GERALD ROSS PIZZUTO, JR., Pеtitioner-Appellant, v. RANDY BLADES, Warden, Idaho Maximum Security Institution, Respondent-Appellee.
No. 16-36082
United States Court of Appeals for the Ninth Circuit
August 14, 2019
D.C. No. 1:05-cv-00516-BLW. Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. Argued and Submitted December 11, 2018 San Francisco, California. Before: Raymond C. Fisher, Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges.
OPINION
Per Curiam Opinion
SUMMARY*
Habeas Corpus /Death Penalty
The panel affirmed
Applying
Applying
Because
COUNSEL
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.
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
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. Pizzutо murdered the Her[n]dons just for the sake of killing and subsequently joked and bragged about the killings to his associates.
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
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 сlinical 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
(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 intelligеnce 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
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
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 reсognized 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
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 thаt he “had an IQ of 70 or below at the time of the murders and prior to his eighteenth
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
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 number, were a fundamental premise of Atkins.” Id. at 720. The Court added:
If the States were to have complete autonomy to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality. This Court thus reads Atkins to provide substantial guidance on the definition of intellectual disability.
Finally, in conducting a survey of state laws respecting the execution of intellectually disabled offenders, Hall briefly distinguished Idaho law from Florida’s strict IQ test score cutoff. Citing the Idaho Supreme Court’s decision in Pizzuto’s case, the Court characterized Idaho law as “allowing a defendant to present additional evidence of
intellectual disability even when an IQ test score is above 70.” Id. at 717 (citing Pizzuto I, 202 P.3d at 651).7
On remand, the district court concluded that Hall did not alter its previous decision. See Pizzuto v. Blades (Pizzuto V), No. 1:05-cv-00516-BLW, 2016 WL 6963030, at *11 (D. Idaho Nov. 28, 2016). The court reasoned that relief was not available under
the facts under
In briefing this appeal, the parties have discussed not only Atkins and Hall but also the Supreme Court’s more recent decisions in Brumfield v. Cain, 135 S. Ct. 2269 (2015), and Moore v. Texas (Moore I), 137 S. Ct. 1039 (2017). In Brumfield, the Court reiterated that “an IQ test result cannоt be assessed in a vacuum” and again held, as in Hall, that “it is unconstitutional to foreclose ‘all further exploration of intellectual disability’ simply because a capital defendant is deemed to have an IQ above 70.” 135 S. Ct. at 2277–78 (quoting Hall, 572 U.S. at 704). The Court also concluded that the state court’s rejection of the petitioner’s request for an evidentiary hearing on his Atkins claim was based on an “unreasonable determination of the facts” under
In Moore I, the Court reaffirmed Hall’s holding that “adjudications of intellectual disability should be ‘informed by the views of medical experts.’” 137 S. Ct. at 1044 (quoting Hall, 572 U.S. at 721). The Court explained:
Even if “the views of medical experts” do not “dictate” a court’s intellectual-disability determination, . . . the determination must be “informed by the medical community’s diagnostic framework.” . . . . Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide.
But neither does our precedent license disregard of current medical standards.
Id. at 1048–49 (citations omitted) (quoting Hall, 572 U.S. at 721). Thus, the Court held that “[t]he medical community’s current standards supply one constraint on States’ leeway in this area.” Id. at 1053.
Moore I also reaffirmed Hall’s holding that courts must “continue the inquiry and consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual-functioning deficits.” Id. at 1050. In Moore I, the petitioner’s average score on six IQ tests was 70.66. See id. at 1045. Thus, the Court held that, “[b]eсause the lower end of Moore’s score range falls at or below 70, the [state court] had to move on to consider Moore’s adaptive functioning.” Id. at 1049 (citing Hall, 572 U.S. at 723).
