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Pizzuto v. Blades

United States Court of Appeals, Ninth Circuit

August 14, 2019

Gerald Ross Pizzuto, Jr., Petitioner-Appellant,
v.
Randy Blades, Warden, Idaho Maximum Security Institution, Respondent-Appellee.

          Argued and Submitted December 11, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Idaho, No. 1:05-cv-00516-BLW B. Lynn Winmill, Chief District Judge, Presiding

          Joan M. Fisher (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Public Defender, Sacramento, California; for Petitioner-Appellant.

          L. LaMont Anderson (argued), Chief, Capital Litigation Unit; Lawrence G. Wasden, Attorney General; Criminal Law Division, Office of the Attorney General, Boise, Idaho; for Respondent-Appellee.

          Before: Raymond C. Fisher, Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus /Death Penalty

         The 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 offenders.

         Applying 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.

         Applying 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 standard.

         Because 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.

          OPINION

          PER CURIAM

         Gerald 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.[1] 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 Amendment.

         BACKGROUND

         In 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.

Id.

         Sixteen 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.

         The 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).

         Atkins, 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).

         Shortly 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) years.
(b) "Significantly subaverage general intellectual functioning" means an intelligence quotient of seventy (70) or below.

Id. at 398 (codified at Idaho Code § 19-2515A(1)).

         In 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.[2] In January 2005, the state trial court denied the motion for disqualification. See id. at 646.

         In 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.[3]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."

         Pizzuto 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.

         In 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."

         The 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.

         In 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.

         In a 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.

         The 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. Id.[4]

         The 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.

         We 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).

         While 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 unconstitutional." Id.

         At the 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.

         Next, 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)).

         With 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.[5]

         A 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.[6]

         The 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, imprecise." Id.

         In 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 ...


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