Gerald Pizzuto, Jr. v. Randy Blade

Filing

FILED OPINION (RAYMOND C. FISHER, RONALD M. GOULD and JOHNNIE B. RAWLINSON) AFFIRMED. Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. [8773298]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, JR.,
Petitioner-Appellant,

No. 12-99002

v.

D.C. No.
1:05-cv-00516BLW

RANDY BLADES, Warden, Idaho
Maximum Security Institution,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
June 27, 2013—Seattle, Washington
Filed September 9, 2013
Before: Raymond C. Fisher, Ronald M. Gould,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould

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SUMMARY*

Habeas Corpus/Death Penalty
The panel affirmed the denial of a 28 U.S.C. § 2254
habeas corpus petition challenging a conviction and capital
sentence based on Atkins v. Virginia, 536 U.S. 304 (2002),
which prohibits the execution of mentally retarded persons.
Idaho state law responded to Atkins by enacting state law
prohibiting the execution of mentally retarded persons and
defining “mentally retarded.” The Idaho Supreme Court
applied that law for the first time in petitioner’s case.
Observing that the United States Supreme Court in Atkins left
the definition of “mentally retarded” broadly open for
consistent state-court decisions, the panel held that the Idaho
Supreme Court’s decision was neither contrary to nor an
unreasonable application of clearly established federal law.

COUNSEL
Daniel J. Broderick, Federal Defender; Joseph Schlesinger
and Joan M. Fisher (argued), Assistant Federal Defenders,
Federal Defender of Eastern District of California,
Sacramento, California, for Petitioner-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Lawrence G. Wasden, Attorney General of Idaho, and L.
LaMont Anderson (argued), Deputy Attorney General,
Capital Litigation Unit Chief, Boise, Idaho, for
Respondent-Appellee.

OPINION
GOULD, Circuit Judge:
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 mentally retarded
persons.1 In response to Atkins, Idaho enacted a law
prohibiting execution of mentally retarded criminals. Pizzuto
challenges the Idaho Supreme Court’s decision that his
execution is not barred under that state law. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm
the district court’s denial of Pizzuto’s petition.

1

The preferred clinical term is now “intellectual disability.” See, e.g.,
Robert L. Schalock et al., The Renaming of Mental Retardation:
Understanding the Change to the Term Intellectual Disability, 45 Intell.
& Dev. Disabilities 116, 116–17 (2007); see also Rosa’s Law, Pub. L. No.
111-256, 124 Stat. 2643 (2010). We use “mentally retarded” because the
parties use that term and because that term was used in Atkins and much
of its progeny. See, e.g., Atkins, 536 U.S. at 306.

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I

Pizzuto was convicted of two counts of first-degree
murder, two counts of felony murder, one count of robbery,
and one count of grand theft. The Idaho Supreme Court
succinctly summarized what it considered key facts of the
crime as follows:
Pizzuto approached [Berta Louise Herndon
and her nephew, Delbert Dean Herndon] 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.
Pizzuto v. State, 202 P.3d 642, 645 (Idaho 2008); see also
Pizzuto v. Blades, 673 F.3d 1003, 1004 (9th Cir. 2012).
Pizzuto was sentenced to death for the murders.
Pizzuto’s conviction and sentence were upheld on direct
appeal, except for his robbery conviction, which the Idaho
Supreme Court held was a lesser-included offense of felony
murder and so merged with that conviction. See State v.
Pizzuto, 810 P.2d 680, 695 (Idaho 1991). Pizzuto’s other
convictions and his death sentence were upheld again on state
and federal post-conviction review. See Pizzuto, 673 F.3d at

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1007; see also Pizzuto v. State, 233 P.3d 86, 88–89 (Idaho
2010) (reciting the case history).
In his fifth state petition for post-conviction review,
relevant here, Pizzuto contended that his death sentence was
prohibited by Atkins. See Pizzuto, 202 P.3d at 644. Pizzuto
moved for summary judgment on that issue. But the state
trial court granted summary judgment in favor of the State
because (1) Pizzuto did not raise a genuine issue of material
fact to support his claim of mental retardation and (2) the
petition was untimely. Id. at 645–46.
The Idaho Supreme Court affirmed the grant of summary
judgment to the State. To survive summary dismissal,
Pizzuto had to present evidence establishing a prima facie
case on each element of the claims on which he bore the
burden of proof. Pizzuto, 202 P.3d at 650. The Idaho
Supreme Court held that “Pizzuto had the burden of showing
that at the time of his murders he was mentally retarded as
defined in Idaho Code § 19–2515A(1)(a) and that his mental
retardation occurred prior to his eighteenth birthday.” Id. at
655. But Pizzuto did not “create a genuine issue of material
fact on each element of his claim” because he did not show
that he “had an IQ of 70 or below at the time of the murders
and prior to his eighteenth birthday.” Id. Pizzuto had
introduced a verbal IQ test score of 72 and asserted that it
should be interpreted as below 70 because the standard error
of measurement for the IQ test was plus or minus five points.
Id. at 651. But the court rejected this argument, concluding
that “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.”
Id. The court also noted that Pizzuto’s IQ could have
decreased in the years between his eighteenth birthday and
when he took the IQ test where he scored 72 because of his

