolidated post-conviction relief proceed-

ings, was present when the comments were made. Pizzuto

first raised the claim of judicial bias in his second and third

petitions for post-conviction relief; in them, he explained that

he had not done so earlier because he was unaware of the

claims, and his lawyer's relationship with the trial judge cre-

ated an actual conflict of interest sufficient to excuse the

default. In both instances, the trial court and Idaho Supreme

Court held that the claims were procedurally defaulted

because they were known or reasonably should have been

known at the time Pizzuto brought his first petition. Pizzuto

II, 903 P.2d at 60; Pizzuto III, 10 P.3d at 744-45.

Pizzuto maintains that he has shown both cause and preju-

dice for failing to raise the issue in his first petition. If so, the

procedural default would be excused. Poland v. Stewart, 117

F.3d 1094, 1105 (9th Cir. 1997). "A showing of cause `must

ordinarily turn on whether the prisoner can show that some

objective factor external to the defense impeded counsel's

efforts to comply with the State's procedural rule.' " Id. (quot-

ing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Thus,

cause is an external impediment such as government interfer-

ence or reasonable unavailability of a claim's factual basis.

Martinez-Villareal, 80 F. 3d at 1305 (citing McCleskey v.

Zant, 499 U.S. 467, 497 (1991)).

Pizzuto argues that proper resolution of the "cause" issue

depends on the nature of the relationship between Chenoweth

and Judge Reinhardt, as well as whether Chenoweth was

aware of Judge Reinhardt's remarks. He relies on the Elev-

enth Circuit's decision in Porter v. Singletary , 49 F.3d 1483,

1489-90 (11th Cir. 1995), to urge that he is entitled to an evi-

dentiary hearing because his witnesses' sworn allegations are

unrefuted. However, the evidentiary hearing ordered in Porter

was based on a far different set of facts. Seventeen years after

the statement was made, the Clerk of Court called Porter's

counsel with information that the judge who presided at Por-

ter's trial had said to him before trial that he had changed

venue from one county to another in part because the county

of transfer "had good, fair minded people here who would lis-

ten and consider the evidence and then convict the son-of-a-

bitch." Then the judge said, "he would send Porter to the

chair." There was recent corroboration for this evidence of

predisposition from comments the judge made to news report-

ers. In these circumstances, the court of appeals was per-

suaded to order an evidentiary hearing on whether Porter had

established cause to excuse having procedurally defaulted the

issue. An officer of the court had come forward sua sponte

with specific and ostensibly reliable evidence that the judge

had a fixed predisposition to sentence Porter to death if he

were convicted, and the remarks that the clerk reported were

unanticipated and unpredictable. Here, Pizzuto could reason-

ably have obtained knowledge of what Judge Reinhardt alleg-

edly said, because if the judge made the comments attributed

to him, they were made to Pizzuto's family.

In any case, Pizzuto has not shown cause arising out of

Chenoweth's relationship with Judge Reinhardt. Pizzuto's

affidavit indicates that the two had taken vacations together

and that Judge Reinhardt once worked for Chenoweth. On

account of this relationship, Pizzuto reasons, Chenoweth was

inhibited from challenging the judge's partiality. However,

Pizzuto does not show how this kind of relationship amounts

to an actual conflict of interest such that counsel would not

have challenged Judge Reinhardt's behavior. See Cuyler v.

Sullivan, 446 U.S. 335, 345-50 (1980); see also Barnhill v.

Flannigan 42 F.3d 1074, 1077-78 (7th Cir. 1994) (noting the

general rule that an attorney's actual conflict can be sufficient

cause to excuse a procedural default, but holding no actual

conflict shown by allegation that public defender on appeal

refrained from raising ineffectiveness of trial counsel who

was also a public defender). In fact, Pizzuto's counsel moved

for a new trial and to disqualify Judge Reinhardt from partici-

pating in further proceedings based on a charge of judicial

misconduct, and challenged Judge Reinhardt's lack of partial-

ity during the sentencing phase in Pizzuto's amended first

petition for post-conviction relief. If counsel had truly been

conflicted, they would not have taken either step. As we can-

not presume that a conflict exists where none is demonstrated,

see Cuyler, 446 U.S. at 347-48, Pizzuto has failed to establish

cause.

D

Pizzuto lastly contends that the district court erred by deny-

ing relief without holding an evidentiary hearing or granting

discovery on his claim that the sentencing judge improperly

relied on undisclosed information in imposing his death sen-

tence, and was privy to additional information, both on and

off the record, from his presiding over Rice's and Odom's

prosecutions. But Pizzuto has not shown that Judge Reinhardt

relied on any evidence outside of the record. Rather, he faults

the judge for not revealing what information he had before

him and what, if any, consideration he gave to it; by failing

even to mention Rice and the Odoms, Pizzuto suggests, the

court shielded from review the impact of any knowledge it

received while presiding over their cases. While Judge Rein-

hardt did not give a detailed list of what he relied on in sen-

tencing, he did state that he was considering such evidence

and arguments as were presented at the sentencing hearing

and at trial, and there is no indication in his order, or in the

record generally, that he considered more than that. Cf. Gard-

ner v. Florida, 430 U.S. 349 (1977) (vacating death sentence

because the trial court's findings relied upon a presentence

report part of which was not disclosed to the defense); Correll

v. Stewart, 137 F.3d 1404, 1416 (9th Cir. 1998) (no Gardner

error when judge does not rely on ex parte communication in

sentencing); Paradis v. Arave, 20 F.3d 950, 956-57 (9th Cir.

1994) (no showing that judge relied on undisclosed material

when he listed things he would consider and co-defendant's

in-camera submissions and evidence from his trial were not

referred to). We agree with the district court that there is no

basis for an evidentiary hearing.

IX

In a supplemental brief filed after the decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000), was rendered, Pizzuto

contends that it overrules Walton v. Arizona, 497 U.S. 639

(1990), and that he was therefore unconstitutionally deprived

of his right to have a jury, rather than a judge, determine his

sentence. We have already held "that while Apprendi may

raise some doubt about Walton, it is not our place to engage

in anticipatory overruling. The Supreme Court has specifi-

cally directed lower courts to `leav[e] to this Court the prerog-

ative of overruling its own decisions.' " Hoffman, 236 F.3d at

542 (brackets in original, quoting Agostini v. Felton, 521 U.S.

203, 207 (1997)). Therefore, this argument is foreclosed.

CONCLUSION

We conclude that Pizzuto has failed to demonstrate defi-

cient performance and actual prejudice for his ineffective

assistance of counsel claims at sentencing and on direct

appeal. Although his Idaho presentence interview violated

Pizzuto's Fifth and Sixth Amendment rights, the error with

respect to it and his Michigan presentence interview had no

substantial and injurious effect on the sentence and is there-

fore harmless. Likewise, it is immaterial whether the trial

court may have relied upon one unconstitutionally vague sen-

tencing factor because it determined that each remaining stat-

utory aggravating circumstance outweighed the mitigating

evidence. We cannot say that the Idaho Supreme Court failed

to give Pizzuto any proportionality review, thus his rights to

due process were not violated. The state trial court considered

all evidence in mitigation and aggravation and did not refuse

to consider personal characteristics in mitigation. Pizzuto is

not entitled to an evidentiary hearing on his claims for inef-

fective assistance at trial and sentencing, judicial bias, or reli-

ance by the court on undisclosed information at sentencing.

Finally, Pizzuto was not unconstitutionally deprived of any

right to have a jury, rather than a judge, determine his sen-

tence.

AFFIRMED.

_________________________________________________________________

B. FLETCHER, Circuit Judge, concurring in part and dissent-

First, I object to the premature filing of this opinion. The

Supreme Court has granted certiorari in Arizona v. Ring, 25

P.3d 1139 (Ariz. 2001), to decide whether Apprendi v. New

Jersey, 530 U.S. 466 (2000), overrules Walton v. Arizona, 497

U.S. 639 (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 man-

date, 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, all to no purpose since

the opinion has no precedential value until the mandate issues.

While I express no opinion on the Apprendi claim pending

the resolution of Ring, I am compelled currently to express

my opinion on Pizzuto's remaining claims some of which

may be rendered moot. With that caveat, 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, atro-

cious, or cruel" aggravating factor, and the trial court's reli-

ance on unconstitutional, non-statutory aggravating factors.

I.

Ineffective Assistance at Sentencing

As the majority correctly explains, under Strickland v.

