FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, Jr., 

Petitioner,

No. 11-70623

v. 

OPINION

RANDY BLADES,

Respondent. 

Application to File Second or Successive

Petition Under 28 U.S.C. § 2255

Filed March 8, 2012

Before: Betty B. Fletcher, Ronald M. Gould, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould;

Dissent by Judge B. Fletcher

2679
COUNSEL

Joan M. Fisher, Office of Federal Defender for the Eastern

District of California, Capital Habeas Unit, Sacramento, California, for the petitioner.

L. LaMont Anderson, Office of the Idaho Attorney General,

Boise, Idaho, for the respondent.

OPINION

GOULD, Circuit Judge:

Gerald Ross Pizzuto, Jr., requests permission to file a second or successive application for a writ of habeas corpus in

the District of Idaho. See 28 U.S.C. § 2244(b)(3)(A). 

I

Pizzuto was convicted of two counts of murder in the first

degree, two counts of felony murder, one count of robbery,

2682 PIZZUTO v. BLADES
and one count of grand theft on March 27, 1986. He was sentenced to death for the murders of Berta Louise Herndon and

her nephew, Delbert Dean Herndon, on May 23, 1986. Our

opinion of February 6, 2002 details the circumstances of Pizzuto’s crimes and the evidence presented at his trial:

On July 25, 1985, Berta Herndon and her adult

nephew Delbert Herndon were robbed and murdered

and their property was stolen while they were camping in the Ruby Meadows 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 Delbert’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 Pizzuto, 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 Meadows 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

PIZZUTO v. BLADES 2683
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

“highwayman” and that, when Delbert Herndon

didn’t believe him, Pizzuto 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 previously 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.

2684 PIZZUTO v. BLADES
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 several 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 twotone gold wedding band in his possession, all of

which were subsequently identified 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

Herndon each suffered two fatal blows to the head,

PIZZUTO v. BLADES 2685
consistent with hammer blows, and in addition that

Delbert Herndon had been shot between the eyes

which would also be fatal. The pathologist 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

Herndon 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) suffered

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 presented eight witnesses, including Pizzuto’s former wife, Pamela

Relken, who testified that Pizzuto could be “very

violent, punishing” in that he had pushed her head

into a wall, drowned her cats and their puppy (who

2686 PIZZUTO v. BLADES
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

mailboxes, 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 presentence report

for the Herndon case; Bert[a] Herndon’s widower;

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

Pizzuto’s conviction and sentence were upheld on direct

review. On state collateral review, the Idaho Supreme Court

vacated Pizzuto’s robbery conviction, concluding it merged as

a lesser-included offense of felony-murder. Pizzuto’s other

convictions and his sentence were upheld on state collateral

review and federal habeas corpus review. 

PIZZUTO v. BLADES 2687
On March 2, 2011, Pizzuto filed a motion to file a successive habeas corpus petition challenging his conviction and

sentence. He alleges seven claims—two claims of prosecutorial misconduct, one claim of judicial misconduct, one claim

of judicial bias, a claim of actual innocence, a claim of cumulative error, and a claim that Idaho unconstitutionally fails to

provide a post-conviction procedure with means of adequately

reviewing constitutional claims in capital cases, as applied to

Pizzuto—based on evidence previously unavailable.

II

[1] Section 2244(b)(2) of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) requires dismissal of a second

or successive habeas corpus application unless:

(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court,

that was previously unavailable; or

(B) (i) the factual predicate for the claim could not

have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of

the underlying offense.

28 U.S.C. § 2244(b)(2).

[2] “Permitting a state prisoner to file a second or successive federal habeas corpus petition is not the general rule, it

is the exception, and an exception that may be invoked only

when the demanding standard set by Congress is met.” Bible

2688 PIZZUTO v. BLADES
v. Schriro, 651 F.3d 1060, 1063 (9th Cir. 2011) (per curiam).

To the extent that Pizzuto raises claims not previously presented, he must make a prima facie showing that his application satisfies the requirements of § 2244(b). § 2244(b)(3)(C);

King v. Trujillo, 638 F.3d 726, 729 (9th Cir. 2011) (per

curiam). In other words, Pizzuto must “make a prima facie

showing to us that his claim (1) is based on newly discovered

evidence and (2) establishes that he is actually innocent of the

crimes alleged.” King, 638 F.3d at 729-30.

