and Submitted December 11, 2018 San Francisco, California
from the United States District Court for the District of
Idaho, No. 1:05-cv-00516-BLW B. Lynn Winmill, Chief District
M. Fisher (argued), Assistant Federal Defender; Heather E.
Williams, Federal Defender; Office of the Federal Public
Defender, Sacramento, California; for Petitioner-Appellant.
LaMont Anderson (argued), Chief, Capital Litigation Unit;
Lawrence G. Wasden, Attorney General; Criminal Law Division,
Office of the Attorney General, Boise, Idaho; for
Before: Raymond C. Fisher, Ronald M. Gould and Johnnie B.
Rawlinson, Circuit Judges.
Corpus /Death Penalty
panel affirmed the district court's denial of Gerald Ross
Pizzuto, Jr.'s successive habeas corpus petition in which
Pizzuto challenged, based on Atkins v. Virginia, 536
U.S. 304 (2002), the Idaho Supreme Court's 2008 decision
that his execution is not barred under an Idaho law
prohibiting the execution of intellectually disabled
28 U.S.C. § 2254(d)(1), the panel held that the record
does not establish that the Idaho Supreme Court's
decision was contrary to or involved an unreasonable
application of United States Supreme Court precedent. The
panel wrote that although the state court's decision was
contrary to clinical standards in place at the time, it was
not obvious at that time that strict adherence to the
clinical standards was required. The panel also wrote that
although the state court's requirement of an IQ of 70 or
below is contrary to Hall v. Florida, 572 U.S. 701
(2014); Brumfield v. Cain, 135 S.Ct. 2269 (2015);
and Moore v. Texas, 137 S.Ct. 1039 (2017), these
decisions all postdated the state court's decision, and
it was not obvious under Atkins alone that, for
Eighth Amendment purposes, an individual with an IQ test
score between 70 and 75 or lower may show intellectual
disability by presenting additional evidence regarding
difficulties in adaptive functioning.
28 U.S.C. § 2254(d)(2), the panel held that the record
does not establish that the Idaho Supreme Court's
decision was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding. The panel rejected Pizzuto's contention that
the state court's factual determinations are unreasonable
merely because the state court did not apply the clinical
definitions of intellectual disability. The panel rejected
Pizzuto's contention that the state court unreasonably
failed to consider his school records as evidence of
subaverage intellectual functioning. The panel rejected
Pizzuto's argument that the state court unreasonably
determined that his IQ could have declined in adulthood due
to drug abuse and epilepsy. Regarding Pizzuto's argument
that the state court's denial of an evidentiary hearing
was based on an unreasonable determination of the facts, the
panel wrote that the Idaho Supreme Court never addressed the
question of whether Pizzuto raised a reasonable doubt
regarding his intellectual capacity, and that the Idaho
Supreme Court's failure to apply a "reasonable
doubt" standard was not contrary to or an unreasonable
application of Atkins. The panel wrote that under
the circumstances, the denial of an evidentiary hearing did
not render the state court's factfinding process
unreasonable under § 2254(d)(2)'s highly deferential
28 U.S.C. § 2254(d) is not satisfied, the panel held
that the district court properly denied habeas relief. The
panel did not need to address Pizzuto's remaining
appellate arguments or review his Atkins claim de
novo. Accordingly, the panel did not address whether Pizzuto
is intellectually disabled or whether his execution would
violate the Eighth Amendment. The panel wrote that its
decision does not preclude the Idaho courts from
reconsidering those questions in light of intervening events.
Ross Pizzuto, Jr., appeals the district court's denial of
his successive petition for a writ of habeas corpus, in which
he sought relief based on the United States Supreme
Court's decision in Atkins v. Virginia, 536 U.S.
304 (2002). In Atkins, the Supreme Court held that
the Eighth Amendment prohibits the execution of
intellectually disabled persons. In response to
Atkins, Idaho enacted a law prohibiting the
execution of intellectually disabled offenders. See
Idaho Code § 19-2515A. Pizzuto challenges the Idaho
Supreme Court's decision that his execution is not barred
under that state law. See Pizzuto v. State
(Pizzuto I), 202 P.3d 642 (Idaho 2008). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and
we affirm the district court's denial of Pizzuto's
petition. Because the record does not establish that the
state court's adjudication of Pizzuto's
Atkins claim resulted in a decision that "was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States," or "was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,"
habeas relief may not be granted. See 28 U.S.C.