Washington, 466 U.S. 668 (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

there is a reasonable probability that, but for counsel's unpro-

fessional errors, the sentencer would have concluded that the

balance of aggravating and mitigating circumstances did not

warrant death. Id. at 694-95. "A reasonable probability is a

probability sufficient to undermine confidence in the out-

come." Id. at 694. Notably, the Supreme Court has made clear

that prejudice for ineffective assistance need not be estab-

lished by a preponderance of the evidence. Id. ("The result of

a proceeding can be rendered unreliable, and hence the pro-

ceeding itself unfair, even if the errors of counsel cannot be

shown by a preponderance of the evidence to have determined

the outcome.").

The majority concludes that Pizzuto has failed to satisfy

this two-prong test. However, to reach this conclusion, the

majority relies on unsupported rationalizations and refuses to

view the deficiencies asserted by Pizzuto as a whole. In view

of all the deficiencies, defense counsel's representation fell

below "an objective standard of reasonableness . . . under pre-

vailing professional norms," and there is a reasonable proba-

bility that, but for their errors, Pizzuto would have been

sentenced to life rather than death. Id. at 688.

1867

A

Failure to Challenge the State's Case in Aggravation

Under Idaho's capital sentencing law, a defendant con-

victed of first degree murder may not receive the death pen-

alty unless the State establishes at least one of ten aggravating

circumstances beyond a reasonable doubt. Idaho Code§19-

2515 (1984). Pizzuto's defense counsel, two attorneys wholly

inexperienced in capital cases, failed to fulfill their constitu-

tional duty to subject the State's case in aggravation to the

meaningful adversarial testing that ensures a just result.

Strickland, 466 U.S. at 686 ("[C]ounsel's role in [a capital

sentencing] proceeding is . . . to ensure that the adversarial

testing process works to produce a just result.").

Evidence was readily available to cast doubt on the exis-

tence of some of the aggravating factors asserted by the State.

For example, the trial judge put particular emphasis on the

fact that Pizzuto tied the victims before killing them in finding

that the murders were "heinous, atrocious, and cruel" and

demonstrated an "utter disregard for human life." 1 Yet Rice

testified that he did not see the victims tied when he went into

the cabin and shot Mr. Herndon, and Odom testified that he

saw them tied up only after he had divided up the money and

returned to the victims' cabin to dispose of the bodies. Also,

the pathologist testified that he could not determine whether

the bodies had been tied before or after death.

The majority argues that other evidence was sufficient to

convince the trial court that Pizzuto had tied the Herndons

_________________________________________________________________

1 The trial judge also noted, in his finding that the murder was heinous,

atrocious, and cruel, that Pizzuto forced Mr. Herndon to drop his pants and

crawl into the cabin. However, in deciding that the crimes displayed an

utter disregard for human life, the trial judge's entire focus was on the fact

that Pizzuto had tied the victims before killing them, so they presented "no

threat to his safety or to his escape from the scene." Findings of the Idaho

Dist. Ct. at 5.

prior to killing them. Pizzuto's sister testified that he bragged

about tying up a man and woman and shooting the man;

Roger Bacon testified that Pizzuto had tied him up and robbed

him; and Lt. Paul Blubaum testified that Pizzuto told him he

could get anything out of anyone by tying their ankles and

then beating the bottom of their feet. However, the State's cir-

cumstantial evidence was not so overwhelming in light of the

evidence that was available to the defense on this issue.

Defense counsel might have raised a reasonable doubt in the

trial judge's mind had they reminded the court of Odom, Rice,

and the pathologist's testimony. 2

Also, the State's theory that Pizzuto deserved the death

penalty while his co-defendants did not depended primarily

on the story told by Rice and Odom at trial. Therefore,

defense counsel should have referenced the evidence from the

guilt phase that showed Rice and Odom were not credible wit-

nesses. During the guilt phase, defense counsel demonstrated

that Rice and Odom had criminal records and used drugs.

Defense counsel also exposed numerous inconsistencies in the

stories told by Rice and Odom. They contradicted each other

on many details such as the number of thumps they heard

while Pizzuto was in the cabin and whether Pizzuto was wear-

ing or carrying Mr. Herndon's boots when he emerged.

Rice and Odom gave conflicting testimony accusing each

other of acts that each denied. Odom testified that prior to the

murders Rice said he was going to dig graves. According to

Odom, Rice tried to make him shoot Mr. Herndon in the head,

and Rice complained that Mrs. Herndon was killed before he

could have sex with her, which Rice denied. Odom accused

Rice of taking money from Mrs. Herndon's purse, which Rice

also denied. Rice, in turn, gave testimony that prior to the

_________________________________________________________________

2 The majority also asserts that tying the victims after the murders is

countersensical. However, it is not apparent how Pizzuto could have tied

both victims by himself if they were alive at the time and he was alone

as Rice and Odom contended.

murders Odom suggested they jump a mining claim, kill the

miner, and bury the body. He also testified that Odom held a

gun on him and that Odom bragged, "That's the way they do

things here in Idaho," after the murders.

In the guilt phase, defense counsel also demonstrated that

Rice had lied repeatedly to the police. At various times, Rice

(1) denied any involvement in the murders, (2) admitted to

hitting Mr. Herndon in the head with a hammer, and (3)

admitted to shooting Mr. Herndon. In his statements to the

police, Rice repeatedly said that "they" committed the mur-

ders. He conceded that his statements to the police were not

true, but he could not explain why he used the word"they"

when talking about who committed the murders.

Additionally, evidence not introduced at the guilt phase

was available to show Rice and Odom lacked credibility.

There was evidence that Odom said to an acquaintance, after

the murders but before the arrests, "Where I come from, when

we find a narc, we just take them out and make them dig their

own grave," and that Rice's lie detector test indicated he lied

when he said he had no advance knowledge of the murders. 3

Defense counsel also possessed records showing that Lt.

Blubaum, a prosecution witness, believed Odom was the least

trustworthy of the three co-defendants. However, defense

counsel did not bother to cross-examine Lt. Blubaum at all

and failed to present available evidence that other jailers

believed Odom was more dangerous than Pizzuto, was a

manipulator, had no remorse for the murders, and felt he had

beaten the system. Such evidence would have defused Lt.

_________________________________________________________________

3 Polygraph evidence would have been admissible as relevant mitigating

evidence for Pizzuto's sentencing hearing. See Rupe v. Wood, 93 F.3d

1434, 1441 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (reversing

death sentence because trial court excluded polygraph evidence of an

accomplice that was relevant to the question of what role the accomplice

truly played in the crimes).

Blubaum's testimony and cast more doubt on the credibility

of Odom.

The majority argues that defense counsel's failure to cross-

examine Lt. Blubaum and examine the other jailers was a

strategic choice. Putting the other jailers on the stand may

have elicited more damaging testimony than good, but Lt.

Blubaum had already given his most damaging testimony. Lt.

Blubaum testified that Pizzuto had intimidated jailers, talked

continually about sex and violence, and bragged about tortur-

ing people by tying up their feet and beating their swollen feet

and putting snakes in mailboxes to bite people. Defense coun-

sel's failure to cross-examine him after this testimony cannot

be dismissed as a strategic choice under these circumstances.

Finally, defense counsel should have highlighted for the

trial judge the difference between the Bacon robbery and the

Herndon murders. Specifically, they should have noted that,

when Pizzuto robbed Roger Bacon, he was alone and did not

harm him. This evidence suggests that the presence of Rice

and Odom was key in the murder of the Herndons and implies

that the co-defendants were more involved than their testi-

mony indicated. The majority attempts to rationalize its con-

clusion that Pizzuto was not prejudiced by counsel's failure to

present this evidence by arguing that neither Rice nor Odom

was present inside the cabin when Pizzuto struck the Hern-

dons. The majority's argument assumes that Rice and Odom's

testimony was truthful, but the point of presenting this evi-

dence suggests that their version of the murders was not truth-

ful.

There is no tactical reason why defense counsel would have

chosen not to call the sentencing judge's attention to this evi-

dence. See Ainsworth v. Woodford, 268 F.3d 868, 874 (9th

Cir. 2001) (finding ineffective assistance where no tactical

reason could explain counsel's failure to investigate and pre-

sent available mitigating evidence). The evidence was easily

accessible, and it was not as if a reasonable doubt defense

would have contradicted the defense's case in mitigation. The

introduction of this evidence, with the exception of the testi-

mony of the jailers other than Lt. Blubaum, would not have

run the risk of opening the door to damaging rebuttal evidence

that was not already before the court. See Clabourne v. Lewis,

64 F.3d 1373, 1385 (9th Cir. 1995) (observing that defense

counsel "had nothing to lose by asking the expert witnesses

to testify at the sentencing hearing; their testimony would not

open the door to hidden evidence of aggravating circum-

stances"); cf. Burger v. Kemp , 483 U.S. 776, 791-92 (1987)

(concluding that defense counsel made reasonable tactical

choices in not presenting evidence that would open the door

to damaging rebuttal); Campbell v. Kincheloe, 829 f.2d 1453

(9th Cir. 1987) (same), cert. denied, 488 U.S. 948 (1988).