After briefing for this appeal was completed, the Supreme Court has twice more reviewed Atkins claims. In Shoop v. Hill, 139 S. Ct. 504 (2019) (per curiam), the Court “consider[ed] what was clearly established regarding the execution of the intellectually disabled in 2008.” 139 S. Ct. at 506–07. The Court observed that “Atkins gave no comprehensive definition of ‘mental retardation’ for Eighth Amendment purposes”; although Atkins cited the definitions of intellectual disability adopted by the AAMR and the American Psychiatric Association approvingly, it “left ‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction’” on executing intellectually disabled persons. Id. at 507 (alteration in original) (quoting Atkins, 536 U.S. at 317).
In the second case, Moore v. Texas (Moore II), 139 S. Ct. 666 (2019) (per curiam), the Court reaffirmed its holding in Moore I that the petitioner, with an average IQ score of 70.66, “had demonstrated sufficient intellectual-functioning deficits” under the first criterion of the clinical definition of intellectual disability “to require consideration of the second criterion – adaptive functioning.” Id. at 668 (citing Moore I, 137 S. Ct. at 1048–50).
STANDARD OF REVIEW
We review de novo the district court‘s denial of a habeas petition. See Curiel v. Miller, 830 F.3d 864, 868 (9th Cir. 2016). Review of Pizzuto‘s petition is governed by the
“[A] decision by a state court is ‘contrary to’ [the Supreme Court‘s] clearly established law if it ‘applies a rule that contradicts the governing law set forth in [the Supreme Court‘s] cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a result different from [the Supreme Court‘s] precedent.‘” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). “[A] state-court decision involves an unreasonable application of th[e Supreme] Court‘s precedent if the state court identifies the correct governing legal rule from th[e Supreme] Court‘s cases but unreasonably applies it to the facts of the particular state prisoner‘s case.” Williams, 529 U.S. at 407. To satisfy this requirement, the record “must show that the state court‘s ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). The question “is not whether a federal court believes the state court‘s determination was inсorrect but whether that determination was unreasonable – a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). Turning to
We apply our review under
DISCUSSION
Pizzuto invokes both prongs of
A. Section 2254(d)(1)
We begin by addressing Pizzuto‘s argument that the Idaho Supreme Court‘s decision was “contrary to” or involved an “unreasonable application” of clearly established Supreme Court precedent under
After the Atkins decision, the Idaho legislature adopted the following definition of intellectual disability:
(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.
In 2008, the Idaho Supreme Court applied this definition for the first time in
The court then noted that the record included only one IQ test score for Pizzuto – a Verbal IQ of 72 on the Wechsler Adult Intelligence Scale, Revised, administered by Dr. Emery in December 1985, shortly before Pizzuto‘s 29th birthday. See id. This test score, the court concluded, was insufficient to establish an IQ of 70 or below before the age of 18:
Pizzuto argues that an IQ score is only accurate within five points. He contends that his actual IQ could have been five points lower or higher than 72. There are two problems with that argument.
First, when enacting
Idaho Code § 19-2515A(1) , the legislature did not require that the IQ score be within five points of 70 or below. It required that it be 70 or below. Although Pizzuto argued that the district court should infer that Pizzuto‘s actual IQ was lower than his test score, the court could just as reasonably have inferred that it was higher. The alleged error in IQ testing is plus or minus five points. The district court was entitled to draw reasonable inferences from the undisputed facts. It would be just as reasonable to infer that Pizzuto‘s IQ on December 12, 1985, was 77 as it would be to infer that it was 67.Second, Pizzuto‘s argument also requires the district court to infer that Pizzuto‘s IQ had not decreased during the eleven-year period from his eighteenth birthday to the date of his IQ test. The district court, as the trier of fact, was not required to make that inference, especially in light of the opinions of Pizzuto‘s experts that his long history of drug abuse and his epilepsy would have negatively impacted his mental functioning.
Id. (citation omitted).
Pizzuto argues that the Idaho Supreme Court‘s decision was both “contrary to” and an “unreasonable application” of Atkins. His argument begins with the premise that Atkins “embraced the clinical definitions of intellectual disability set by the American Association on Mental Retardation . . . and the American Psychiatric Association.” Opening Brief at 26 (citing Atkins, 536 U.S. at 308 n.3, 317 n.22). Then, relying on that premise, he argues that the Idaho court disregarded these clinical definitions by (1) applying a “hard IQ-70 cutoff” and (2) requiring him to provide the court with IQ testing completed before his 18th birthday. Id. at 31–36.