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lifelong drug use and his health problems. Id. at 651–55.
The Idaho Supreme Court stressed that Pizzuto did not offer
any expert opinion stating that he was mentally retarded at the
time of the murders or before the age of 18. Id. at 655. The
Idaho Supreme Court also affirmed the trial court’s implicit
denial of an evidentiary hearing. Id.
We gave Pizzuto permission to file a successive federal
habeas corpus petition on his Atkins claim. After careful
proceedings, the federal district court denied Pizzuto’s habeas
corpus petition but granted a certificate of appealability on
the Atkins issues. See 28 U.S.C. § 2253(c). This timely
appeal followed.
II
We review de novo the district court’s denial of a habeas
petition. Gulbrandson v. Ryan, 711 F.3d 1026, 1036 (9th Cir.
2013). Review of Pizzuto’s petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) because Pizzuto filed his petition after April 24,
1996. See Lindh v. Murphy, 521 U.S. 320, 322, 336 (1997).
Under AEDPA, habeas relief can be granted only if the statecourt proceeding adjudicating the claim on the merits
“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,”
28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” § 2254(d)(2). Under both
subsections, our review is significantly deferential to our
state-court colleagues’ adjudication of the claim. See Schriro
v. Landrigan, 550 U.S. 465, 473 (2007). “The question under
AEDPA is not whether a federal court believes the state

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court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher
threshold.” Id. (citing Williams v. Taylor, 529 U.S. 362, 410
(2000)); see also Williams, 529 U.S. at 409 (“Stated simply,
a federal habeas court making the ‘unreasonable application’
inquiry should ask whether the state court’s application of
clearly established federal law was objectively
unreasonable.”).
We apply this deferential review to the last reasoned
state-court decision. See Ylst v. Nunnemaker, 501 U.S. 797,
803–04 (1991); see also Hibbler v. Benedetti, 693 F.3d 1140,
1146 (9th Cir. 2012), cert. denied, 133 S. Ct. 1262 (2013).
Here, we review the Idaho Supreme Court’s decision. See
Pizzuto, 202 P.3d 642. Because that court denied Pizzuto’s
Atkins claim on the merits, Pizzuto can rely only on the
record before the state court in order to satisfy the
requirements of § 2254(d). Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011); see also Gulbrandson, 711 F.3d at 1042.
If the state court’s adjudication of a claim survives review
under § 2254(d), that ends our analysis; the petitioner is not
entitled to an evidentiary hearing on that same claim in
federal court. See Pinholster, 131 S. Ct. at 1398–1401; cf.
Earp v. Ornoski, 431 F.3d 1158, 1166–67 (9th Cir. 2005)
(“Because a federal court may not independently review the
merits of a state court decision without first applying the
AEDPA standards, a federal court may not grant an
evidentiary hearing without first determining whether the
state court’s decision was an unreasonable determination of
the facts.”).

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III

Pizzuto contends that the Idaho Supreme Court’s decision
was an unreasonable application of the law set forth in Atkins
and an unreasonable determination of the facts. We consider
each argument in turn.
A
Pizzuto contends that the Idaho Supreme Court
unreasonably applied Atkins and that he should be given relief
under 28 U.S.C. § 2254(d)(1). Under § 2254(d)(1), “[t]he
pivotal question is whether the state court’s application” of
the Supreme Court precedent “was unreasonable,”
Harrington v. Richter, 131 S. Ct. 770, 785 (2011), as opposed
to merely “incorrect or erroneous,” Lockyer v. Andrade,
538 U.S. 63, 75 (2003); see also Williams, 529 U.S. at
409–10 (requiring that the state-court decision be an
“objectively unreasonable” application of clearly established
federal law to grant relief under § 2254(d)). In applying this
standard, we “must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme Court].” Harrington, 131 S. Ct. at 786.
In reviewing the Idaho Supreme Court’s decision, we
must first ascertain what is the clearly established law of
Atkins and then determine whether the Idaho Supreme Court
unreasonably applied that law in Pizzuto’s case. Pizzuto
faces a high barrier on this issue because the Supreme Court,
while outlawing the death penalty for mentally retarded
persons, left definition of that term broadly open for
consistent state-court decisions. And so the Supreme Court
gave some leeway to state legislators to craft their own