With a different trier of fact at the sentencing stage, defense

counsel could not assume that these arguments were hope-

lessly foreclosed by the guilty verdict. Cf. Felker v. Thomas,

52 F.3d 907, 911-13 (11th Cir. 1995) (finding that counsel

was not ineffective for failing to resort to a "residual doubt"

strategy when the sentencing jury had just found the defen-

dant guilty), opinion supplemented on denial of rehearing, 62

F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1133 (1996).

For that matter, the jury never specifically found that Pizzuto

was more than an accomplice to the crime. 4 There is no rea-

sonable explanation for counsel's failure to contest the aggra-

vating circumstances.

Furthermore, the trial judge's decision on the existence of

the aggravating circumstances determined whether Pizzuto

was death-eligible and what, if any, aggravating factors would

weigh against the mitigating factors. Advocacy on this issue

at sentencing was critical to Pizzuto's fate. Although the trial

judge explained that the evidence at trial would be considered

_________________________________________________________________

4 The jury charge permitted a finding of guilt on both murder theories

if the jury found that Pizzuto was either a principal or an accomplice. The

jury convicted without specifying whether it found Pizzuto to have been

an accomplice or a principal.

for sentencing purposes, a reasonably competent attorney

would have reminded the judge of the favorable evidence,

particularly when the trial was as lengthy and complicated as

this one 5 and when the sentencing hearing was not conducted

until nearly two months after the trial ended.

To find no prejudice, the majority cites two cases for the

proposition that evidence presented in the guilt phase need not

be repeated in the sentencing phase. In Williams v. Calderon,

we held that, because mitigating evidence was presented in

the course of the guilt phase, there was no prejudice when

defense counsel presented no mitigating evidence during the

penalty phase. 52 F.3d 1465, 1471 (9th Cir. 1995). In this

case, some of the evidence regarding the credibility of Rice

and Odom was not presented to the court in the guilt phase,

including Lt. Blubaum's reports, Rice's lie detector test, and

Odom's statement about making "narcs" dig their own graves.

Furthermore, Williams is distinguishable. In Williams, the

court was reviewing a California trial in which a jury decided

whether aggravating circumstances existed. Id. at 1468. Nor-

mally a jury will sit through a sentencing hearing almost

immediately after conviction, but, in Pizzuto's case, the judge

did not hold the sentencing hearing until almost two months

after the conviction. The judge may well not have remem-

bered the numerous details of the trial two months later or

carefully sifted through the lengthy trial transcript before sen-

tencing.

The majority also cites Woratzeck v. Stewart, which found

that there was no prejudice when defense counsel failed to

present evidence that was available in the presentence report.

97 F.3d 329, 336-37 (9th Cir. 1996). A presentence report is

a discrete document prepared for the court specifically for

sentencing. As such, a presentence report contrasts sharply

with thousands of pages of trial transcript from a trial held

_________________________________________________________________

5 Pizzuto's trial lasted thirteen days, over the course of which over

twenty witnesses gave testimony.

two months earlier. Defense counsel's failure to present evi-

dence from the previous trial is much more likely to affect the

outcome of the sentencing phase.

Because so much time passed between the conviction and

the sentencing, and this evidence was substantial enough that

it reasonably could have altered the balance between the miti-

gating and aggravating circumstances, there does seem to be

a reasonable probability that, but for defense counsel's failure

to reargue the favorable evidence from trial, the judge would

have sentenced Pizzuto to life rather than death. Also, consid-

ered cumulatively with counsel's other deficiencies discussed

below, defense counsel's failure to contest the State's case in

aggravation was prejudicial. See Harris v. Wood , 64 F.3d

1432, 1438-39 (9th Cir. 1995) (holding that the cumulative

impact of multiple deficiencies in defense counsel's perfor-

mance prejudiced the defendant in a capital trial). Taking into

account the deficiencies in the case in mitigation, the fact that

the evidence available to challenge the state's case in aggra-

vation would not have undermined the double-murder aggra-

vating circumstance does not preclude a finding of prejudice.

It is necessary to re-weigh any remaining aggravating circum-

stance against the mitigating evidence that should have been

presented.

B

Failure to Investigate, Argue, or Present

Mitigating Evidence

Defense counsel had a duty to investigate, introduce, and

explain the significance of available mitigating evidence

absent tactical reasons for avoiding such evidence. Mayfield

v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc)

("To perform effectively in the penalty phase of a capital

case, counsel must conduct sufficient investigation and

engage in sufficient preparation to be able to `present[ ] and

explain[ ] the significance of all the available [mitigating] evi-

dence.' "). While defense counsel presented evidence of Piz-

zuto's horrific childhood abuse, defense counsel was

unconstitutionally deficient in failing to present other avail-

able evidence in mitigation. Specifically, defense counsel did

not argue the relative culpability of the co-defendants and did

not properly investigate Pizzuto's mental health.

Relative Culpability of Co-Defendants: The relative culpa-

bility of co-defendants is a well-recognized mitigating cir-

cumstance. Rupe v. Wood, 93 F.3d 1434, 1441 (9th Cir.

1996); Mak v. Blodgett, 970 F.2d 614, 622-23 (9th Cir. 1992),

cert. denied, 507 U.S. 951 (1993). However, defense counsel

did not argue the relative culpability of Rice and Odom at

sentencing, thus conceding that Pizzuto was the principal of

these murders and the most culpable of the three co-

defendants. This aspect of defense counsel's ineffectiveness is

the same as that discussed above, but from the perspective of

mitigation: defense counsel failed to introduce any of the

ample evidence that Rice and Odom were not credible wit-

nesses and that they likely were more culpable, and Pizzuto

less culpable, than their testimony indicated. As noted above,

the jury did not find that Pizzuto was more than an accom-

plice, and, thus, there certainly was room to argue that he was

not actually the principal in these murders. In the end, the trial

judge adopted the State's version of the murders based on the

testimony of Odom and Rice that Pizzuto was the actual and

sole killer, acknowledging Rice and Odom only as Pizzuto's

"associates."

As discussed above, defense counsel's failure here cannot

be attributed to a reasonable strategic choice. Thus, in this

regard, defense counsel's representation "fell below an objec-

tive standard of reasonableness . . . under prevailing profes-

sional norms." Strickland, 466 U.S. at 689. Once again,

although the great bulk of the evidence on Rice and Odom's

credibility was presented and argued before the trial judge

during the guilt phase, the complexity of the case and the time

lapse between the conviction and the penalty hearing support

a finding of prejudice, especially in light of the trial judge's

explicit adoption of the State's version of the murders. Cf.

Williams , 52 F.3d at 1471. In addition, this deficiency cer-

tainly contributes to the overall prejudice caused by all of

defense counsel's errors in the penalty phase, as explained in

greater detail below.

Mental Health Investigation: Defense counsel also was

unconstitutionally deficient in failing to request from the court

and to consult with an independent psychological expert and

in failing to provide the court's mental health expert with the

information necessary to make a complete diagnosis. Any

contention that a request for an independent expert was made

is belied by the record. Although the trial judge referred to a

letter dated April 14, 1986, in which defense counsel alleg-

edly requested that they be permitted to hire Dr. Emery to

examine Pizzuto for sentencing, this letter is no where in the

record, and the letter does not reflect that defense counsel

requested an independent expert, only that they requested an

expert. Dr. Emery was not an independent expert because he

was ordered to report directly to the court.

There simply is no evidence in the record that Pizzuto's

defense counsel either objected to the court's order that the

expert report directly to the court or insisted on hiring an

independent expert. In the absence of such evidence in the

record, it is inappropriate to assume that these actions were

taken. The majority contends that we may make this assump-

tion, however, because Pizzuto asserted in his petition for

rehearing to the Idaho Supreme Court that his defense counsel

had requested independent defense experts. 6 What the major-

ity fails to acknowledge is that Pizzuto's defense counsel con-

tinued to represent him during these proceedings, although

_________________________________________________________________

6 The language used in the brief was as follows: "[T]hough requested by

the defense both pre-trial and pre-sentence, not a single independent

defense expert was provided." Appellant's 1991 Brief in Support of Pet.

for Rehrg. to Idaho S. Ct. at 11-12.

one of his current attorneys also appeared on his behalf on the

1991 brief. The petitioner should not be estopped from argu-

ing that his defense counsel failed to request an independent

expert. The record simply does not support the assertion that

such a request was made, and Pizzuto should not be penalized

for his defense counsel's failure to acknowledge his deficient

representation of Pizzuto at sentencing.