§ 2254(d). Because habeas relief is barred under §
2254(d), we do not address whether Pizzuto is intellectually
disabled, nor whether his execution would violate the Eighth
1986, a state trial court judge sentenced Pizzuto to death
for the murders of Berta Herndon and her nephew Del Herndon.
See Pizzuto I, 202 P.3d at 645. The Idaho Supreme
Court summarized the murders as follows:
Pizzuto approached [the Herndons] with a .22 caliber rifle as
they arrived at their mountain cabin and made them enter the
cabin. While inside, he tied the Her[n]dons' wrists
behind their backs and bound their legs in order to steal
their money. Some time later, he bludgeoned Berta Herndon to
death with hammer blows to her head and killed Del Herndon by
bludgeoning him in the head with a hammer and shooting him
between the eyes. Pizzuto murdered the Her[n]dons just for
the sake of killing and subsequently joked and bragged about
the killings to his associates.
years later, the Supreme Court decided Atkins,
holding that executions of intellectually disabled persons
constitute "cruel and unusual punishments"
prohibited by the Eighth Amendment to the United States
Constitution. See U.S. Const. amend. VIII. Citing
"powerful evidence that today our society views mentally
retarded offenders as categorically less culpable than the
average criminal," the Court concluded that "a
national consensus has developed against" such
executions. Atkins, 536 U.S. at 316.
Court, however, did not adopt any single definition of
intellectual disability. It noted that states'
"statutory definitions of mental retardation [we]re not
identical, but generally conform[ed] to the clinical
definitions set forth" by the American Association on
Mental Retardation (AAMR) and the American Psychiatric
Association. See id. at 317 n.22. At the time, the
AAMR - now known as the American Association on Intellectual
and Developmental Disabilities (AAIDD) - defined intellectual
disability as follows:
Mental retardation refers to substantial limitations
in present functioning. It is characterized by significantly
subaverage intellectual functioning, existing concurrently
with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care,
home living, social skills, community use, self-direction,
health and safety, functional academics, leisure, and work.
Mental retardation manifests before age 18.
Id. at 308 n.3 (quoting AAMR, Mental Retardation:
Definition, Classification, and Systems of Supports 5 (9th
ed. 1992)). The American Psychiatric Association's
definition was similar:
The essential feature of Mental Retardation is significantly
subaverage general intellectual functioning (Criterion A)
that is accompanied by significant limitations in adaptive
functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety
(Criterion B). The onset must occur before age 18 years
(Criterion C). Mental Retardation has many different
etiologies and may be seen as a final common pathway of
various pathological processes that affect the functioning of
the central nervous system.
Id. (quoting American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 41 (4th
ed. 2000) (DSM-IV)). The Court noted 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, and
that "'[m]ild' mental retardation is typically
used to describe people with an IQ level of 50-55 to
approximately 70," id. at 308 n.3 (quoting
DSM-IV at 42-43).
however, did not expressly adopt these clinical definitions
of intellectual disability. The Court instead left that
question to the states:
To the extent there is serious disagreement about the
execution of mentally retarded offenders, it is in
determining which offenders are in fact retarded. In this
case, for instance, the Commonwealth of Virginia disputes
that Atkins suffers from mental retardation. Not all people
who claim to be mentally retarded will be so impaired as to
fall within the range of mentally retarded offenders about
whom there is a national consensus. As was our approach in
Ford v. Wainwright, 477 U.S. 399 (1986), with regard
to insanity, "we leave to the State[s] the task of
developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences."
Id., at 405, 416-417.
Id. at 317 (alterations in original).
after the Atkins decision, Idaho adopted a statute
prohibiting imposition of the death penalty for
intellectually disabled offenders. See 2003 Idaho
Sess. Laws 399 (codified at Idaho Code § 19-2515A(3)).
The statute defines intellectual disability as follows:
(a) "Mentally retarded" means significantly
subaverage general intellectual functioning that is
accompanied by significant limitations in adaptive
functioning in at least two (2) of the following skill areas:
communication, self-care, home living, social or
interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure,
health and safety. The onset of significant subaverage
general intelligence functioning and significant limitations
in adaptive functioning must occur before age eighteen (18)
(b) "Significantly subaverage general intellectual
functioning" means an intelligence quotient of seventy
(70) or below.