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standard for what constitutes mental retardation. As we have
previously explained: “The Supreme Court in Atkins did not
define mental retardation as a matter of federal law. With
respect to mental retardation . . . the Supreme Court left to the
states ‘the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of
sentences.’” Moormann v. Schriro, 672 F.3d 644, 648 (9th
Cir. 2012) (alteration in original) (quoting Atkins, 536 U.S. at
317); see also Hill v. Humphrey, 662 F.3d 1335, 1339 (11th
Cir. 2011) (en banc) (“In Atkins, the Supreme Court was
careful not to fix the burden of proof or to impose rigid
definitions of mental retardation. Instead, the Court left it to
the states to develop ‘appropriate’ procedures for mental
retardation determinations . . . .”). More recently, the
Supreme Court reaffirmed 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].” Bobby v. Bies,
556 U.S. 825, 831 (2009) (alteration in original) (internal
quotation marks omitted); see also Schriro v. Smith, 546 U.S.
6, 6–8 (2005) (per curiam).
The “clearly established law” of Atkins is its holding “that
a person who is mentally retarded may not be sentenced to
death.” Moormann, 672 F.3d at 648. But clearly established
Supreme Court law does not totally hem in the ability of
individual states to define and determine who is mentally
retarded.
Idaho responded to Atkins by enacting Idaho Code § 192515A, which prohibits the execution of mentally retarded
persons. Idaho defines mentally retarded as:

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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.

Idaho Code Ann. § 19-2515A(1)(a).
“‘Significantly
subaverage general intellectual functioning’ means an
intelligence quotient of seventy (70) or below.” § 192515A(1)(b).
In Pizzuto’s case, the Idaho Supreme Court applied § 192515A for the first time. The Idaho Supreme Court’s use of
this definition was not an unreasonable application of Atkins
because Idaho’s definition of mental retardation “generally
conform[s] to the clinical definitions” cited in Atkins.2

2

We do not read the Idaho Supreme Court’s decision as holding that a
defendant must present an IQ test score, as opposed to an actual IQ, of 70
or below. If that had been the case, that court could have disposed of
Pizzuto’s Atkins claim simply by noting the existence of Pizzuto’s test
score. Instead, the Idaho Supreme Court appeared to contemplate that
Pizzuto’s actual IQ might be 70 or below, despite a test score of 72. As
we see it, the Idaho Supreme Court entertained the possibility that Pizzuto
could satisfy Idaho’s statutory definition of mental retardation through
persuasive expert testimony that Pizzuto’s true IQ before he was 18 was

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536 U.S. at 317 n.22. For example, in Atkins, the Supreme
Court cited the American Psychiatric Association’s (APA)
definition of mental retardation, which requires “significantly
subaverage general intellectual functioning . . . that is
accompanied by significant limitations in adaptive
functioning” and “[t]he onset must occur before age 18
years.” Id. at 308 n.3 (quoting APA, Diagnostic and
Statistical Manual of Mental Disorders 41 (4th ed. text rev.
2000) [hereinafter, DSM-IV-TR]). The APA says that the IQ
cutoff for mental retardation is “approximately 70.” Id.
The Atkins Court also pointed to several state statutes
offering protection to mentally retarded persons, illustrating
the national consensus against executing mentally retarded
criminals. 536 U.S. at 313–15 & nn.9–15 (citing inter alia
Ky. Rev. Stat. Ann. § 532.130(2) (1990); Md. Code Ann.,
Art. 27, § 412(e)(3) (1989); N.C. Gen. Stat. § 15A-2005
(2002); Tenn. Code Ann. § 39-13-203(c) (1990)). These state
statutes use an IQ of 70 as the cutoff for mental retardation.
Because Idaho’s statute is similar, Idaho’s definition of
mental retardation has “support” in Atkins’ “discussions
of . . . the state standards” that the Supreme Court looked to
when describing the class protected by the Eighth
Amendment. Panetti v. Quarterman, 551 U.S. 930, 959
(2007) (rejecting the Fifth Circuit’s incompetency standard in
part because it lacked support in the “discussions of the
common law and the state standards” on which the Supreme
Court’s incompetency law is based).