Specifically, Pizzuto contends that the Idaho Supreme Court‘s application of a “hard IQ-70 cutoff” disregarded the clinical definitions by: (1) “expressly confin[ing] the consideration of the first criteri[on] to an IQ score only,” “tak[ing] the IQ score as final and conclusive evidence of a defendant‘s intellectual capacity when experts in the field would consider other evidence“; (2) “reject[ing] the scientific limitations of testing, including the standard of error measurement . . . universally recognized by the medical and psychological professions“; (3) “completely misunderst[anding]
1. “Contrary to” Prong
Initially, we reject Pizzuto‘s argument that the Idaho court‘s decision was “contrary to” Atkins. For purposes of
We also reject Pizzuto‘s suggestion that the Idaho Supreme Court‘s application of a hard IQ-70 cutoff was “contrary to” or an “unreasonable application of” Atkins’ “progeny” – a reference to Hall, Brumfield and Moore I. Opening Brief at 31. These three cases were decided in 2014, 2015 and 2017 respectively – years after the Idaho Supreme Court‘s 2008 decision in Pizzuto‘s case. “[U]nder . . .
2. “Unreasonable Application” Prong
Pizzuto‘s contention that the Idaho Supreme Court‘s decision involved an “unreasonable application” of Atkins fails as well.
Pizzuto is correct that the Idaho Supreme Court‘s application of a “hard IQ-70 cutoff” was inconsistent with the clinical definitions in place at the time of the state court‘s decision. The DSM-IV, adopted in 2000, defined the diagnostic criteria for intellectual disability as:
A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning).
B. Concurrent deficits or impairments in present adaptive functioning (i.e., the person‘s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.
C. The onset is before age 18 years.
DSM-IV at 49 (emphasis added). This standard does not require an IQ of 70 or below; it requires “an IQ of approximately 70 or below.” Id. (emphasis added). Under the DSM-IV, therefore, “it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in аdaptive behavior.” Id. at 41–42.9
The 10th edition of the AAMR manual, adopted in 2002, defined intellectual disability as follows:
Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.
AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 8 (10th ed. 2002). Under the intellectual functioning prong, “[t]he criterion for diagnosis is approximately two standard deviations below the mean, considering the standard error of measurement for the specific assessment instrument used and the instrument‘s strengths and weaknesses.” Id. at 37 (emphasis added). “In effect, this expands the operational definition of mental retardation to 75, and that score of 75 may still contain measurement error.” Id. at 59.
In contrast to these clinical standards, the Idaho Supreme Court required an offender to establish an IQ of 70 or below under all circumstances, regardless of the offender‘s deficits in adaptive functioning. Although the Idaho court recognized that “[t]he alleged error in IQ testing is plus or minus five points,” Pizzuto I, 202 P.3d at 651, it nonetheless required Pizzuto to establish an “actual IQ” of 70 or below. See Pizzuto III, 729 F.3d at 1217 n.2; Pizzuto I, 202 P.3d at 651 (“[T]he statutory definition . . . requires proof of . . . an intelligence quotient (IQ) of 70 or below . . . . Significant limitations in adaptive functioning alonе will not bring an offender within the protection of the statute.“); id. (“[W]hen enacting
This conclusion alone, however, does not establish that the Idaho Supreme Court unreasonably applied Atkins for purposes of
It is now clear that “[t]he legal determination of intellectual disability . . . is informed by the medical community‘s diagnostic framework,” Hall, 572 U.S. at 721, and that “[t]he medical community‘s current standards supply one constraint on States’ leeway in this area,” Moore I, 137 S. Ct. at 1053. It was not apparent in 2008, however, that states were required to adhere strictly to the AAMR‘s and American Psychiatric Association‘s clinical standards. We acknowledge Hall‘s statements that Atkins “provide[d] substantial guidance on the definition of intellectual disability,” that “[t]he clinical definitions of intellectual disability . . . were a fundamental premise of Atkins” and that ”Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection.” Hall, 572 U.S. at 719–21. The Supreme Court, however, has held that ”Atkins gave no comprehensive definition of ‘mental retardation’ for Eighth Amendment purposes.” Shoop, 139 S. Ct. at 507; see also Bobby v. Bies, 556 U.S. 825, 831 (2009) (explaining that Atkins “did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation ‘will be so impaired as to fall within Atkins’ compass‘” (alteration omitted) (quoting Atkins, 536 U.S. at 317)); Ybarra v. Filson, 869 F.3d 1016, 1024 (9th Cir. 2017) (“Significantly, Atkins ‘did not provide definitive procedural or substantive guides’ to determine who qualifies as intellectually disabled.” (quoting Bies, 556 U.S. at 831)); Moormann v. Schriro, 672 F.3d 644, 648 (9th Cir. 2012) (“The Supreme Court in Atkins did not define mental retardation as a matter of federal law.“).
