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Prieto v. Zook

United States Court of Appeals, Fourth Circuit

June 30, 2015

ALFREDO PRIETO, Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison, Respondent - Appellee

Argued May 13, 2015

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. (3:13-cv-00849-HEH). Henry E. Hudson, District Judge.

ARGUED:

Miriam Bamberger Airington, BOWEN, CHAMPLIN, FOREMAN & ROCKECHARLIE PLLC, Richmond, Virginia, for Appellant.

Alice Theresa Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

ON BRIEF:

Cary B. Bowen, BOWEN, CHAMPLIN, FOREMAN & ROCKECHARLIE PLLC, Richmond, Virginia, for Appellant.

Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before MOTZ, SHEDD, and DIAZ, Circuit Judges. Judge Motz wrote the opinion, in which Judge Shedd and Judge Diaz joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge

Alfredo Rolando Prieto appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that the Eighth Amendment prohibition on the execution of intellectually disabled persons, as set forth in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Hall v. Florida, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), renders his two death sentences unconstitutional. We affirm.

I.

In 2007, a Virginia jury convicted Prieto of two counts of capital murder, two counts of use of a firearm in the commission of murder, grand larceny, and rape. Prieto v. Commonwealth,278 Va. 366, 682 S.E.2d 910, 914 (Va. 2009) (" Prieto I" ).[1] Discovery of juror misconduct at the sentencing phase of the 2007 trial led to a mistrial, but in 2008, a second jury convicted Prieto on all counts. Id. at 913. During the sentencing phase of his second ...


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