70 or below. Also, an IQ test score above 70 taken before the age of 18
would not necessarily preclude a subsequent, but still pre-18, onset of
mental retardation as required under Idaho law.

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Despite the similarities between Idaho’s statute and those
relied on by the Supreme Court in Atkins, Pizzuto contends
that the Idaho Supreme Court’s interpretation of § 192515A(1) was an unreasonable application of Atkins because
the Idaho Supreme Court did not consider two statistical
adjustments to his IQ score—the Flynn Effect and the
standard error of measurement (SEM). Although Pizzuto
raises this claim in his discussion of an unreasonable
application of Atkins under § 2254(d)(1), we believe it is
more appropriately discussed as it relates to the factual
analysis under § 2254(d)(2). See Part III.B.2, infra; Green v.
Johnson, 515 F.3d 290, 300 n.2 (4th Cir. 2008) (applying the
same statistical adjustments to the § 2254(d)(2) analysis); but
Hooks v. Workman, 689 F.3d 1148, 1170 (10th Cir. 2012)
(applying these adjustments to the legal standard under
§ 2254(d)(1)). Regardless, Atkins does not mandate any
particular form of calculating IQs, including the use of either
SEM or the Flynn Effect. See, e.g., Bies, 556 U.S. at 831;
Atkins, 536 U.S. at 317; Workman, 689 F.3d at 1170 (“[I]t
cannot be said that the [state court’s] failure to consider and
apply the Flynn Effect is contrary to, or an unreasonable
application of, clearly established federal law.”).
Pizzuto next argues that even if these theories are not
mandated by Atkins, Idaho’s failure to consider them,
combined with Idaho’s rigid 70-point cutoff for mental
retardation, results in a definition that does not sufficiently
protect Atkins’ class. We disagree. Idaho’s law is not outside
of the “national consensus [that] has developed against” the
execution of “offenders possessing a known IQ less than 70.”
Atkins, 536 U.S. at 316. Rather, as shown above, Idaho’s law
rests comfortably within that consensus. And as stated in
Atkins: “To the extent there is serious disagreement about the
execution of mentally retarded offenders, it is in determining

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which offenders are in fact retarded. . . . 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.” 536 U.S. at 317. Idaho is
sufficiently within the national consensus in enforcing the
substantive protection of Atkins. The Idaho Supreme Court’s
application of Atkins was not objectively unreasonable.
B
Pizzuto next contends that the Idaho Supreme Court’s
determination of the facts was unreasonable. See 28 U.S.C.
§ 2254(d)(2). He asserts that the state court’s fact-finding
process was deficient and that the state court’s factual
findings were not supported by substantial evidence in the
state-court record. Pizzuto’s burden under § 2254(d)(2) is
heavy. “This is a daunting standard—one that will be
satisfied in relatively few cases.” Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004).
1
Pizzuto urges that the state court’s determination of facts
was unreasonable because the state court did not hold an
evidentiary hearing before denying his state petition for postconviction review. “In some limited circumstances, we have
held that the state court’s failure to hold an evidentiary
hearing may render its fact-finding process unreasonable
under § 2254(d)(2).” Hibbler, 693 F.3d at 1147; see also
Taylor, 366 F.3d at 999–1001. For example, in Earp, we held
that a state court’s determination of facts was unreasonable
when it failed to hold an evidentiary hearing because “such a
hearing was necessary to make the credibility determination
upon which rejection of [the petitioner’s] claim depends.”