This is not a case in which the state court utterly disregarded the clinical definitions. To be sure, the Idaho Supreme Court erred by defining the significantly subaverage intellectual functioning criterion as an IQ of 70 or below, see
In short, because it was not apparent in 2008 that states were required to adhere closely to the clinical definitions of intellectual disability, the Idaho Supreme Court‘s application of a “hard IQ-70 cutoff” was not an “unreasonable application” of Atkins. “[R]elief is available under
Relatedly, it is now clear as a matter of federal law that “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.” Hall, 572 U.S. at 722 (citation omitted) (quoting Atkins, 536 U.S. at 309 n.5); see id. at 723 (“[W]hen 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.“); Brumfield, 135 S. Ct. at 2278 (“[I]t is unconstitutional to foreclose ‘all further exploration of intellectual disability’ simply because a capital defendant is deemed to have an IQ above 70.” (quoting Hall, 572 U.S. at 704)); Moore I, 137 S. Ct. at 1049 (“Because the lower end of Moore‘s score range falls at or below 70, the [state court] had to move on to consider Moore‘s adaptive functioning.“); DSM-5 at 37 (“Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points). On tests with a standard deviation of 15 and a mean of 100, this involves a score of 65–75 (70 ± 5).“); id. (“IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks. For example, a person with an IQ score above 70 may have such severe adaptive behavior problems in social judgment, social understanding, and other areas of adaptive functioning that the person‘s actual functioning is comparable to that of individuals with a lower IQ score.“); AAIDD-11 at 35 (“[T]he intellectual functioning criterion for diagnosis of [intellectual disability] is approximately two standard deviations below the mean, considering the standard error of measurement . . . . The intent of this definition is not to specify a hard and fast cutoff point/score for meeting the significant limitations in intellectual functioning criterion . . . . In addition, significant limitations in intellectual functioning is only one of the three criteria used to establish a diagnosis of [intellectual disability].“); id. at 40 (“A fixed point cutoff score for [intellectual disability] is not psychometrically justifiable.“). The Idaho Supreme Court violated this principle by requiring an “actual” IQ of 70 or below. This point, however, was not beyond fairminded disagreement in 2008. We cannot say, therefore, that the Idaho Supreme Court‘s application of Atkins “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
We reach the same conclusion with respect to the Idaho Supreme Court‘s failure to apply the Flynn effect.10 Although mentioned in recent clinical standards, see
Finally, we reject Pizzuto‘s contention that the Idaho Supreme Court‘s decision was contrary to or an unreasonable application of Atkins because the court required him to provide the results of an IQ test administered before his 18th birthday. With respect to this contention, we simply disagree
with Pizzuto‘s reading of the Idaho Supreme Court‘s decision. If the state court had required Pizzuto to present a pre-18 IQ test score, it could have disposed of his claim simply by noting the absence of such a score in the record. Instead, it explained that “there must be evidence showing that [Pizzuto‘s] IQ was 70 or below prior to his eighteenth birthday,” Pizzuto I, 202 P.3d at 651, regardless of when he was tested.
