                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, JR.,                   No. 97-99017
             Petitioner-Appellant,              D.C. No.
               v.                            CV-92-00241-
ARVON J. ARAVE, Warden,                         S-AAM
            Respondent-Appellee.            District of Idaho,
                                                  Boise

                                                ORDER

                  Filed December 28, 2005

     Before: Betty B. Fletcher, Pamela Ann Rymer, and
             Ronald M. Gould, Circuit Judges.

          Order; Concurrence by Judge B. Fletcher


                           ORDER

  Petitioner’s motion to stay the mandate pending state court
proceedings is DENIED.



B. FLETCHER, Circuit Judge, specially concurring:

   I concur that petitioner’s motion to stay the mandate may
be denied. I write separately to emphasize that this result is
not mandated by Bell v. Thompson, 125 S.Ct. 2825 (2005), as
respondent claims. In Bell, the Supreme Court scolded the
Sixth Circuit for delay in issuing the mandate after denial of
certiorari, but Bell is factually distinguishable from our case.
In Bell, the Sixth Circuit issued an amended opinion some
                             16745
16746                  PIZZUTO v. ARAVE
seven months after the Supreme Court had denied certiorari.
Id. at 2830. The amended decision was a surprise to the state,
which had requested and been granted an execution date on
the assumption that federal habeas proceedings had termi-
nated with the denial of certiorari. Id. Instead of delineating
the scope of the Sixth Circuit’s discretion to continue to hold
the mandate after the denial of certiorari, the Court held that
holding the mandate was an abuse of discretion, because the
Court of Appeals had failed to provide the parties with notice
that it was reconsidering its decision. The decision leaves
open the question of whether Rule 41 of the Federal Rules of
Appellate Procedure limits the discretion of the Court of
Appeals to hold a mandate after denial of certiorari more
stringently than does an abuse-of-discretion standard. None-
theless, I concur that, although in my view preferable, the
present circumstances do not require a stay of the mandate
while petitioner litigates his Atkins claim in state court.

   The current proceedings in state court concern petitioner’s
claim that his mental retardation precludes the imposition of
a death sentence or execution under Atkins v. Virginia, 536
U.S. 304 (2002). Atkins held that the execution of the men-
tally retarded 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 (quoting Ford v. Wainwright, 477 U.S.
399, 405 (1986)). The record reflects that 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. Atkins is retroactive on collateral review. See Penry v.
Lynaugh, 492 U.S. 302, 330 (1989) (a holding that “the
Eighth Amendment prohibits the execution of mentally
retarded persons such as Penry . . . would fall under the first
exception to the general rule of nonretroactivity and would be
applicable to defendants on collateral review”). Assertion of
this defense was unavailable to Pizzuto until 2002. Our denial
of stay does not interfere with the ongoing state proceedings,
                      PIZZUTO v. ARAVE                  16747
nor will it preclude application to this court by Pizzuto for
permission to file a second or successive 28 U.S.C. § 2254
petition for review of an adverse ruling by the state court on
this issue.
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