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Earp, 431 F.3d at 1169. “But we have never held that a state
court must conduct an evidentiary hearing to resolve every
disputed factual question; such a per se rule would be counter
not only to the deference owed to state courts under AEDPA,
but to Supreme Court precedent.” Hibbler, 693 F.3d at 1147
(discussing Landrigan, 550 U.S. at 471, 476, where “the
Supreme Court held that a state court’s rejection of the
petitioner’s allegations was reasonable for purposes of
§ 2254(d)(2), even though the state court had not held an
evidentiary hearing”); cf. Lambert v. Blodgett, 393 F.3d 943,
970 (9th Cir. 2004) (“Although an evidentiary hearing might
be evidence of an adjudication on the merits, it is a sufficient,
rather than a necessary, condition to AEDPA deference.”).
The state court does not act unreasonably “so long as the state
court could have reasonably concluded that the evidence
already adduced was sufficient to resolve the factual
question.” Hibbler, 693 F.3d at 1147. “The ultimate issue is
whether the state’s fact-finding procedures were reasonable;
this is a fact-bound and case-specific inquiry.” Id.
Pizzuto was denied an evidentiary hearing at least in part
based on his own litigation choices. After filing his fifth
petition for post-conviction review in the state trial court,
Pizzuto moved for additional neurological testing and an
evidentiary hearing. But at the same time, Pizzuto was
appealing the state trial judge’s failure to recuse himself, so
Pizzuto’s counsel said that she could not ask the trial court
judge to rule on the motion for an evidentiary hearing. The
State moved for summary dismissal of Pizzuto’s petition,
arguing that Pizzuto’s petition was untimely and that, even if
the petition was timely, Pizzuto was not entitled to relief
because he had not created a genuine issue of material fact as
to whether he was mentally retarded under Idaho law. After
losing the interlocutory appeal to disqualify the state trial

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judge, Pizzuto filed a motion for summary judgment, arguing
that based on the evidence already in the record, there was no
genuine issue of material fact and that his execution was
barred because, as a matter of law, he was mentally retarded.
In the alternative, Pizzuto again asked for an evidentiary
hearing.
The state trial court granted summary judgment for the
State without addressing Pizzuto’s motion for an evidentiary
hearing, and the Idaho Supreme Court affirmed. The
question we must answer is whether this implicit denial of an
evidentiary hearing made the fact-finding process deficient
under AEDPA—that is, whether the determination of facts
was unreasonable based on the specific facts of this case.
Under the unique facts of this case, we hold that it was not.
Under Idaho law, where one party moves for summary
judgment, the trial court has discretion to grant summary
judgment in favor of the opposing party on that same issue.
See Pizzuto v. State, 202 P.3d at 650 (quoting Harwood v.
Talbert, 39 P.3d 612, 617 (Idaho 2001)). Here, Pizzuto
moved for summary judgment contending that he is mentally
retarded under § 19-2515A. In so doing, he argued that the
undisputed evidence showed he is mentally retarded as a
matter of law. And the State directly addressed the same
argument in its briefs before the state trial court as well.
In substance, the two motions—both asking the trial
court to summarily decide if there was a genuine issue of fact
on whether Pizzuto is mentally retarded—effectively
stipulated that the facts in the record were sufficient to decide
the case. Under Idaho law, where both parties move for
summary judgment “based upon the same evidentiary facts
and the same issues and theories, they have effectively

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stipulated that there is no genuine issue of material fact and
summary judgment is therefor[e] appropriate.” Kromrei v.
AID Ins. Co., 716 P.2d 1321, 1323 (Idaho 1986); cf.
Surgicenters of Am., Inc. v. Med. Dental Surgeries, Co.,
601 F.2d 1011, 1014 (9th Cir. 1979) (“In other words, this
was a trial on a stipulated record and was so intended by the
parties. There are no genuine issues of material facts. It is a
proper case for disposition through summary judgment.”).
Pizzuto’s summary judgment motion contradicted his
request for an evidentiary hearing because his summary
judgment motion meant that in his view the facts in the record
were sufficient to decide the case. Pizzuto by filing his
summary judgment motion accepted the risk that the trial
court could rule in favor of the state, instead of merely
denying his motion. Under Idaho law, “[i]f a trial court
denies a party’s motion for summary judgment, it has the
discretion to grant summary judgment to the opposing party.”
Pizzuto, 202 P.3d at 656. In these circumstances—most
notably that under Idaho law the trial court had discretion to
treat Pizzuto’s summary judgment motion as a concession
that the record was compete—it was not unreasonable for the
state court to decide the motion for summary judgment
without an evidentiary hearing. “[T]he state court could have
reasonably concluded that the evidence already adduced was
sufficient to resolve the factual question” because Pizzuto
stated that there was no genuine issue of material fact.
Hibbler, 693 F.3d at 1147.3

3
We note that, while Idaho law may grant the trial court the power to
treat such a motion for summary judgment as a stipulation that the record
is complete, the trial court had the discretion to reject that stipulation and
to hold an evidentiary hearing. Stated another way, the state court could
have held an evidentiary hearing notwithstanding Pizzuto’s decision to file