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In sum, the record does not establish that the Idaho Supreme Court‘s decision was “contrary to” or involved an “unreasonable application” of clearly established Supreme Court precedent. See
B. Section 2254(d)(2)
Pizzuto alternatively contends that the Idaho Supreme Court‘s decision “was
Under
Here, Pizzuto challenges the state court‘s factual determinations on several grounds. We address them in turn.
1. Pizzuto‘s Argument That the State Court‘s Determinations Are Unreasonable Because They Are Inconsistent with Clinical Definitions
Pizzuto argues that the Idaho Supreme Court‘s factual determinations “are unreasonable because they are not consistent with clinical definitions and best practices in defining and diagnosing [intellectual disability] as guaranteed by the Eighth Amendment in Atkins and enforced in Hall.” Opening Brief at 37. He maintains that “[t]he state court‘s factual findings are unreasonable in light of the record before it because they are in direct conflict with professional standards established to determine intellectual disability and thus, not ‘informed by’ them as instructed by Hall.” Id. at 38.
As noted, we agree with Pizzuto that the Idaho Supreme Court failed to apply the clinical standards in use at the time of its decision. Those standards required an IQ of “approximately 70” and recognized that “it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior.” DSM-IV at 41–42. The Idaho Supreme Court, by contrast, required an “actual” IQ of “70 or below,” irrespective of “[s]ignificant limitations in adaptive functioning.” Pizzuto I, 202 P.3d at 651. Pizzuto, therefore, is correct in аrguing that the state court‘s determination that he failed to make a prima facie showing of intellectual disability is “not consistent with clinical definitions” discussed in Atkins and subsequently required by Hall.
Under
2. Pizzuto‘s Argument That the State Court‘s Unreasonably Failed to Consider His School Records as Evidence of Subaverage Intellectual Functioning
Pizzuto argues that the Idaho Supreme Court‘s determination that he failed
Pizzuto is correct that a “state-court fact-finding process is undermined where the state court has before it, yet apparently ignores, evidence that supports petitioner‘s claim.” Taylor, 366 F.3d at 1001. Here, however, Pizzuto has not shown that the Idaho Supreme Court ignored such evidence.
First, although Pizzuto cites his “abysmal school record,” the actual evidence in the record regarding his schooling is sparse and incomplete. It consists solely of affidavits from five educators, two of whom have no specific recollection of Pizzuto. Although some of these records show that Pizzuto received low grades and was held back, there are many reasons Pizzuto may have performed poorly in school, and no expert opined that this poor performance was evidence of significantly subaverage intellectual functioning or an IQ of 70 or below. Thus, even if Pizzuto‘s school records are some evidence of pre-18 significantly subaverage intellectual functioning, they do not render unreasonable the Idaho Supreme Court‘s determination that Pizzuto failed to make a prima facie showing that he had an IQ of 70 or below before the age of 18. School records can be strong evidence of intellectual disability. See, e.g., Moore I, 137 S. Ct. at 1051; Hall, 572 U.S. at 705, 712; Smith, 813 F.3d at 1186. Here, however, the records do not show that the state court‘s determination was objectively unreasonable under
Second, we cannot say that the Idaho Supreme Court ignored this evidence within the meaning of Taylor when it was Pizzuto himself who failed to bring the evidence to the court‘s attention. In state court, Pizzuto cited his school records to show limitations in adaptive functioning but not to establish subaverage intellectual functioning. To establish the latter, Pizzuto instead “relied solely upon Dr. Emery‘s IQ determination.” Pizzuto I, 202 P.3d at 652. The state court‘s focus on Pizzuto‘s IQ test score, therefore, was consistent with Pizzuto‘s own contentions.
3. Pizzuto‘s Argument That the State Court Unreasonably Determined That His IQ Could Have Declined in Adulthood Due to Drug Abuse and Epilepsy
Pizzuto argues that it was unreasonable for the Idaho Supreme Court to determine that his IQ could have declined between the time he was 18 (in 1974) and the time of Dr. Emery‘s IQ testing (in 1985).
The Idaho Supreme Court determined that the state trial court could have inferred that Pizzuto‘s IQ “decreased during the eleven-year period from his eighteenth birthday to the date of his IQ test . . . , especially in light of the opinions of Pizzuto‘s experts that his long history of drug abuse and his epilepsy would have negatively impacted his mental functioning.” Pizzuto I, 202 P.3d at 651.
