Gerald Ross Pizzuto, Jr. v. A.J. Arave, Warden ( 2004 )

ORDER

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

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

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

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

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

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

15. Currently before the Idaho state court is Pizzuto’s petition for habeas relief based on his claim that under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), his mental retardation precludes imposition of the death penalty and execution. Pizzuto’s IQ is 72. Atkins notes that an “IQ between 70 and 75 or lower ... is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” Id. at 309 n. 5, 122 S.Ct. 2242. The Court held that execution of such persons “is excessive” under the Eighth Amendment “and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” Id. at 321, 122 S.Ct. 2242 (citation omitted). I would stay further proceedings pending the outcome of ongoing state proceedings. The majority has denied a stay and declines even to require the parties to advise us of the status of the state proceedings.

The majority opinion has not been amended.