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Pizzuto also challenges the fact-finding process for two
other reasons, neither of which is persuasive. First, he insists
that the Due Process Clause and Panetti v. Quarterman
require states to impose certain procedures before
adjudicating an Atkins claim. In Panetti, the Supreme Court
held that “Ford [v. Wainwright, 477 U.S. 399 (1986),]
entitled [a petitioner] to certain procedures not provided in
the state court [and] failure to provide these procedures
constituted an unreasonable application of clearly established
Supreme Court law.” 551 U.S. at 948. But the Supreme
Court has never held that the procedural requirements
announced in Ford and Panetti—prohibiting executions of
incompetent criminals—apply in the context of Atkins.
Rather, the Supreme Court has repeatedly said that the states
are to determine both the substantive and procedural regimes
for enforcing Atkins.4 See, e.g., Bies, 556 U.S. at 831; see
also Hill, 662 F.3d at 1359 (holding that, unlike Atkins, Ford

a motion for summary judgment. But on the facts of this case, we
conclude that it was not required to do so. If this had been a federal court
habeas proceeding under 28 U.S.C. § 2255, and with a similar federal
statute defining mental retardation, we might have concluded that
Pizzuto’s borderline IQ test score, affidavits supporting his case, and his
requests for further testing together were sufficient to show that Pizzuto
had a sufficiently close case to warrant further evidentiary proceedings.
We need not address whether the state court’s decision to deny Pizzuto an
evidentiary hearing, in the face of the cross motions for summary
judgment that had been filed, would have been an unreasonable
determination of the facts if Pizzuto had not effectively stipulated that the
record was complete.
4
The Supreme Court has stated that even though it did not dictate
procedures for adjudicating mental retardation, those procedures “might,
in their application, be subject to constitutional challenge.” Smith, 546
U.S. at 7. But as we explain here, Idaho’s procedures in this case were not
unreasonable.

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“announced both a substantive Eighth Amendment right and
a specific procedural due process requirement under the Due
Process Clause for incompetency claims”). Neither the
Supreme Court nor our court has held that Ford’s procedural
protections apply to adjudication of an Atkins claim. But
even if they did, Ford permits states to “require a substantial
threshold showing . . . to trigger the hearing process.” Ford,
477 U.S. at 426 (Powell, J., concurring); see also id. at 417
(plurality opinion) (“It may be that some high threshold
showing on behalf of the prisoner will be found a necessary
means to control the number of nonmeritorious or repetitive
claims of insanity.”); see also Panetti, 551 U.S. at 948. It is
not unreasonable for Idaho to require Pizzuto to make a prima
facie showing of mental retardation before providing him
with an evidentiary hearing. See Blue v. Thaler, 665 F.3d
647, 657 (5th Cir. 2011) (“The states retain discretion to set
gateways to full consideration [of Atkins claims] and to define
the manner in which habeas petitioners may develop their
claims.”). Here, Pizzuto complains that he had to make a
prima facie showing of mental retardation to receive an
evidentiary hearing. Such a threshold requirement is not
unreasonable.
Second, Pizzuto contends that his equal-protection and
due-process rights were violated because Idaho treats his
post-conviction Atkins claim differently than an Atkins claim
raised before trial. If Pizzuto had raised his Atkins claim
before trial, he would have automatically been given an
evidentiary hearing under Idaho Code § 19-2515A. But
because Pizzuto raised his claim on post-conviction review,
his claim is governed by Idaho Code § 19-2719. Under that
provision, the state trial court can grant summary judgment
for the state, even before an evidentiary hearing, if the
petitioner does not make a prima facie showing that he is