A

[3] We turn first to Pizzuto’s claim of judicial bias. Pizzuto

claims that he is entitled to file a successive motion under

§ 2244(b)(2) because of new facts related to judicial misconduct in his trial and sentence of death. However, in his first

federal habeas corpus petition Pizzuto made a claim of judicial bias against Judge Reinhardt, and we determined that he

procedurally defaulted the claim because he was unable to

show cause for not raising it in his first petition for postconviction relief in state court. Pizzuto, 280 F.3d at 974-75.

A claim presented in a second or successive application under

§ 2254 that was presented in a prior application “shall” be dismissed. § 2244(b)(1); Tyler v. Cain, 533 U.S. 656, 661 (2001)

(in the context of a second or successive habeas application,

noting that “[i]f the prisoner asserts a claim that he has

already presented in a previous federal habeas petition, the

claim must be dismissed in all cases”). It is only where a petitioner asserts a new claim that § 2244(b)(2) applies. Id.

[4] “[T]he dismissal of a first petition with prejudice

because of a procedural default (and a failure to show cause

and prejudice) forecloses the possibility that the underlying

claims will be addressed by a federal court . . . . Such a dismissal therefore constitutes a disposition on the merits and

renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d

1028, 1029 (9th Cir. 2009) (citing Henderson v. Lampert, 396

PIZZUTO v. BLADES 2689
F.3d 1049, 1053 (2005)). Pizzuto claimed judicial bias, relying, in part, on the same evidence that he presents here, that

Judge Reinhardt made public statements of his intent to

impose the death penalty before the sentencing hearing. Pizzuto, 280 F.3d at 974. He also introduces new evidence that

supports his claim of judicial bias. However, federal courts

“will not consider new factual grounds in support of the same

legal claim that was previously presented.” Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999). Therefore, Pizzuto’s

application to file a second or successive application for

habeas corpus relief regarding judicial bias must be denied.1

B

We turn next to Pizzuto’s other claims related to his conviction and conclude that he is unable to meet the high standards of § 2244(b)(2)(B). To be able to file a second or

successive habeas petition, Pizzuto must show that he is actually innocent—that “no reasonable factfinder would have

found [Pizzuto] guilty of the underlying offense.”

§ 2244(b)(2). Even accepting as true Pizzuto’s factual allegations, Pizzuto has made no such showing.

Pizzuto presents the following newly discovered evidence:

(1) the testimony of James Rice, one of the prosecution’s witnesses, was negotiated before the trial in a meeting with the

prosecutor, the trial and sentencing judge, and the appointed

counsel of Rice; (2) James Rice perjured himself when he testified regarding the promises he received in exchange for his

testimony; (3) the prosecutor and judge knew the testimony

was perjured and did nothing to correct or prevent it; (4) the

1Pizzuto’s claim of judicial misconduct (relating to the trial judge’s participation in orchestrating Rice’s testimony) is sufficiently different from

the claim of judicial bias (relating to the trial judge’s predisposition to

impose the death penalty) he presented in his first federal habeas petition

that it is not barred as a claim presented in a prior application.

§ 2244(b)(2). 

2690 PIZZUTO v. BLADES
judge and county sheriff coordinated physical evidence to corroborate the version of events to which Rice testified; (5) the

judge and sheriff maintained a relationship that likely resulted

in fabrication of evidence—namely the presence of blood and

a shell casing in the cabin even though prior searches of the

cabin had failed to reveal such evidence. Pizzuto also relies

on an affidavit by his sister Angelinna stating that during her

testimony she was drunk and on drugs provided by the prosecution and that the prosecutor had told her how to testify.

[5] If true, these allegations raise troubling issues about

Pizzuto’s trial. However, without minimizing those allegations, we must follow AEDPA’s “extremely stringent”

requirements. Greenawalt v. Stewart, 105 F.3d 1268, 1277

(9th Cir. 1997). The question is not whether this jury, knowing of this prosecutorial and judicial misconduct would have

acquitted Pizzuto, but whether, “in light of the evidence as a

whole . . . no reasonable factfinder would have found [Pizzuto] guilty.” § 2244(b)(2).

[6] Even if we credit Pizzuto’s claim that “[n]o reasonable

juror . . . would have found Rice credible, had the newly discovered evidence been available and presented at trial,” and

even if we discount Angelinna’s testimony, other unchallenged evidence provides a sufficient basis on which a reasonable factfinder could find Pizzuto guilty of murdering the

Herndons. Though the testimony of Rice and Angelinna was

part of the government’s case, the prosecution did not rest

solely on this testimony. William and Lene Odom’s and

Roger Bacon’s testimony, forensic evidence, and the fact that

Delbert Herndon’s belongings were found with Pizzuto are

sufficient to support a finding of guilt.