Id. at 398 (codified at Idaho Code §
light of Atkins, Pizzuto filed a fifth petition for
state post-conviction relief, challenging his death sentence
on the ground that he was intellectually disabled. See
Pizzuto I, 202 P.3d at 645. In July 2003, the state
moved to summarily dismiss Pizzuto's petition. See
id. at 646. In August 2003, Pizzuto moved to disqualify
the state trial court judge. See id. In October
2004, Pizzuto moved for additional psychological testing,
asking that he be transported to an appropriate medical
facility for testing in connection with a neuropsychiatric
evaluation by Dr. James R. Merikangas. Pizzuto did not notice
the motion for a hearing, however. See id.
at 655. In January 2005, the state trial court
denied the motion for disqualification. See id. at
seeking dismissal of Pizzuto's petition, the state argued
that the petition was untimely under Idaho law and,
alternatively, that Pizzuto had failed to establish a prima
face case of intellectual disability under the new Idaho
statute.With respect to the latter contention, the
state noted that there were three elements of intellectual
disability - subaverage intellectual functioning, significant
limitation in adaptive functioning and an onset before age
18. With respect to the first criterion, the state noted that
Pizzuto had "a verbal IQ of 72" - based on an IQ
test administered by Dr. Michael Emery in 1985 - but that
"[t]he Statute says 70 or below," and "72 is
not 70 or below." In addition, because Pizzuto's IQ
score of 72 was obtained when he was 28 years old, the state
argued that "we have no indication of what his IQ was -
no testing, at least - what his IQ . . . was before his 18th
birthday." The state noted that the court had "no
evidence of an IQ test prior to age 18."
both opposed the state's motion for summary dismissal
and, in September 2005, moved for summary judgment, arguing
that he had, as a matter of law, established a prima facie
case of intellectual disability. See id. Pizzuto
argued that the state trial court should deny the state's
motion for summary dismissal and grant his motion for summary
judgment. In the alternative, Pizzuto argued that his October
2004 motion for additional testing should be granted and the
matter set for trial. See id. at 655-56 & n.9.
addressing whether Pizzuto had made a prima facie showing of
intellectual disability under the Idaho statute, both sides
recognized that Idaho's requirement of an IQ of 70 or
below was inconsistent with the AAMR and American Psychiatric
Association clinical standards in effect at the time. Counsel
for Pizzuto, however, acknowledged that Atkins did
not "dictate what retardation is," while counsel
for the state emphasized that "[t]he United States
Supreme Court said that the states were permitted to define
mental retardation . . . basically as they saw fit." The
state recognized that the DSM and AAMR manual "talk[ed]
about . . . a 70 IQ plus or minus five," but the state
emphasized that "the Idaho Statute doesn't say that.
[Section] 19-2515A is very specific, 70 or below. It
doesn't say plus or minus five. Seventy or below, period,
end of story." The state observed that "some states
have actually gone below the 70 and one state . . . has gone
to 75." But "Idaho chose 70."
state argued, moreover, that the margin of error was of no
use to Pizzuto, because his "actual" IQ was as
likely to be 77 as 67:
[Section] 2515A says that if the Court finds by a
preponderance of the evidence that the defendant is mentally
retarded - preponderance of the evidence, more likely than
not, . . . something over 50 percent. Well, isn't it just
as likely that Pizzuto's IQ is 77 as opposed to 67?
That's not a preponderance of the evidence. So, you have
to go with the 72 and that's the only number that this
Court has before it, the only number.
December 2005, after a hearing on the motions, the state
trial court dismissed Pizzuto's petition on the grounds
that it had not been timely filed under state law and that
Pizzuto had failed to raise a genuine issue of material fact
supporting his claim of intellectual disability. See
id. at 646. Pizzuto timely appealed to the Idaho Supreme
Court. See id.
2008 decision, the Idaho Supreme Court affirmed the state
trial court's denial of Pizzuto's Atkins
claim. See Pizzuto I, 202 P.3d 642. The court noted
that, to survive summary dismissal, Pizzuto had to present
evidence establishing a prima facie case - i.e., enough
evidence to allow the factfinder to infer the fact at issue
and rule in his favor - on each element of his claim under
§ 19-2515A(1). See id. at 650. The court
interpreted the Idaho statute as requiring proof of three
elements: "(1) an intelligence quotient (IQ) of 70 or
below; (2) significant limitations in adaptive functioning in
at least two of the ten areas listed; and (3) the onset of
the offender's IQ of 70 or below and the onset of his or
her significant limitations in adaptive functioning both must
have occurred before the offender turned age eighteen."
Id. at 651.
court concluded that Pizzuto failed to establish a prima
facie case as to the first element - an IQ of 70 or below.
The record reflected only a single IQ test score for Pizzuto,
a score of 72 on the test administered by Dr. Emery in
December 1985, shortly before Pizzuto's 29th birthday.