According to the record, defense counsel did not request or

consult an independent mental health expert despite the fact

that defense counsel was aware that the trial judge considered

Pizzuto's mental condition to be a "significant factor" for sen-

tencing. In the end, the only mental health expert utilized by

the defense for sentencing was Dr. Emery, the doctor chosen

to report to the court.

Dr. Emery's report responded to the questions asked by the

court and was furnished directly to the court. The court for-

warded copies to the prosecutor and defense counsel. Dr.

Emery interviewed Pizzuto for a total of 2.75 hours. His testi-

mony was based on his interview with Pizzuto, interviews of

two of Pizzuto's relatives done only the night before he testi-

fied, Pizzuto's arrest record, and the defense's case in mitiga-

tion and the State's case in aggravation, which he observed

prior to testifying.

Dr. Emery testified for both the defense and the prosecu-

tion. The court also questioned Dr. Emery. Dr. Emery testi-

fied that Pizzuto has an antisocial personality disorder

characterized by a preoccupation with justifying himself, a

preoccupation with violence, and difficulty anticipating the

consequences of his behavior. He testified that Pizzuto is

explosive, impulsive, lacks empathy, has little tolerance for

ambiguity, and would likely prey on those weaker than he in

prison. He also testified that the terrible physical, emotional,

and sexual abuse suffered by Pizzuto could be responsible for

his antisocial personality disorder. He opined that Pizzuto's

upbringing had "the highest odds to having an offspring that

is going to behave in a violent manner," and that neither med-

ication nor therapy would likely help Pizzuto.

Defense counsel acted unreasonably in relying solely on

Dr. Emery's evaluation of Pizzuto's mental health. Defense

counsel should have consulted an independent psychiatrist

who did not report to the court or the prosecutor and with

whom the lawyer and the client could discuss matters in con-

fidence. Before Pizzuto's trial began, the Supreme Court held,

in Ake v. Oklahoma , 470 U.S. 68, 83 (1985), that an indigent

capital defendant has a right to a psychiatric expert to "assist

in the evaluation, preparation, and presentation of the

defense" when the defendant's mental condition is significant

to the proceeding. In Smith v. McCormick, 914 F.2d 1153,

1157 (9th Cir. 1990), we noted that Ake rejected the notion

that there is such a thing as "neutral" psychiatric testimony,

further supporting Ake's holding that an indigent capital

defendant is entitled to his own psychiatric expert. The Smith

court concluded that the court's neutral psychiatrist "in no

sense assisted in the evaluation or preparation of the defense."

Id. at 1158.

Although Smith was not decided until after Pizzuto's sen-

tencing, the result was already dictated by Ake . In addition,

the petitioner submits the affidavit of Kathryn Ross, who is

qualified as an expert to testify on issues of constitutionally

adequate death penalty representation. Ross states that, at the

time of Pizzuto's trial, constitutionally effective counsel in a

capital case would have been required to request an indepen-

dent mental health expert if they had reason to believe the cli-

ent's mental condition might be at issue. 7 In this case, the trial

_________________________________________________________________

7 The majority suggests that this affidavit can be ignored because it does

not purport to be based on a review of the record in this case or to express

an opinion on defense counsel in this case. It is not clear why that would

be necessary when Ross stated that any competent defense attorney, with-

out exception, would have retained an independent mental health expert

under the exact circumstances present in this case, that is, when the defen-

dant's mental condition is a significant factor and his life is at stake. There

is no valid reason to ignore this evidence.

judge made clear that he considered Pizzuto's mental condi-

tion to be a significant factor for sentencing. The State has not

presented any evidence to rebut Ross's statement. This affida-

vit, along with the authority of Ake, make out, at a minimum,

a colorable claim that defense counsel's failure to consult an

independent mental health expert was unconstitutionally defi-

cient.

Defense counsel was ineffective in relying on Dr. Emery

also because Dr. Emery's examination of Pizzuto was short

and incomplete, and he lacked important information that

would have influenced his opinion. Defense counsel, although

aware of this information, did not inform Dr. Emery that Piz-

zuto experienced seizures or that he was taking anti-seizure

medication, and they did not provide him with Pizzuto's

prison records, which indicated that Pizzuto had epilepsy and

that his behavior improved over the course of his incarcera-

tion. Pizzuto sustained serious head injuries from falling

down a flight of stairs at the age of two and from a bicycle

accident when he was a teenager. Dr. Emery's affidavit indi-

cates that he was not aware of Pizzuto's seizures or head inju-

ries.

We have held that an attorney has "a professional responsi-

bility to investigate and bring to the attention of mental health

experts who are examining his client, facts that the experts do

not request . . . , at least at the sentencing phase of a capital

case." Wallace v. Stewart, 184 F.3d 1112, 1116 (9th Cir. 1999). 8

_________________________________________________________________

8 This court held in Murtishaw v. Woodford that defense counsel is not

ineffective for failing to provide a mental health expert with unrequested

background information about the defendant for the guilt phase of trial.

255 F.3d 926, 945 (9th Cir. 2001). However, the court specifically distin-

guished existing precedent that held that, to be effective in the penalty

phase of a capital case, defense counsel must provide background infor-

mation to mental health experts who are examining the client, even if the

experts do not request those facts. Id. at 945, n.9 (citing Caro v. Calderon,

165 F.3d 1223 (9th Cir. 1999)). The Murtishaw court emphasized, "In this

case, Murtishaw does not argue that his experts during the penalty retrial

were deprived of potentially relevant information. " Id. By contrast, here

Pizzuto argues that his experts were deprived of relevant information dur-

ing the penalty phase.

This conclusion is based on the idea that "[a ] lawyer who

knows of but does not inform his expert witnesses about . . .

essential pieces of information going to the heart of the case

for mitigation does not function as `counsel' under the Sixth

Amendment." Id. at 1117 (quoting Caro v. Calderon, 165

F.3d 1223, 1228 (9th Cir. 1999)). In Wallace, defense counsel

was unconstitutionally deficient in failing to provide the men-

tal health expert with the defendant's psychological profiling

results and in not informing the expert of the defendant's cha-

otic family history, including a "clinically significant series of

head traumas." Id. at 1116. As a result, the experts who testi-

fied both for and against the defendant agreed that their diag-

noses were incomplete, and that they failed to discover that

the defendant likely suffered from organic brain damage.

Similarly, Dr. Emery admits in his affidavit that the omitted

facts regarding Pizzuto were significant for the purposes of a

complete mental health evaluation and would have caused

him to recommend neuropsychological testing prior to trial

and sentencing. He states in his affidavit that,"in light of Piz-

zuto's apparent seizures and abused childhood, which report-

edly includes blows to the head," a neuropsychological

examination of Pizzuto would have resulted "in a more thor-

ough and complete assessment of Pizzuto's psychological

makeup." Emery Affidavit at 2. Dr. Emery asserts in his affi-

davit that the evidence indicates that Pizzuto may have tem-

poral lobe seizures, and a neuropsychological examination

would have been helpful in detecting such organic brain dam-

age. Pizzuto also submits the affidavit of Dr. Craig Beaver,

who was employed after sentencing. Dr. Beaver conducted a

more thorough examination of Pizzuto, including 8.5 hours of

interviews with Pizzuto, a review of an affidavit of Pizzuto's

mother describing his head injuries, a comprehensive neurop-

sychometric examination, and a review of Pizzuto's prison

records. Dr. Beaver's neuropsychometric examination of Piz-

zuto revealed significant neurocognitive defects consistent

with brain injury and seizure disorder.

The findings of Dr. Sarah Werner, who examined Pizzuto

on one occasion after he suffered a seizure while in the Idaho

penitentiary, do not justify defense counsel's failure to insist

on a neuropsychological examination of Pizzuto. The respon-

dent submitted Dr. Werner's affidavit in response to Pizzuto's

petition in state court for post-conviction relief. In her affida-

vit of May 8, 1987, she states that "the probability that Piz-

zuto is suffering from temporal lobe organic disorder is

exceedingly low given the results of the examinations and

tests I performed on him."

However, Dr. Werner's opinion of Pizzuto's condition was

not stated so clearly in the medical records she wrote when

she examined Pizzuto. Admitting that it was "almost impossi-

ble to extract an adequate history from this patient," she

wrote:

The history given . . . certainly [is] consistent with a temporal lobe origin seizure and it is likely that the patient has had these in the past. The episodes that he currently presents . . . could represent temporal lobe status, however the variability and the unusually rapid clearing once out of medical observation and additionally the timing of his symptomatology all strongly suggest that this is a pseudoseizure.

Post-Conviction Relief Record at 47 (emphasis added). At that time, she recommended that he continue to take anti- seizure medication.