Lene Odom testified that Pizzuto went camping with her

family and Rice and that she overheard the three men discussing robbing two fishermen. She also testified that, after the

men decided not to do so because one of the fishermen had

a gun, Pizzuto took the gun they had brought with them and

PIZZUTO v. BLADES 2691
went off in the direction of the Herndons’ pickup and that

Odom and Rice followed about an hour later. Later, Pizzuto

drove the Herndons’ pickup back to the cabin the Odoms,

Rice, and Pizzuto were using, and the three men divided up

money. 

Odom testified that Pizzuto came out of the Herndons’

cabin with a hammer in his hand, and that he reported to

Odom that he had told “the guy and lady that he was a highwayman” and that he “put those people to sleep permanently.”

Carl Koenen, who performed the autopsies, testified that both

of the Herndons’ injuries were caused by something small and

dense, like a hammer. Though Rice admitted to shooting Delbert in the head, Koenen testified that Delbert had three fatal

injuries—crushing fractures on the right and left sides of his

head and the gunshot wound—any of which were individually

fatal. He further testified that both Herndons were found with

their wrists tied behind their backs with shoelaces. 

Sheriff Baldwin testified that he went to Great Falls, Montana to pick up Pizzuto and transport him back to the state of

Idaho. Sheriff Baldwin also picked up evidence—including a

pistol, a ring, and boots. Joe Herndon, Delbert Herndon’s

brother, testified that those items belonged to Delbert. 

Bacon’s description of the manner in which Pizzuto robbed

him was similar to Pizzuto’s robbery of the Herndons. During

both robberies Pizzuto described himself as a “highwayman.”

Bacon testified that Pizzuto tied his hands with shoelaces in

a manner similar to that in which the Herndons’ hands were

tied. Both the binding in shoelaces and the use of the term

“highwayman” are not so commonplace as to suggest that a

reasonable factfinder could not have thought Pizzuto committed the murders. Instead, a reasonable factfinder could think

that such evidence helped to prove guilt of the murders

beyond a reasonable doubt.

[7] Even if the testimony of Rice and Angelinna were

completely removed from consideration, there was very

2692 PIZZUTO v. BLADES
strong evidence of guilt: Pizzuto had Delbert Herndon’s

belongings. He tied Bacon up with shoelaces in a similar

manner as the Herndons had been tied, calling himself a

“highwayman” in both cases. Odom testified that Pizzuto

claimed to “put those people to sleep permanently.” Both victims had deadly blows to the head consistent with being

caused by a hammer, and Odom saw Pizzuto with a hammer.

Considering the weight of this other evidence, we conclude

that Pizzuto has not shown by clear and convincing evidence

that no reasonable factfinder would have found him guilty as

required by § 2244(b)(2)(B)(ii).

C

[8] Section 2244(b)(2) applies not only to the underlying

conviction but also to the imposition of the death penalty.

Thompson v. Calderon, 151 F.3d 918, 923 (9th Cir. 1998). To

succeed, Pizzuto has to establish by “clear and convincing

evidence that . . . no reasonable factfinder would have found

[him] guilty” of the aggravating factors used to sentence him

to death. § 2244(b)(2)(B)(ii). “A claim of actual innocence of

the death penalty would require a showing that one of the statutory aggravators or other requirements for the imposition of

the death penalty had not been met.” Beaty v. Schriro, 554

F.3d 780, 784 (9th Cir. 2009). Mitigating factors are not taken

into consideration. Id.; see also Sawyer v. Whitley, 505 U.S.

333, 344-345 (1992). 

[9] Under Idaho law at the time of Pizzuto’s sentencing, if

the sentencing judge found one of eleven statutory aggravating circumstances to have been established beyond a reasonable doubt, he was required to impose a sentence of death

unless he found that mitigating factors outweighed the aggravating factors. IDAHO CODE § 19-2515 (1986). 

Judge Reinhardt found five statutory aggravating circumstances beyond a reasonable doubt: (1) at the

time Pizzuto murdered Delbert Herndon, he also

PIZZUTO v. BLADES 2693
murdered Berta Herndon; (2) the murders were especially heinous, atrocious, cruel and manifested

exceptional depravity; (3) by the murders and circumstances surrounding their commission, Pizzuto

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 murders in this case, Pizzuto had

exhibited a propensity to commit murder which will

probably constitute a continuing threat to society.