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entitled to relief. This different treatment, Pizzuto contends,
violates his Fourteenth Amendment rights.
Pizzuto’s challenge fails for at least the following three
reasons. First, we have rejected due-process and equalprotection challenges to Idaho Code § 19-2719. See Rhoades
v. Henry, 611 F.3d 1133, 1144 (9th Cir. 2010); Hoffman v.
Arave, 236 F.3d 523 (9th Cir. 2001). Second, if we were to
assume that Pizzuto’s equal-protection claim was not
foreclosed by these cases, nonetheless Pizzuto overlooks that
he is not similarly situated to pre-trial defendants—a
necessary part of his equal-protection claim—because the
state has already obtained his conviction and sentence. Cf.
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985) (noting that the Equal Protection Clause of the
Fourteenth Amendment is “essentially a direction that all
persons similarly situated should be treated alike”). Third,
even if he were similarly situated to pre-trial defendants on
the theory that he could not have raised Atkins before trial, the
classification is not suspect because it is based on conviction
status, so the State must only show that its differential
treatment is rationally related to a legitimate state interest.
See id. at 440. Pizzuto is attempting to collaterally attack his
sentence, and “the State has a quite legitimate interest in
preventing . . . abuses of the writ” by a petitioner who “might
attempt to use repeated petitions and appeals as a mere
delaying tactic.” Barefoot v. Estelle, 463 U.S. 880, 895
(1983), superseded by AEDPA; cf. Brecht v. Abrahamson,
507 U.S. 619, 635 (1993) (“The reason most frequently
advanced in our cases for distinguishing between direct and
collateral review is the State’s interest in the finality of
convictions that have survived direct review within the state
court system.”). The different processes for raising Atkins
claims are rationally related to Idaho’s legitimate interests in

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finality and in preventing abuses of the writ. See Walker v.
True, 399 F.3d 315 (4th Cir. 2005) (holding that Virginia’s
use of a separate Atkins process for criminals whose
convictions are final did not violate a petitioner’s equalprotection rights). Idaho’s capital post-conviction-review
process does not violate Pizzuto’s due-process or equalprotection rights. See Rhoades, 611 F.3d at 1144.
2
Pizzuto next contends that even if he was not entitled to
an evidentiary hearing, the state court made an unreasonable
determination of facts in light of the evidence under
§ 2254(d)(2). Under § 2254(d), we “‘must be particularly
deferential to our state-court colleagues’ on questions of
fact.” Cunningham v. Wong, 704 F.3d 1143, 1164 (9th Cir.
2013) (quoting Taylor, 366 F.3d at 999–1000). We will “not
second-guess a state court’s fact-finding process unless, after
review of the state-court record, [we] determine[] that the
state court was not merely wrong, but actually unreasonable.”
Id. (quoting Taylor, 366 F.3d at 999).
The Idaho Supreme Court found that Pizzuto did not state
a prima facie case of mental retardation because he did not
show evidence of an IQ of 70 or below before age 18.
Pizutto, 202 P.3d at 651. These findings were not
unreasonable based on the evidence before the state court. As
the district court below noted, “Pizzuto’s evidence was
exceptionally thin” on the element of whether his IQ was 70
or below before age 18. The record before the Idaho
Supreme Court contained only one IQ test score: a verbal IQ
test score of 72 on the Wechsler Adult Intelligence Scale
Revised, administered in 1985, when Pizzuto was almost 29.
Pizzuto, 202 P.3d at 651. In the same affidavit reporting that

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score, Dr. Emery noted that Pizzuto’s IQ score “falls in the
borderline range of intellectual deficiency,” but that other
tests “suggest somewhat higher intellectual potential.” Dr.
Emery diagnosed Pizzuto as having “borderline intellectual
deficiency,” a clinical term for subaverage intellectual
functioning distinct from mental retardation. Compare DSMIV-TR 39–49 (mental retardation), with DSM-IV-TR 740
(borderline intellectual deficiency); see also APA, Diagnostic
and Statistical Manual of Mental Disorders 36–41, 332 (3d
ed. 1980). Later, Dr. Emery confirmed his previous diagnosis
and concluded, “I guess [Pizzuto’s] native intelligence is
probably a little higher than that [IQ test score].” Pizzuto
presented additional evidence to the state court, such as
records of poor performance in school, but no expert opined
that this poor performance was proof of an IQ of 70 or below.
In addition, the state-court record contained evidence of
Pizzuto’s long history of seizures and drug abuse that likely
had a negative impact on his intellectual abilities. For
example, Dr. Merikangas, who reviewed Pizzuto’s medical
and psychological records opined that Pizzuto’s “long history
of poly drug abuse has caused him further neurological
dysfunction and has caused him to have substantial defects of
mind and reason.” And the record showed that in 1996, after
a comprehensive neuropsychometric examination, Dr. Beaver
concluded that “[t]he combination of Jerry Pizzuto having a
seizure disorder, neurocognitive limitations that affect his
impulse control and decision-making, combined with the
neurotoxic affects [sic] of polysubstance abuse would have
significantly impacted his abilities to make appropriate
decisions and to control his behavior in an appropriate and
community acceptable manner.” And in 2004, in a request
for more testing, Dr. Beaver again stressed that “patients that
have persistent seizure disorders, for example, will decline