Dr. Werner's statements in the medical records differ mark-

edly from her statement submitted for post-conviction relief

purposes. Instead of justifying no further investigation, her

statement in the medical records should have alerted defense

counsel to the possibility of a temporal lobe disorder that

could have provided mitigating evidence for sentencing. 9

_________________________________________________________________

9 No one questions that Pizzuto had the requisite mental state for a con-

viction of murder in the first degree. However, the evidence of epilepsy

and brain damage is important evidence in mitigation for the purpose of

individualized sentencing.

1881

There is no suggestion that defense counsel contacted Dr.

Werner for further explanation or conducted any investigation

into these facts at all. Neither could defense counsel have

relied on the fact that Dr. Emery did not find a need for neuro-

logical examinations because, as discussed above, they failed

to give him the information necessary to form an opinion in

this regard.

In sum, defense counsel's failure to insist on neuropsy-

chological testing did not stem from an informed decision

made after reasonable investigation, as required by the Con-

stitution, but was the product of neglect. See Seidel v. Mer-

ckle, 146 F.3d 750, 756 (9th Cir. 1998) (finding ineffective

assistance where defense counsel "failed to conduct even the

minimal investigation that would have enabled him to come

to an informed decision" regarding his client's mental health

defenses); cf. Hendricks v. Calderon, 70 F.3d 1032 (9th Cir.

1995) (holding that defense counsel gathered sufficient evi-

dence to make a reasonable tactical decision not to conduct

further investigations into his client's mental health when psy-

chiatric experts interviewed the defendant for more than

twenty hours and informed defense counsel that they could

not find any basis for a mental defense).

Pizzuto not only has shown that his counsel's failure to

investigate and secure mental health evidence constituted an

unconstitutional deficiency, he has also shown that the defi-

ciency prejudiced his capacity to present relevant and compel-

ling mitigation evidence and to counter the State's evidence

of aggravation. The bulk of Dr. Emery's testimony led the

trial court to find numerous aggravating circumstances, not

mitigating circumstances, including the fact that Pizzuto has

a low I.Q. At least twelve of the non-statutory aggravating

factors listed in the court's findings are based directly on Dr.

Emery's testimony at sentencing, often using his exact words.

By relying on an expert who reported directly to the court

and the prosecutor and who lacked critical information about

Pizzuto's history, the defense left the trial court with only Dr.

Emery's negative conclusions. Had defense counsel consulted

an independent expert whom he fully informed and who con-

ducted a more comprehensive examination, the expert proba-

bly would have provided testimony similar to that contained

in Dr. Beaver's affidavit.

The majority finds little difference between Dr. Beaver's

affidavit and Dr. Emery's testimony at the sentencing hearing.

I disagree. It is true that the doctors' statements do not

directly contradict each other in every regard; after all, they

were evaluating the same person. However, Dr. Beaver con-

tributed important mitigating factors that Dr. Emery's testi-

mony did not reach.

Dr. Emery characterized Pizzuto simply as a sociopath; he

testified that Pizzuto likes to dominate others, that medica-

tions and therapy would not likely help Pizzuto, and that Piz-

zuto will continue to be dangerous even in prison. The judge,

in questioning Dr. Emery, focused on these particular aspects

of the doctor's opinion.

Dr. Beaver's affidavit, in contrast, states that"[w]hile Piz-

zuto does have some antisocial traits, he also struggles with

an organic mental syndrome, related to his epilepsy. " He

explains that Pizzuto exhibits passive dependent features,

which, combined with his cognitive and emotional limita-

tions, "make it very unlikely that [he] would be a leader with

a group of peers." Dr. Beaver gives us a better understanding

of the impact the childhood abuse had on Pizzuto, explaining

that patients with brain damage and/or epilepsy are"more

vulnerable to their environment and are more adversely

affected by negative family and environmental conditions

given their more limited resources." This description of his

mental condition paints a very different picture of the human

being before the court. These are the kind of "compassionate

or mitigating factors stemming from the diverse frailties of

humankind that the court must not be precluded from consid-

ering in the individualized sentencing required in capital

cases. Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

Dr. Beaver also stated: "I do not feel Jerry Pizzuto poses a

significant risk to others within the prison population. If Piz-

zuto continues on anti-seizure medication, has the structure of

the correctional system, and remains abstinent from drugs or

alcohol, I believe he can function safely and adjust appropri-

ately to long-term incarceration." Beaver Affidavit at 8

(emphasis in original). In contrast, Dr. Emery testified that

Pizzuto might be safe and productive only in a highly struc-

tured setting where supervision would prevent any sort of

predator-prey relationship. Upon questioning from the court,

he went on to say that the penitentiary system is highly hierar-

chical, implying that there was not sufficient supervision to

prevent Pizzuto from posing a danger to others. His conclu-

sion as to the danger Pizzuto posed in prison was very differ-

ent from Dr. Beaver's. 10

As can be seen from this review of the evidence, the epi-

lepsy and possible brain damage suffered by Pizzuto are

extremely important in understanding his behavior, in assess-

ing his culpability, and in determining whether medication

would be helpful. By failing to request an independent expert

_________________________________________________________________

10 The majority takes Dr. Beaver's statement that he does not believe

Pizzuto poses a significant risk to others in prison out of context to con-

clude that he agrees with Dr. Emery that Pizzuto poses some risk. How-

ever, as the State conceded at oral argument, no doctor would presume to

conclude that a prisoner poses no risk at all. They can only speak in terms

of probabilities, and Dr. Beaver's assessment of that probability is signifi-

cantly different from Dr. Emery's.

The majority also suggests that Dr. Beaver's statement is not probative

of how Pizzuto would have been assessed by a fully informed, indepen-

dent mental health expert at the time of trial. Dr. Beaver did not evaluate

Pizzuto until 1996, when Pizzuto had reached the age of 40. However, this

delay was the direct result of defense counsel's ineffectiveness in failing

to obtain and fully inform an independent expert at the time of trial. It can-

not be held against Pizzuto at this stage.

and not giving the court's expert pertinent information,

defense counsel lost the opportunity to share this understand-

ing with the court in aid of presenting mitigation. Instead, the

court heard overwhelmingly aggravating circumstances that

contributed directly to the court's decision to impose the

death penalty. This important mental health evidence alters

the balance of mitigating and aggravating circumstances and

its absence at sentencing significantly undermines confidence

in the outcome.

C

Closing Argument

In addition to defense counsels' failures during the rest of

the sentencing hearing, defense counsel's brief closing argu-

ment was unconstitutionally deficient. The State's closing

argument outlined the facts of the crime as the State viewed

them, reviewed the testimony of the witnesses in aggravation,

emphasized Dr. Emery's conclusion that Pizzuto was danger-

ous and could not be rehabilitated, referred to the suffering of

the surviving family members, and asked for the death pen-

alty. Defense counsel gave a brief closing argument. Other

than general pleas for mercy and forgiveness, the defense's

closing, reported on three pages, consisted of the following:

Regardless of the verdict of this jury, does there not linger in your mind some doubt as to the roles of these people in this grizzly event that took place in Ruby Meadows? Is there nothing salvageable about this human being that we can look to after hearing Emery's testimony, that this man is the classic case of sociopath, abusing children? And if you could pick a scenario to point out the worst of all child- hood experiences, Jerry Pizzuto would be the man who most demonstrates that. Cannot there be some thought of forgiveness for that and all of the suffer- ing that he has taken upon his shoulders throughout his childhood and his life? . . . He's a victim of the system, he's a victim of his parents, and of course he's a victim of himself.

Defense counsel's closing argument was devoid of sub- stance. He did remind the court of Dr. Emery's testimony that Pizzuto was a classic sociopath! He did not bother to chal- lenge the State. He had at hand available evidence to chal- lenge whether the aggravating circumstances had been proved beyond a reasonable doubt. Instead of summarizing and explaining the impact of the multitude of evidence available showing the lack of credibility and relative culpability of the co-defendants, defense counsel merely suggested that there might be "some doubt" lingering as to the roles of "these peo- ple." These omissions highlight his professional incompe- tence. See Mayfield, 270 F.3d at 928 (finding counsel's "perfunctory" closing deficient in its failure to explain the sig- nificance of the mitigating evidence). Worse than omitting important evidence, this "lingering doubt" statement assumed that the jury had decided Pizzuto was the actual killer, and that Rice and Odom were not culpable, despite the general verdict that may have been based on an accomplice theory. At the beginning of his closing, defense counsel said, "I don't think that a long attempted eloquence will make any dif- ference in this matter, so I'm not going to belabor this court with my conversation." The State claims that this was an acknowledgment of defense counsel's tactical choice to keep the closing short. However, if this was a tactical choice, it was not a reasonable one. Possibly if defense counsel had pre- sented, during the sentencing hearing, the available evidence casting doubt on the aggravating circumstances and showing mitigating circumstances, he could have refrained from exten- sive rehashing of evidence. But defense counsel failed, during the hearing, to contest the aggravating factors, argue the unre- liability of the prosecution's key witnesses and their relative culpability, and discover and present important mental health evidence. In assessing ineffectiveness claims it"is the totality of [defense counsel's] efforts we must examine, not just part of them in isolation." Gerlaugh v. Stewart , 129 F.3d 1027, 1036 (9th Cir. 1997). In the context of an already deficient representation at sentencing, defense counsels' failure to make such arguments at closing left the trial court with little reason to spare Pizzuto's life. In light of the prosecution's detailed and thorough closing, counsel's performance was devastating.