Pizzuto, 280 F.3d at 957.

[10] Pizzuto cannot get past the first statutory aggravating

circumstance found by Judge Reinhardt—that at the time he

murdered Delbert Herndon, he also murdered Berta Herndon.

As discussed above, he has not presented enough evidence to

show with clear and convincing evidence that no reasonable

factfinder would have found him guilty of committing both

murders. Therefore, he cannot show actual innocence of the

death penalty because any one of the aggravating factors were

individually sufficient to support the sentence.

D

Because we conclude that Pizzuto does not satisfy the

requirements of the second prong of § 2244(b)(2)(B), that he

show actual innocence of the underlying crime or of the

aggravating factors used to impose the death penalty, we need

not, and do not, address prong one: whether he has shown due

diligence. See Babbitt, 177 F.3d at 747 (denying the second

or successive application for failure to meet the due diligence

prong and noting that the actual innocence prong need not be

addressed).

III

[11] We hold that Pizzuto’s claims do not satisfy the

requirements of § 2244(b)(2). Pizzuto’s Motion to File Successive Petition for Writ of Habeas Corpus is DENIED.

2694 PIZZUTO v. BLADES
MOTION DENIED.

B. FLETCHER, Circuit Judge, dissenting:

I dissent. We should grant Pizzuto’s motion to file a second

or successive application for a writ of habeas corpus pursuant

to 28 U.S.C. § 2244(b)(2)(B). Pizzuto raises serious claims of

judicial and prosecutorial misconduct that were not presented

in his prior habeas applications. The factual predicate for

these claims was revealed only in 2005 by Pizzuto’s codefendant and could not have been discovered previously

even through the exercise of due diligence. Pizzuto’s claims,

if proved, will establish such pervasive misconduct that no

reasonable factfinder would have found Pizzuto guilty of the

underlying offense. He should be afforded the opportunity to

present these claims in an application for a writ of habeas corpus.

I am shocked by the conduct in this case. Nothing can be

more disturbing to a judge than a conviction and death sentence obtained by a corrupt prosecutor colluding with a corrupt judge. The State asks us to deny Pizzuto an opportunity

to challenge just such a conviction and sentence. The majority

is willing to do just that. But no fair legal system — and certainly not our American legal system — should allow a conviction and death sentence based in part on perjured testimony

procured by the collusion of the judge, the prosecutor, and

counsel for Pizzuto’s co-defendant.

As the majority recognizes, the heart of Pizzuto’s claim is

that the testimony of James Rice, one of the prosecution’s key

witnesses, was negotiated before the trial during ex parte

meetings among the prosecutor, the judge who presided over

Pizzuto’s trial and sentencing (as well as Rice’s guilty plea

and sentencing), and Rice’s counsel. Both Rice and Pizzuto

(along with William and Lene Odom) were originally charged

PIZZUTO v. BLADES 2695
with the murders of Berta and Delbert Herndon. Rice and

William Odom pleaded guilty to lesser offenses, and charges

against Lene Odom were dropped, in exchange for their

agreement to testify against Pizzuto. 

At Pizzuto’s trial in 1986, Rice testified that in exchange

for his testimony he would be spared the death penalty but

still would face the possibility of life in prison. In September

2005 — long after Pizzuto’s conviction was final and his first

habeas petition had been denied — Rice stated, for the first

time, that he had been promised a sentence of twenty years in

exchange for his testimony against Pizzuto, and that he was

assured he would actually serve only fourteen years, eight

months, and sixteen days of that sentence. Immediately after

Rice revealed this information, Pizzuto’s counsel located

Rice’s ex-wife, who corroborated Rice’s affidavit. Rice’s exwife explained that:

I communicated with Jim [Rice] until he was sentenced. He told me about making a deal where he

would plead guilty and testify against Jerry [Pizzuto]

in exchange for a lower sentence. Jim knew prior to

his sentencing hearing that he was going to be sentenced to twenty years, and that he would actually

serve less than that with good behavior. . . . I am certain that Jim knew what his sentence was going to be

prior to the sentencing hearing.

Seeking further corroboration of these statements, Pizzuto’s

lawyers obtained the files and billing records of Rice’s counsel. Those files revealed something even more troubling than

Rice’s false trial testimony about what he received in

exchange for his guilty plea: the fact that Judge George Reinhardt participated in negotiating Rice’s testimony and plea

deal. Judge Reinhardt was the judge who presided over Rice’s

guilty plea, Pizzuto’s trial, and Pizzuto’s sentencing. 