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over time in their overall mental abilities.” Based on this
evidence, the Idaho Supreme Court concluded that it was
reasonable to infer that Pizzuto’s IQ may have declined
between age 18—the last time relevant for a diagnosis of
mental retardation—and age 29, when his IQ was measured
at 72. See Pizzuto, 202 P.3d at 652.
Finally, the Idaho Supreme Court analyzed an expert
affidavit that Pizzuto had presented to the state trial court in
support of his motion for additional psychological testing.
The court examined this evidence even though neither party
had argued that the affidavit was proof of mental retardation.
The Idaho Supreme Court’s close examination of the entire
record—even reviewing documents not discussed by the
parties—tends to support that the court did not overlook or
ignore evidence. See Taylor, 366 F.3d at 1001.
This is true even though the Idaho Supreme Court did not
apply the Flynn Effect to Pizzuto’s IQ test scores, and only
implicitly considered the standard error of measurement
(SEM). The Flynn Effect is a theory that IQ scores increase
over time, so that a person who takes an IQ test that has not
recently been “normed” may have an artificially inflated IQ
score. See James R. Flynn, Tethering the Elephant: Capital
Cases, IQ, and the Flynn Effect, 12 Psychol. Pub. Pol’y & L.
170, 173 (2006). “The standard practice is to deduct 0.3 IQ
points per year (3 points per decade) to cover the period
between the year the test was normed and the year in which
the subject took the test.” Id. Pizzuto asserts that application
of the Flynn Effect to his 1985 verbal score of 72 would
result in an IQ below the Idaho statute’s cutoff. The standard
error of measurement “describes the band of error
surrounding an individual’s theoretical ‘true’ score.” David
Wechsler, WAIS-R Manual 31–34 (1981). In other words, the

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measurement “estimates the standard deviation of an
individual’s scores on a test if that person could be tested a
large number of times, and effects such as practice and
fatigue could be ruled out.” Id. Pizzuto argues that his “true
score” could be as low as 67, while the Idaho Supreme Court
noted that the trial court could have inferred a real IQ
anywhere in the range between 67 to 77. Pizzuto, 202 P.3d at
651.
The Idaho Supreme Court’s treatment of these two
potential adjustments in determining whether Pizzuto had
made a prima facie case of mental retardation was not
unreasonable. For one thing, the Flynn Effect is not
uniformly accepted as scientifically valid. See Maldonado v.
Thaler, 625 F.3d 229, 238 (5th Cir. 2010) (“[N]either this
court nor the [state court] has recognized the Flynn Effect as
scientifically valid.”); see also Flynn, supra, at 174 (“The
California court . . . goes further than I would in asserting that
the Flynn Effect seems to be generally accepted in the clinical
field.”). Without more evidence in the record on the need to
include an adjustment such as the Flynn Effect in considering
the relationship between past IQ tests and a person’s true IQ,
the Idaho Supreme Court’s refusal to apply it is not grounds
for reversal here. For another, the Idaho Supreme Court did
account for SEM when it noted that there was a range of
potential true IQs that could be inferred from Pizzuto’s IQ
test score. However, without expert testimony supporting the
notion that a downward adjustment was the more appropriate
inference, they were unwilling to use SEM to infer that
Pizzuto’s true IQ was at the low end of the range.
We conclude that the Idaho Supreme Court’s factual
findings were not unreasonable in light of the record before
it. Although Pizzuto argues that there may have been “more

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reasonable” inferences that could be drawn from the facts in
the record, that is not our standard of review under AEDPA.
“[I]f permissible inferences could be drawn either way, the
state court decision must stand, as its determination of the
facts would not be unreasonable.” Hunterson v. DiSabato,
308 F.3d 236, 250 (3d Cir. 2002).
IV
We hold that the state court’s decision was not
unreasonable under either subsection of § 2254(d), and we
affirm the district court’s denial of Pizzuto’s habeas corpus
petition.5
AFFIRMED.

5

Because the state-court decision was not unreasonable under § 2254(d),
Pizzuto was not entitled to an evidentiary hearing in the federal district
court. See Pinholster, 131 S. Ct. at 1398–1401. His challenges to the
district court’s factual findings and the district court’s order compelling
disclosure of the allegedly privileged material are moot because under
Pinholster we could not consider conclusions of the district court on new
evidence that was not before the state court.

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