Also, this is not the sort of case where the evidence of the

aggravating circumstances was so overwhelming that arguing

the mitigating evidence available to the defense or arguing

that some of the aggravating circumstances were not estab-

lished beyond a reasonable doubt would have been"a useless

charade." Id. at 1043. On this point, our decision in Smith v.

Stewart is telling. 140 F.3d 1263 (9th Cir. 1998). Like the

Herndon murders, Smith was convicted of a robbery murder.

The underlying crime in Smith was roughly similar to this

case. Smith was a parolee who committed several armed rob-

beries before shooting a store clerk in cold blood. Id. at 1268.

Smith's victim died after he "lingered on in pain and fear for

a couple of weeks." Id. at 1269. Smith offered a "cock-and-

bull story" upon his arrest. When he discovered that his story

would not hold up, he devised a new defense that the jury did

not credit. Id. at 1268.

Smith's lawyer failed to investigate or present any mitigat-

ing evidence, despite the availability of evidence that Smith

had an antisocial personality disorder, a bad drug history, and

some close family relationships. Id. at 1269. Although this

court recognized that these mitigating factors were often

treated on appeal as insufficient to justify mitigation, the court

could think of no tactical reason for not presenting or at least

arguing this evidence. Id. Significantly, the court stated,

"[W]hile the facts of this case are bad enough to disturb even

a jaded observer, they do not reach the level of those in cases

where the aggravating facts were so overwhelmingly horrify-

ing that it was highly improbable that mitigating factors of

any ordinary stripe would help." Id. at 1271. The Smith court

determined that "the failure to even attempt to persuade the

sentencing judge, through evidence or argument, that he

should grant Smith leniency" was ineffective. Id. at 1269.

Equally in Pizzuto's case, the facts were not so extreme that

there was no hope for mitigating them such that defense coun-

sels' abandonment of the available evidence was reasonably

justified. See also Mayfield, 270 F.3d at 929 (holding that

Mayfield was prejudiced by his defense counsel's failure to

present all the available mitigating evidence although "[t]he

aggravating evidence against Mayfield was strong " and "[t]he

mitigation evidence presented . . . was substantial").

Further, Pizzuto has demonstrated that defense counsels'

deficient closing contributed to the cumulative prejudice

caused by the other errors at sentencing. Under prevailing

case law, individual deficiencies in representation which may

not by themselves meet the Strickland standard may, when

considered cumulatively, constitute sufficient prejudice to jus-

tify issuing the writ. See Harris, 64 F.3d at 1438-39 (holding

that the cumulative impact of multiple deficiencies in defense

counsel's performance prejudiced the defendant in a capital

trial); Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992)

("We do not need to decide whether these deficiencies alone

meet the prejudice standard because other significant errors

occurred that, considered cumulatively, compel affirmance of

the district court's grant of habeas corpus as to the sentence

of death.").

To judge cumulative prejudice, we must look at each defi-

ciency in light of the other deficiencies. Since counsel did not

present trial evidence in the sentencing hearing, it was unrea-

sonable not to make more explicit reference to the evidence

from trial in the closing argument to at least remind the judge

that the trial record deserved a closer look for his sentencing

determination. Inversely, had defense counsel included spe-

cific references to the trial evidence in the closing argument

for sentencing, it may have been more reasonable to omit it

from the presentation of evidence during the sentencing hear-

ing.

The district court's finding of no prejudice denigrates the

importance of advocacy. It assumes that because the trial

court heard the testimony at trial, counsel's complete failure

to address the evidence at sentencing did not matter. How-

ever, the Supreme Court itself, in deciding that defense coun-

sel must be allowed to make a closing argument in a bench

trial, recognized that even a two-day interval between evi-

dence and decision might create a situation in which"the

judge's memory may well have dimmed, however conscien-

tious a note taker he may have been." Herring v. New York,

422 U.S. 853, 864 (1975). As noted previously, Pizzuto's sen-

tencing hearing occurred nearly two months after the thirteen-

day trial.

Finally, the evidence that Pizzuto's defense counsel failed

to reargue in the hearing and at closing was significant. It cal-

led into question the relative role that Pizzuto played in these

murders and the sequence of events that took place during the

murders. These factors were significant in the determination

of whether the murders were "heinous, atrocious, and cruel"

and whether they exhibited "an utter disregard for human

life." This evidence reasonably could have cast enough doubt

on the State's version of the murders to tip the balance of the

scales in favor of mitigation. A new balance is particularly

likely because the trial court was not offered a complete pic-

ture of Pizzuto's mental health, which would have revealed

more circumstances in mitigation. As a result, defense coun-

sels' overall deficient performance undermines confidence in

the outcome of the sentencing.

D

Evidentiary Hearing

Based on the state court record and the affidavits submitted

by Pizzuto, he has raised a colorable claim of ineffective

assistance of counsel at sentencing. No court has held an evi-

dentiary hearing on Pizzuto's ineffective assistance claims. In

a capital case, a habeas petitioner who asserts a colorable

claim to relief, and who has never been given the opportunity

to develop a factual record on that claim, is entitled to an evi-

dentiary hearing in federal court. Siripongs v. Calderon, 35

F.3d 1308, 1310 (9th Cir. 1994). Pizzuto is entitled to an evi-

dentiary hearing on this claim.

We have previously emphasized the importance of eviden-

tiary hearings in capital habeas proceedings. In Siripongs,

after remanding the case for an evidentiary hearing on the

claims of ineffectiveness and receiving the results, the court

observed that its decision could now be "made with the confi-

dence that must accompany a decision that upholds a sentence

of death." Id. at 737. The court explained that often such con-

fidence can only be gained after the petitioner has the oppor-

tunity to develop the factual record. Id.

Our recent decision in Hoffman v. Arave supports the need

for an evidentiary hearing on the issue of prejudice in particu-

lar. 236 F.3d 523 (9th Cir. 2001), cert. denied , Arave v. Hoff-

man, 122 S. Ct. 323 (2001). As in Pizzuto's case, no state or

federal court had conducted a hearing on Hoffman's allega-

tions of ineffective assistance. In Hoffman, the court stated:

Without the benefit of an evidentiary hearing, it is impossible to evaluate the strength of Hoffman's defense at trial and sentencing. Therefore, we cannot conclude as a matter of law that there is no reason- able possibility that offering expert testimony and a thorough history of Hoffman's educational, medical, and psychological problems at the time of the mur- der might have reduced the likelihood that the death penalty would have been imposed.

Id. at 536. Consequently, the court ordered the district court to hold an evidentiary hearing. Id. Also, in Wallace, 184 F.3d at 1118, where the defendant alleged ineffective assistance because his counsel did not furnish his mental health experts with pertinent facts, we found that an evidentiary hearing was required to develop the factual record needed to assess preju- dice. Thus, a determination that Pizzuto has not established prejudice is premature on this record. I would remand for an evidentiary hearing.

II.

Fifth and Sixth Amendment Rights in

Presentence Interviews

Pizzuto's Fifth and Sixth Amendment rights were violated

because the trial court used uncounseled, non-Mirandized

statements from the presentence interviews against him at sen-

tencing.¹¹ Hoffman, 236 F.3d at 538, 540. I disagree with the

majority's conclusion that these constitutional violations were

"harmless errors."

In Hoffman, after deciding that Hoffman's Sixth Amend-

ment right had been violated by the use of uncounseled state-

ments made in a presentence interview, we remanded the

question of whether the violation constituted harmless error.

Id. at 541. We could not "adequately evaluate the impact of

Hoffman's incriminating statements made during the presen-

_________________________________________________________________

11 The use of both the Idaho and Michigan presentence interviews at Piz-

zuto's 1986 capital sentencing was a constitutional violation under Hoff-

man. As held in Hoffman, 236 F.3d at 537, the application of this rule to

these interviews is not Teague barred; it is not a new rule because the rule

was dictated by Estelle v. Smith, 451 U.S. 454 (1981). We decided in Bau-

mann v. United States, 629 F.2d 565, 577 (9th Cir. 1982), only that the

use, in a non-capital case, of uncounseled statements made in a presen-

tence interview does not violate the Sixth Amendment. Although the

Michigan presentence interview was conducted for a non-capital case,

using statements from that interview in Pizzuto's capital sentencing brings

it firmly within the purview of Estelle and Hoffman. I would note that the

majority's language to the contrary with respect to the Michigan presen-

tence interview is merely dicta.

tence interview without considering the full body of mitigat-

ing and aggravating evidence considered at sentencing.