See id. The court acknowledged Pizzuto's
argument that "an IQ score is only accurate within five
points," but it found "two problems" with
Pizzuto's argument that "his actual IQ could have
been five points lower or higher than 72": first, it
would be just as reasonable for the state trial court to
infer that his actual IQ was 77 as it would be to infer that
it was 67; second, the state trial court was permitted to
infer that his IQ had decreased during the 11 years between
his 18th birthday and the date of his IQ test.
court noted that Pizzuto "did not offer any expert
opinion" showing that he "had an IQ of 70 or below
at the time of the murders and prior to his eighteenth
birthday." Id. at 655. Accordingly, the court
held that the trial court did not err in granting summary
judgment to the state. See id.
granted Pizzuto permission to file a successive federal
habeas petition on his Atkins claim. After
additional testing and an evidentiary hearing, the federal
district court denied Pizzuto's petition. See Pizzuto
v. Blades (Pizzuto II), No. 1:05-CV-516-BLW,
2012 WL 73236, at *21 (D. Idaho Jan. 10, 2012). We initially
affirmed. See Pizzuto v. Blades (Pizzuto
III), 729 F.3d 1211, 1224 (9th Cir. 2013).
Pizzuto's petition for rehearing was pending, however,
the Supreme Court decided Hall v. Florida, 572 U.S.
701 (2014). In Hall, the Supreme Court considered a
Florida law defining intellectual disability "to require
an IQ test score of 70 or less. If, from test scores, a
prisoner is deemed to have an IQ above 70, all further
exploration of intellectual disability is foreclosed."
Id. at 704. The Court held that "[t]his rigid
rule . . . creates an unacceptable risk that persons with
intellectual disability will be executed, and thus is
outset, the Court held that, "[i]n determining who
qualifies as intellectually disabled, it is proper to consult
the medical community's opinions." Id. at
710. The Court explained that "[t]he legal determination
of intellectual disability is distinct from a medical
diagnosis, but it is informed by the medical community's
diagnostic framework." Id. at 721.
once again turning to the clinical definitions established by
the AAMR and the American Psychiatric Association, the Court
explained that "the medical community defines
intellectual disability according to three criteria:
significantly subaverage intellectual functioning, deficits
in adaptive functioning (the inability to learn basic skills
and adjust behavior to changing circumstances), and onset of
these deficits during the developmental period."
Id. at 710 (citing American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 33 (5th
ed. 2013) (DSM-5)).
respect to the first criterion, the Court recognized that IQ
test scores may be "of considerable significance."
Id. at 723. The Court emphasized, however, that,
"in using these scores to assess a defendant's
eligibility for the death penalty, a State must afford these
test scores the same studied skepticism that those who design
and use the tests do, and understand that an IQ test score
represents a range rather than a fixed number."
Id. Because "[e]ach IQ test has a 'standard
error of measurement'" of plus or minus five points,
"an individual's intellectual functioning cannot be
reduced to a single numerical score." Id. at
713. Thus, "IQ test scores should be read not as a
single fixed number but as a range." Id. at
712. "A score of 71, for instance, is generally
considered to reflect a range between 66 and 76 . . . ."
Id. at 713.
court, therefore, may not cut off the inquiry when a
defendant scores between 70 and 75 on an IQ test. Rather,
"[f]or professionals to diagnose - and for the law then
to determine - whether an intellectual disability exists once
the [standard error of measurement] applies and the
individual's IQ score is 75 or below the inquiry would
consider factors indicating whether the person had deficits
in adaptive functioning." Id. at 714. The Court
"agree[d] with the medical experts that when a
defendant's IQ test score falls within the test's
acknowledged and inherent margin of error, the defendant must
be able to present additional evidence of intellectual
disability, including testimony regarding adaptive
deficits." Id. at 723.
Court held that Florida's "strict IQ test score
cutoff of 70" ran afoul of these requirements in two
ways. First, it "disregard[ed] established medical
practice" by "tak[ing] an IQ score as final and
conclusive evidence of a defendant's intellectual
capacity, when experts in the field would consider other
evidence." Id. at 712. Second, it
"relie[d] on a purportedly scientific measurement of the
defendant's abilities, his IQ score, while refusing to
recognize that the score is, on its own terms,
reaching this conclusion, the Court rejected any suggestion
that Atkins had given states "unfettered
discretion to define" intellectual disability.
Id. at 719. The Court said that "[t]he clinical
definitions of intellectual disability, which take into
account that IQ scores represent a range, not a fixed ...