The billing records of Rice’s counsel showed that on January 9, 1986, Rice’s counsel received a phone call from Judge

2696 PIZZUTO v. BLADES
Reinhardt. The next entry, on January 13, is described as two

hours of “serious consultations and negotiations for pleabargaining conference with the prosecutor.” Then, after consulting with Rice about the proposed plea bargain, on January

16 there is an entry for three hours described as “[c]onference

at Crossroads [a local restaurant] with Judge Reinhardt, prosecutor on plea agreement.” Notes from the files of Rice’s

counsel confirmed that they had met with Judge Reinhardt

and the prosecutor at 6:00 a.m. on January 16 at the Crossroads restaurant. The notes also described the meeting as “discussed negotiations for Rice to enter plea to reduced charges”

and noted that “certain questions [were] raised by the Judge”

regarding Rice’s version of the murders. 

A week later, on January 23, Judge Reinhardt took Rice’s

guilty plea. Throughout the plea colloquy, Judge Reinhardt

never disclosed his involvement in the negotiations. According to the affidavits of Rice and his ex-wife, before the plea

hearing Rice’s attorneys had assured him that they had a close

relationship with Judge Reinhardt and the prosecutor, and that

they had promised that if Rice pleaded guilty he would be

sentenced to twenty years and would actually serve only fourteen years, eight months, and sixteen days. Rice claims that

at the same time his lawyers made these assurances, they

instructed him to say “no” at the plea colloquy when asked if

he had been promised a certain sentence and to say “yes”

when asked if he understood that he could receive a life sentence. When Rice testified against Pizzuto, he told the jury

that he was facing a possible sentence of life in prison. During

closing argument, the prosecutor cited that possible sentence

as evidence of Rice’s credibility: “Jim Rice pled guilty to two

counts of second degree murder. . . . Jim Rice expects, and he

told you from the witness stand, that he may spend the rest of

his natural life in prison. Got a great deal, didn’t he?” 

The majority opinion recognizes, as it must, that these facts

form the basis of Pizzuto’s claims that the judge committed

misconduct by helping to negotiate Rice’s guilty plea and

PIZZUTO v. BLADES 2697
what Rice’s testimony would be at trial; that the judge and

prosecutor committed further misconduct by failing to disclose to Pizzuto’s counsel Rice’s plea bargain and the judge’s

involvement in it; and that Rice committed perjury at Pizzuto’s trial, condoned by the judge and prosecutor, when he testified that he expected a possible life sentence. Whether Rice

also perjured himself concerning the circumstances of the

murder we know not. Pizzuto also presents an affidavit from

his sister Angelinna stating that the prosecutor and sheriff

provided her with alcohol and drugs in exchange for her testimony and that her testimony was coached by the prosecutor.

The majority concludes that Pizzuto should not be allowed

to present these claims in a second or successive habeas petition because, even accepting Pizzuto’s factual allegations as

true, Pizzuto cannot show that “no reasonable factfinder

would have found [him] guilty of the underlying offense,” as

required by 28 U.S.C. § 2244(b)(2). I respectfully disagree

with this conclusion.

Despite the existence of other evidence against Pizzuto,

knowledge of the misconduct by the prosecutor and the judge

would have undermined any reasonable jury’s faith in the

entirety of the prosecution’s case. “Providing an accused with

the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”

Duncan v. Louisiana, 391 U.S. 145, 156 (1968). Any reasonable jury would have fulfilled this role as a safeguard had it

known that: (1) the supposedly impartial judge had in fact colluded with the prosecutor in securing Rice’s testimony to help

convict Pizzuto; (2) the judge and prosecutor promised Rice

a particular sentence before his guilty plea; (3) the judge and

prosecutor allowed Rice to perjure himself regarding his plea

bargain; and (4) the prosecutor and sheriff coached Angelinna

to testify and exploited her drug and alcohol addictions. 

It is unfortunate that the shocking facts of this case were

not uncovered sooner. But fortunate, indeed, that they were

2698 PIZZUTO v. BLADES
eventually uncovered, even though they come to us in the

form of a request to bring a second or successive habeas petition. We should rejoice in a system that allows a second

habeas challenge when diligent counsel is able to uncover the

facts and present them to us before a man is put to death. 

When faced with the corruption of our legal system, we

must start over. The first step is to allow Pizzuto to file a second petition for habeas corpus in the district court. Nothing

more nor less is required of us. I dissent from the majority’s

refusal to take that first step.

PIZZUTO v. BLADES 2699