Hoffman's allegations of ineffective assistance of counsel at

the trial cast doubt over the reliability of this body of evi-

dence." Id. at 540-41.

A hearing on ineffectiveness was necessary to determine

whether the Sixth Amendment violations were harmless

despite the fact that Hoffman took the witness stand during

the sentencing hearing and related to the trial court virtually

the same information which he disclosed during the presen-

tence interview. Hoffman v. Arave, 73 F.Supp. 2d 1192, 1205-

06 (D. Idaho 1998). Like Hoffman's statements, many of the

statements made by Pizzuto in the presentence interviews

were introduced to the trial court through other evidence or

did not appear to significantly impact the trial judge's deci-

sion to impose the death penalty. But, also, like Hoffman, Piz-

zuto has presented colorable claims of ineffective assistance

of counsel at sentencing that require an evidentiary hearing.

Pizzuto's claims of ineffectiveness are similar to Hoff-

man's. Hoffman's trial counsel apparently failed to obtain or

review their client's educational, medical, or psychological

records, failed to request a psychiatric evaluation of their cli-

ent until after the trial despite awareness of his illiteracy, low

intelligence, and psychological problems, and failed to follow

up on the conclusion of a doctor that Hoffman suffered from

possible brain damage. Similarly, Pizzuto claims that his trial

counsel failed to investigate or present important mitigating

evidence, including possible brain damage, an error that was

further exacerbated by the fact that his trial counsel did not

attempt to challenge the State's case in aggravation with read-

ily available evidence. Because of these claims, the body of

mitigating and aggravating evidence is not reliable in Pizzu-

to's case. Therefore, as in Hoffman, the"harmless error" anal-

ysis on his Fifth and Sixth Amendment claims should be

remanded to await the evidentiary hearing on the ineffective-

ness claim.

III.

Constitutionality of Idaho's "Heinous, Atrocious,

or Cruel" Aggravating Factor

Idaho's list of statutory aggravating circumstances, at least

one of which must be found to exist beyond a reasonable

doubt before a sentence of death can be imposed, includes a

finding that "[t]he murder was especially heinous, atrocious

or cruel, manifesting exceptional depravity." The trial judge

in Pizzuto's case found that this factor, along with four others,

existed beyond a reasonable doubt. 12 The petitioner asserts

that this aggravating factor is unconstitutionally vague.

The Supreme Court has held that the state must "channel a

[capital] sentencer's discretion by `clear and objective stan-

dards' that provide `specific and detailed guidance,' and

`make rationally reviewable the process for imposing a death

sentence.' " Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (quot-

ing Godfrey v. Georgia, 446 U.S. 420, 428 (1990)). If the stat-

utory language is too vague, then the federal court must

determine whether the state courts have further defined the

vague terms in a constitutionally sufficient manner. Walton v.

Arizona, 497 U.S. 639, 654 (1990). The parties agree that the

terms "heinous, atrocious, and cruel" and"manifesting excep-

tional depravity" are too vague to sufficiently guide the sen-

tencer. Maynard v. Cartwright, 486 U.S. 356, 360 (1988)

(holding that "heinous, atrocious, or cruel" is unconstitution-

ally vague language); Godfrey, 446 U.S. at 420-21 (holding

"depravity of mind" to be unconstitutionally vague language);

_________________________________________________________________

12 The five aggravating factors found by the trial judge were: (1) the

crime was a double murder, (2) the murder was especially heinous, atro-

cious or cruel, manifesting exceptional depravity, (3) by the murder, the

defendant exhibited an utter disregard for human life, (4) the murder was

committed in the perpetration of a robbery and the defendant intended a

killing, and (5) the defendant has exhibited a propensity to commit mur-

der.

Moore v. Clark, 904 F.2d 1226, 1230 (8th Cir. 1990) (holding

that "exceptional depravity" is unconstitutionally vague).

The issue in contention is whether the Idaho Supreme

Court has provided a limiting construction to guide the sen-

tencer's discretion in a constitutionally sufficient manner. The

State argues that the Idaho Supreme Court sufficiently limited

the Heinous, Atrocious or Cruel ("HAC") factor by adopting

the following interpretation of "exceptional depravity" from

Nebraska:

In interpreting this portion of the statute, the key word is "exceptional." It might be argued that every murder involves depravity. The use of the word "ex- ceptional," however, confines it only to those situa- tions where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence.

State v. Osborn, 631 P.2d 187, 200 (Idaho 1981) (quoting State v. Simants, 250 N.W.2d 881, 891 (Neb. 1977)), cert. denied, 434 U.S. 878, reh'g denied, 434 U.S. 961 (1977). However, the Eighth Circuit has held that Nebraska's use of the word "exceptional" does not provide sufficient guidance. Moore, 904 F.2d at 1230-31. It reasoned that"exceptional" is just as subjective and vague as "especially," a term the Supreme Court has rejected as unhelpful in guiding the sen- tencer. Id. at 1230 (citing Maynard, 486 U.S. at 364). This reasoning is persuasive.

The respondent also argues that the Idaho Supreme Court

has constitutionally limited the HAC factor by adopting the

following interpretation of "heinous, atrocious, or cruel" from

the Florida Supreme Court:

What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies-- the conscienceless and pitiless crime which is unnecessarily torturous to the victim .

Osborn, 631 P.2d at 200 (emphasis added) (quoting State v. Dixon, 283 So.2d 1, 9 (Fla. 1973)), cert. denied, 416 U.S. 943 (1974). The Supreme Court approved of this limiting con- struction in Sochor v. Florida, 504 U.S. 527, 536 (1992), "un- derstanding the factor, as defined by the Florida Supreme Court, to apply only to a `conscienceless or pitiless crime which is unnecessarily torturous to the victim.' "

However, Pizzuto contends that the Idaho Supreme Court,

in the cases decided after the adoption of this limiting con-

struction, did not specifically find that the HAC homicides

were unnecessarily torturous, and the court's formulation of

the limiting standard has not been consistent. The Supreme

Court addressed a similar claim in Proffitt v. Florida, 428

U.S. 242, 255 n.12 (1976). The Court reviewed the Florida

cases that used the HAC factor after the new construction was

adopted. Id. The Court found that the circumstances of all of

these cases could accurately be characterized as"pitiless" and

"unnecessarily torturous," and concluded that the state court

had not abandoned the definition it had announced. Id.

It is necessary to undertake this same type of review with

regard to the Idaho Supreme Court's treatment of the HAC

factor since the adoption of the "unnecessarily torturous" lan-

guage. 13 Of the seventeen Idaho Supreme Court cases using

_________________________________________________________________

13 The State contends that this type of review is foreclosed by Arave v.

Creech, 507 U.S. 463 (1993). In Creech , the Supreme Court held that its

decisions "do not authorize review of state court cases to determine

whether a limiting construction has been applied consistently." Id. at 1544.

However, the Supreme Court made it explicit that"federal courts may

consider state court formulations of a limiting construction to ensure that

they are consistent," approving the analysis undertaken in Proffitt. Id. I do

not propose to review whether the limiting construction has been applied

the HAC factor, possibly five (nearly one-third) involved no

suffering on the part of the victim. The murder in State v. Paz,

798 P.2d 1 (Idaho 1990), was not "unnecessarily torturous"

because the defendant shot his victim with a semi-automatic

weapon at close range. In two other cases, the facts of the

crime, as recounted by the court, do not suggest that the vic-

tims did not die immediately. See State v. Lankford, 781 P.2d

197 (Idaho 1989) (the defendant hit his victims on the head

with a night stick); State v. Aragon, 690 P.2d 293 (Idaho

1984) (the defendant hit his eight-month-old victim with

severe force). In another two cases, the supreme court did not

provide detailed facts of the crime, and, thus, it is not possible

to discern whether they support a finding of "unnecessary tor-

ture." See State v. Rhoades, 822 P.2d 960 (Idaho 1991); State

v. Fain, 774 P.2d 252 (Idaho 1989) (no specific finding of tor-

ture or specific facts supporting a finding of torture were

included in the opinion in either case). In sum, on the facts

deemed critical by the Idaho Supreme Court, only twelve of

Idaho's seventeen "heinous, atrocious, or cruel " murders

involved torture to the victim, 14 and five did not. This record

_________________________________________________________________

consistently, which would involve a comparative analysis of the cases and

amount to a proportionality review, as noted in Walton, 497 U.S. at 655-

56 (1990). Instead, in line with Proffitt, the review I propose looks merely

to see whether Idaho's formulation, requiring unnecessary torture, has

been consistent.