Pizzuto contends that this determination was unreasonable. First, he argues that “incidents of drug use and epilepsy, if they occurred, would be documented,” becаuse he spent nine of these 11 years in prison. Opening Brief at 40. Because his prison records do not show continued seizures or drug use, Pizzuto argues that a “more reasonable inference” would be that he was substantially drug free and not experiencing
The Idaho Supreme Court‘s determination, however, was based on record evidence from Pizzuto‘s own experts. In 1988, Dr. James Merikangas noted that Pizzuto had “a life long history of almost continuous drug abuse including intravenous Heroin as well as cocaine, speed and marijuana“; that Pizzuto‘s “long history of polydrug abuse has caused him further neurological dysfunction and . . . substantial defects of mind and reason“; and that “[w]e will probably not know to any scientific degree of accuracy what his state of mind was at the time of the alleged crimes.” In 2004, Dr. Craig Beaver opined that Pizzuto would benefit from further neurological study in part because, “[o]ften, patients that have persistent seizure disorders . . . will decline over time in their overall mental abilities“:
Mr. Pizzuto has continued to require pharmacological management of his seizure disorder since he was last examined by myself in 1996. He has continued to have neurological difficulties. Therefore, given that it has now been over eight years since his last comprehensive neuropsychological examination, I would strongly recommend that he undergo repeat neuropsychometric studies. Repeat neuropsychometric studies are needed to better determine Gerald Pizzuto‘s cognitive abilities. Often, patients that have persistent seizure disorders, for example, will decline over time in their overall mental abilities.
In light of this evidence, it was not unreasonable for the Idaho Supreme Court to determine that the state trial court reasonably could have inferred that Pizzuto‘s IQ may have declined as a result of drug abuse or epilepsy. Even if, as Pizzuto contends, a “more reasonable inference” would be that he was substantially drug free and not experiencing seizures after he turned 19, this does not render the state court‘s contrary determination objectively unreasonable under
Second, Pizzuto argues that it would have been unreasonable to infer from Dr. Beaver‘s 2004 affidavit that Pizzuto‘s mental functioning may have declined between 1974 and 1985, see Pizzuto I, 202 P.3d at 652, because “[t]here is no statement in the affidavit that Mr. Pizzuto‘s IQ had declined . . . between 1996 and 2008,” let alone “any statement that Mr. Pizzuto‘s IQ had declined . . . from his 18th birthday to the time of Dr. Emery‘s testing.” Opening Brief at 42. Dr. Beaver‘s affidavit, however, clearly gave the impression that Pizzuto‘s mental functioning may have declined between 1996 and 2004. It would not have been unreasonable, therefore, to infer that it also might have declined between 1974 and 1985. Dr. Beaver did not need to expressly state that a decline in IQ occurred for the Idaho Supreme Court to determine that it was possible. The very reason Dr. Beaver requested more testing was that those with persistent seizure disorders, like Pizzuto, tend to decline in their mental abilities over time. The Idaho Supreme Court‘s determination, therefore, was not unreasonable.