14 State v. McNight , 19 P.3d 64 (Idaho 2000) (upholding, in a non-capital

case, the trial court's finding that the murder was"heinous, atrocious, or

cruel" because the defendant beat his victim repeatedly with a golf club,

causing profuse bleeding, continued to beat the victim with a second golf

club, asking his victim if he liked choking on his own blood, and then ran

over him with a vehicle at least five times); State v. Wood, 967 P.2d 702

(Idaho 1998) (the defendant kept his victim captive for over a day, during

which time he sexually molested her and then shot her in the head with

a rifle); State v. Porter, 948 P.2d 127 (1997) (holding that there was suffi-

cient evidence to show that the victim suffered before she died based on

numerous bruises on her forearms that appeared to be defensive wounds

and the large amount of blood found at the scene of the crime indicating

that many of the wounds were inflicted before the victim died); State v.

is in stark contrast to the Florida Supreme Court's record

reviewed by the Supreme Court in Proffitt. In Proffitt, the

Supreme Court found that the circumstances of all of the Flor-

ida cases could have been accurately characterized as "piti-

less" and "unnecessarily torturous." Proffitt, 428 U.S. at 255

n.12.

Given this shaky record and the Idaho Supreme Court's

repeated failure to specifically require that the"unnecessarily

torturous" standard be met, particularly at the time of Pizzu-

to's state proceedings, Idaho's interpretation of the HAC fac-

tor did not provide sufficient guidance to the sentencer. Thus,

this factor remained unconstitutionally vague when Pizzuto's

sentence was imposed.

The unconstitutionality of the HAC factor should not be

considered harmless error. The trial court found four other

_________________________________________________________________

Webb, 864 P.2d 1123 (Idaho 1993) (one victim was struck repeatedly in

the head with blows severe enough to shatter his skull, and the other vic-

tim was struck from behind with enough force to put a two-inch hole in

her skull; both victims were barely alive when the police arrived); State

v. Hoffman, 851 P.2d 934 (Idaho 1993) (the victim spent an entire night

knowing she was going to die and then had to beg the co-defendant to fin-

ish the job after the defendant had slashed her throat and left her to bleed

to death); State v. Sivak, 806 P.2d 413 (Idaho 1990) (the defendant stabbed

his victim several times, shot her several times, and sexually molested her

before she died); State v. Leavitt, 775 P.2d 599 (Idaho 1989) (the victim

suffered 15 slash and stab wounds and her sexual organs had been

removed); State v. Charboneau, 774 P.2d 299 (Idaho 1989) (the defendant

shot his ex-wife repeatedly, but she could have been saved had she

received medical attention); State v. Beam , 766 P.2d 678 (Idaho 1988) (the

thirteen-year-old victim was raped, her throat slit, and she ultimately was

drowned); State v. Fetterly, 710 P.2d 1202 (Idaho 1985) (the defendant

bound his victim's hands and mouth with duct tape, and the victim was

nearly asphyxiated when the defendant killed him by stabbing him repeat-

edly); State v. Stuart, 715 P.2d 833 (Idaho 1985) (the defendant was con-

victed of murder by torture of a three-year-old child); State v. Gibson, 675

P.2d 33 (Idaho 1983)(the co-defendants beat one victim with a baseball

bat and then knocked out their other victim and strangled her).

aggravating factors that individually outweighed the mitigat-

ing factors. However, when the trial court weighed these fac-

tors it did not consider various mitigating circumstances that

Pizzuto has effectively argued should have been considered.

Specifically, the ineffectiveness of Pizzuto's counsel during

sentencing and the trial judge's improper use of mitigating

circumstances as aggravating (discussed below) skewed the

balancing process. Phillips v. Woodford, 267 F.3d 966, 985

(9th Cir. 2001) ("We consider the cumulative prejudicial

effect of multiple trial errors in determining whether relief is

warranted."). Because the body of mitigating evidence actu-

ally considered by the trial court is unreliable, a re-weighing

is required, and the unconstitutional HAC factor should be

eliminated to ensure that it does not comprise any part of the

balance.

IV.

Non-statutory Aggravating Factors

In its sentencing findings, the trial court listed as an aggra-

vating circumstance that Pizzuto "is unintelligent, uneducated,

unskilled and totally lacking in discipline and motivation such

that he will never be capable of securing or maintaining

employment or of being anything other than a counter produc-

tive element of society." The trial court's use of these factors

as aggravating is invalid and offends the Eighth Amendment.

We held in Beam v. Paskett that:

Under the Eighth Amendment, a state may not make application of the death penalty depend upon a par- ticular characteristic of the offense or offender if selection of such a characteristic "makes no measur- able contribution to acceptable goals of punishment. . . ." Thus, before a state may base its decision to execute a defendant on a defendant's particular char- acteristics, the state must demonstrate that its reli- ance on such characteristics serves to further its interest in retribution, in deterrence, or in the elimi- nation of those likely to kill again.

3 F.3d 1301, 1308 (9th Cir. 1993) (citations omitted). We held that it was improper to use Beam's non-violent, consensual or involuntary sexual conduct to find that he would be a continu- ing threat to society. In order to be constitutionally permissi- ble, Beam held that the state must "introduce evidence demonstrating a close link between the defendant's sexual history and his future dangerousness." Id. at 1309. The court concluded that the state failed to demonstrate this close link. Id.

The State suggests that there is a link between Pizzuto's

lack of intelligence, education, skills, discipline and motiva-

tion and the legitimate penological goal of rehabilitation.

However, the State presented no evidence establishing a

"close link" between the defendant's characteristics and his

ability to be rehabilitated. It is true that these qualities might

hinder his ability to gain employment, but the fact that he may

end up unemployed does not necessarily mean that he will

continue a life of crime, particularly since incarceration is

inevitable if he is not executed. Any possible link here is

extremely tenuous. The state has failed to show that selecting

Pizzuto's low I.Q. and lack of education and skills as reasons

to put him to death makes any measurable contribution to

acceptable goals of punishment. The trial court violated the

Eighth Amendment by relying on these characteristics as

aggravating circumstances.

This Eighth Amendment violation is not harmless error

because the evidence of Pizzuto's low I.Q. not only should

not have been considered aggravating, but it should have been

considered mitigating. According to the expert testimony of

Dr. Emery, Pizzuto's I.Q. of 72 indicates that he is borderline

mentally retarded. Courts have frequently held that borderline

mental retardation is an important mitigating factor. See, e.g.,

Williams v. Taylor, 529 U.S. 362 (2000). Pizzuto was entitled

to the opportunity to have this factor be considered mitigating.

See Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (holding that

the trier of fact must be allowed to consider and give effect

to all relevant mitigating evidence). This opportunity was

foreclosed when the trial judge improperly twisted this factor

into an aggravating circumstance. The trial judge's treatment

of this mitigating evidence was worse than an exclusion,

which would have been forbidden.

Because this error affected both sides of the balance, one

cannot be sure that the valid aggravating factors would have

outweighed all the mitigating evidence, including that which

was previously not considered. 15 Based on this violation and

the unconstitutionality of the HAC factor, we should vacate

the death sentence and remand for resentencing.

V.

Conclusion

Pizzuto's Fifth, Sixth, and Eighth Amendment rights were

violated at his capital sentencing, resulting in a punishment of

death. Pizzuto's death sentence should be vacated and the

case remanded for resentencing because the trial court relied

on Idaho's unconstitutional HAC aggravating factor and on

unconstitutional, non-statutory aggravating factors that should

have been considered mitigating. Even in the absence of these

errors, at a minimum, this case should be remanded to the dis-

trict court for an evidentiary hearing on Pizzuto's ineffective

_________________________________________________________________

15 Even were we to conclude that the trial judge was not required to con-

sider Pizzuto's borderline mental retardation as mitigating, the constitu-

tional violation inherent in considering it aggravating still would not be

harmless. As discussed with regard to the HAC factor above, when the

trial court concluded that other aggravating factors individually out-

weighed the mitigating factors, it did not consider the mitigating circum-

stances that Pizzuto's ineffective counsel failed to present to the court at

sentencing. Under these circumstances, any conclusion on harmlessness

should await the evidentiary hearing on Pizzuto's ineffectiveness claims.

assistance claims and the violation of his Fifth and Sixth

Amendment rights in the use of his uncounseled, non-

Mirandized statements made in presentence interviews. I can-

not agree that the numerous errors committed at Pizzuto's

sentencing were non-prejudicial. I dissent.