4. Pizzuto‘s Argument That the State Court‘s Denial of an Evidentiary Hearing Was Based on an Unreasonable Determination of the Facts
Pizzuto argues that he “only needed to raise a reasonable doubt regarding his intellectual capacity to be entitled to an evidentiary hearing” and that the Idaho Supreme Court‘s determination that he “did not meet that low threshold was unreasonable” under
This argument is unpersuasive. First, although Pizzuto argues that the Idaho
Second, although Pizzuto contends that the Idaho Supreme Court‘s failure to apply a “reasonable doubt” standard was “contrary to, and an unreasonable application of Atkins,” as “expressly addressed in Brumfield,” we must disagree. Opening Brief at 46. Atkins did not address the legal standard applicable to a request for an evidentiary hearing. In Brumfield, the state courts adopted a reasonable doubt standard, see Brumfield, 135 S. Ct. at 2274, and the Supreme Court presumed that this standard would be consistent with Atkins, see id. at 2276 (“[W]e do not question the propriety of the legal standard the trial court applied, and presume that a rule according an evidentiary hearing only to those capital defendants who raise a ‘reasonable doubt’ as to their intellectual disability is consistent with our decision in Atkins.“). The Court, however, did not adopt a reasonable doubt standard. See id. The Idaho Supreme Court‘s failure to apply such a standard, therefore, was not “contrary to” or an “unreasonable application” of Atkins. See
5. Pizzuto‘s Argument That the State Court‘s Factfinding Process Was Unreasonable
Pizzuto argues more broadly that the denial of a hearing, as well as the denial of access to an expert, rendered the Idaho Supreme Court‘s factfinding process itself unreasonable under
As we explained in Hibbler, 693 F.3d at 1146, “[c]hallenges under
The Idaho Supreme Court did not specifically address whether the state trial court erred by granting summary judgment to the state on Pizzuto‘s Atkins claim without holding an evidentiary hearing. The court, however, addressed a related question – whether the state trial court erred by dismissing Pizzuto‘s petition without permitting further testing. See Pizzuto I, 202 P.3d at 655–56. The court concluded that the trial court did not err. First, the court noted that Pizzuto had not pursued the motion for testing. Pizzuto had moved for additional testing in October 2004 but he “did not notice this motion for a hearing.” Id. at 655. Instead, “[w]ithout pursuing the motion for testing, Pizzuto moved for summary judgment on September 23, 2005.” Id. He did so, moreover, even though, under Idaho law, “[i]f a trial court denies a party‘s motion for summary judgment, it has discretion to grant summary judgment to the opposing party.” Id. at 656 (citing Hardwood v. Talbert, 39 P.3d 612, 617 (Idaho 2001)). Even in
Second, as framed by the Idaho Supreme Court, the central issue in the case was whether Pizzuto could establish a pre-18 IQ of 70 or below. Pizzuto did not argue that, were he afforded the opportunity to conduсt further testing, he would develop additional evidence on that question. The court reasoned:
The definition of “mentally retarded” in
Idaho Code § 19-2515A requires that the defendant have an IQ of 70 or below both at the time of the murder(s) and prior to age eighteen. In its briefing opposing Pizzuto‘s motion for summary judgment, the State argued that Pizzuto had failed to provide evidence that his IQ was 70 or below and failed to provide evidence showing it was 70 or below prior to his eighteenth birthday. Pizzuto‘s alleged IQ is obviously a matter requiring expert testimony. He did not offer any expert testimony opining that his IQ was ever 70 or below, nor does he allege that the requested additional testing was intended to address that issue.
Id. (emphasis added).
In short, Pizzuto did not pursue his motion for additional testing, and he did not contend that further factual development of the record would shed additional light on the dispositive issue – his ability to establish a pre-18 IQ of 70 or below. Under these circumstances, we cannot say that the denial of an evidentiary hearing rendered the state court‘s factfinding process unreasonable under
6. Pizzuto‘s Remaining § 2254(d)(2) Arguments
The
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In sum, the record does not establish that the Idaho Supreme Court‘s decision was based on an unreasonable determination of the facts under
CONCLUSION
Because
Our decision, however, does not preclude the Idaho courts from reconsidering those questions in light of intervening events. Although the Idaho courts rejected Pizzuto‘s
The judgment of the district court is affirmed. Each party shall bear its own costs on appeal.
AFFIRMED.
Notes
DSM-5 at 37.Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points). On tests with a standard deviation of 15 and a mean of 100, this involves a score of 65–75 (70 ± 5). . . . IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks. For example, a person with an IQ score above 70 may have such severe adaptive behavior problems in social judgment, social understanding, and other areas of adaptive functioning that the person’s actual functioning is comparable to that of individuals with a lower IQ score. Thus, clinical judgment is needed in interpreting the results of IQ tests.
DSM-IV at 41–42.Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g., а Wechsler IQ of 70 is considered to represent a range of 65–75). Thus, it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior. Conversely, Mental Retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning.