Pizzuto v. Blades

Filing 281

MEMORANDUM DECISION AND ORDER The Court's previous decision, concluding that Pizzuto is not entitled to habeas relief on his claim of intellectual ability (Dkt. 228 ), is CONFIRMED. The Supreme Court's decision in Hall v. Florida does not alter the Court's analysis in this case. The Court reaffirms its previous issuance of a certificate of appealability as to the intellectual disability claim asserted in the Successive Petition. (See Dkt. 228 .) This case is hereby ordered closed. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GERALD ROSS PIZZUTO, JR.,
Case No. 1:05-cv-00516-BLW
Petitioner,
CAPITAL CASE
v.
RANDY BLADES, Warden, Idaho
Maximum Security Institution,

MEMORANDUM DECISION AND
ORDER ON REMAND

Respondent.

Petitioner Gerald Ross Pizzuto, Jr., is an Idaho state prisoner under a sentence of
death. Before the Court is Pizzuto’s Successive Petition for Writ of Habeas Corpus.1 The
Successive Petition asserts that Pizzuto is intellectually disabled and, therefore, that his
execution is prohibited by the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304
(2002).2 The Court previously denied the Successive Petition after a four-day evidentiary

Pizzuto’s initial federal petition was denied by this Court in 1997, and the judgment was affirmed
by the Ninth Circuit Court of Appeals in 2006. See Pizzuto v. Ramirez, Case No. 1:92-cv-00241-BLW (D.
Idaho) (Dkt. 90, 130.) This Court later denied Pizzuto’s motion for relief from judgment, which was
based on Martinez v. Ryan, 132 S. Ct. 1309 (2012). (See id., Dkt. 149, dated March 22, 2013.) The Ninth
Circuit affirmed that decision in April 2015. Pizzuto v. Ramirez, 783 F.3d 1171, 1173 (9th Cir. 2015).
1

The Supreme Court initially used the term “mentally retarded” to describe those individuals
whose execution is prohibited under Atkins. However, “intellectually disabled” is the currently-accepted
term, which the Court uses in this decision. See Hall v. Florida, 134 S. Ct. 1986, 1990 (“This change in
2

MEMORANDUM DECISION AND ORDER ON REMAND - 1

hearing, concluding that Pizzuto was not entitled to habeas relief on his Atkins claim,
either under 28 U.S.C. § 2254(d) or under de novo review.3 (Dkt. 228.) The Court later
denied Pizzuto’s motion to alter or amend the judgment. (Dkt. 233.) Pizzuto appealed.
On September 9, 2013, the Ninth Circuit affirmed this Court’s decision, holding
that, under 28 U.S.C. § 2254(d), the Idaho Supreme Court’s rejection of Pizzuto’s Atkins
claim was not contrary to, or an unreasonable application of, clearly-established Supreme
Court precedent, nor was it based on an unreasonable determination of the facts. Pizzuto
v. Blades, 729 F.3d 1211, 1224 (9th Cir. 2013), op. withdrawn, 758 F.3d 1178 (9th Cir.
2014). Shortly thereafter, the Supreme Court granted a writ of certiorari in Hall v.
Florida, 134 S. Ct. 471 (cert. granted Oct 21, 2013). The Ninth Circuit then withdrew its
opinion and deferred submission pending the Hall decision. (Dkt. 257.)
In May 2014, the Supreme Court issued its decision in Hall v. Florida, 134 S. Ct.
1986 (2014). In Hall, the Court held, on review of an Atkins claim, that Florida’s
intellectual disability rule—which prohibited further exploration of a petitioner’s Atkins
claim if the petitioner’s intelligence quotient “IQ” test score was above a hard cut-off of
70, without taking into consideration the Standard Error of Measurement (SEM)—
violated the Eighth Amendment. Id. at 1994-95. That is, the Eighth Amendment requires
that if an individual asserting an Atkins claim has an IQ test score within the SEM of a

terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental
Disorders . . . .”).
The evidentiary hearing was held prior to the Supreme Court’s decision, in Cullen v. Pinholster,
that new evidence cannot be presented in federal court with respect to claims adjudicated on the merits in
state court. 563 U.S. 170, 180 (2011).
3

MEMORANDUM DECISION AND ORDER ON REMAND - 2

score of 70, that individual must be allowed the opportunity to present other evidence of
intellectual disability.
After Hall, the Ninth Circuit withdrew its previous opinion in this case, vacated
this Court’s decision on Pizzuto’s Atkins claim, and remanded for consideration of the
applicability, if any, of Hall to the Successive Petition. (Dkt. 261.)
This Court ordered the parties to file supplemental briefs addressing the following
issues: “(1) whether Hall v. Florida applies retroactively to this case; (2) whether and to
what extent Hall affects this Court’s consideration of Petitioner’s claim under 28 U.S.C.
§ 2254(d)(1) or under de novo review; and (3) whether the previous evidentiary hearing
held in this action is sufficient to resolve the issues in this case, whether a new
evidentiary hearing is permissible and warranted, what additional evidence should be
considered, and what that evidence would show.” (Dkt. 265 at 1-2.) The parties have filed
their briefing, and the issue is now ripe for decision. (See Dkt. 268, 276, 279.)
Having carefully reviewed the record, including the state court record, the Court
concludes that the parties have adequately presented the facts and legal arguments in the
briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 9.2(h)(5)
(“Motions and petitions shall be deemed submitted and shall be determined upon the
pleadings, briefs, and record. The court, at its discretion, may order oral argument on any
issue or claim.”). Accordingly, the Court enters the following Order concluding that the
Supreme Court’s decision in Hall v. Florida does not alter the Court’s previous decision
in this case.

MEMORANDUM DECISION AND ORDER ON REMAND - 3

STANDARDS OF LAW
1.

Habeas Corpus Standard of Law
Federal habeas corpus relief may be granted on claims adjudicated on the merits in

a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances
where the state court’s adjudication of the petitioner’s claim
(1)

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

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). Although a federal habeas court reviews the state court’s “last
reasoned decision” in determining whether a petitioner is entitled to relief. Ylst v.
Nunnemaker, 501 U.S. 797, 804 (1991), a state court need not “give reasons before its
decision can be deemed to have been ‘adjudicated on the merits’” under § 2254(d).
Harrington v. Richter, 562 U.S. 86, 100 (2011).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.

MEMORANDUM DECISION AND ORDER ON REMAND - 4

Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasis omitted).
A federal court cannot grant habeas relief simply because it concludes, in its
independent judgment, that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is precluded by § 2254(d)(1). Richter, 562 U.S. at 102. The Supreme Court has
emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted). To be entitled to habeas

MEMORANDUM DECISION AND ORDER ON REMAND - 5

relief under § 2254(d)(1), “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” White, 134 S. Ct. at 1702 (internal quotation marks omitted).
Though the source of clearly established federal law must come from the holdings
of the United States Supreme Court, circuit precedent may be persuasive authority for
determining whether a state court decision is an unreasonable application of Supreme
Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). However,
circuit law may not be used “to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified “that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review
if a claim was adjudicated on the merits in state court and if the underlying factual
determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d
984, 999 (9th Cir. 2014).
When a petitioner contests the reasonableness of the state court’s factual
determinations, the petitioner must show that the state court decision was based upon
factual determinations that were “unreasonable . . . in light of the evidence presented in

MEMORANDUM DECISION AND ORDER ON REMAND - 6

the State court proceeding.” 28 U.S.C. § 2254(d)(2). A “state-court factual determination
is not unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
The United States Court of Appeals for the Ninth Circuit has identified five types
of unreasonable factual determinations that result from procedural flaws that occurred in
state court proceedings: (1) when state courts fail to make a finding of fact; (2) when
courts mistakenly make factual findings under the wrong legal standard; (3) when “the
fact-finding process itself is defective,” such as when a state court “makes evidentiary
findings without holding a hearing”; (4) when courts “plainly misapprehend or misstate
the record in making their findings, and the misapprehension goes to a material factual
issue that is central to petitioner’s claim”; or (5) when “the state court has before it, yet
apparently ignores, evidence that supports petitioner’s claim.” Taylor v. Maddox, 366
F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
This strict deferential standard of § 2254(d) applies to habeas claims except in the
following narrow circumstances: (1) where the state appellate court did not decide a
properly-asserted federal claim; (2) where the state court’s factual findings are
unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural
default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In those
circumstances, the federal district court reviews the claim de novo and, as in the pre-

MEMORANDUM DECISION AND ORDER ON REMAND - 7

AEDPA era, may draw from both United States Supreme Court and circuit precedent,
limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. §
2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. On the other
hand, if a state court factual determination is unreasonable, the federal court is not limited
by § 2254(e)(1). Rather, the federal district court may consider evidence outside the state
court record, except to the extent that § 2254(e)(2) might apply. Murray, 745 F.3d at
1000.
2.

Standard of Law Regarding Claims of Intellectual Disability
The Eighth Amendment to the Constitution prohibits cruel and unusual

punishment. U.S. Const., amend. VIII. In 2002, the United States Supreme Court
determined that the Eighth Amendment forbids the execution of individuals who were
intellectually disabled at the time of their crime. Atkins, 536 U.S. at 321. That is,
intellectually disabled criminals are “categorically excluded from execution.” Id. at 318.
A capital habeas petitioner may show that he was intellectually disabled at the
time of the crime—and therefore not subject to execution—by establishing the following:
1.

The petitioner has “significantly subaverage intellectual
functioning”; and

2.

The petitioner suffers from deficits in adaptive functioning in two of
ten listed areas, which means that the petitioner is unable “to learn
basic skills and adjust behavior to changing circumstances”; and

MEMORANDUM DECISION AND ORDER ON REMAND - 8

3.

The onset of these first two factors—subaverage intellectual
functioning and deficits in adaptive functioning—occurred “during
the developmental period,” which means before the age of eighteen.

Hall, 134 S. Ct. at 1994; Atkins, 536 U.S. at 308 n.3.
In Atkins’s wake, many states, including Idaho, passed legislation establishing
procedures for capital defendants to assert that they are intellectually disabled. Although
Atkins set forth the general, three-pronged analysis for intellectual disability, it left “to the
States the task of developing appropriate ways to enforce” the rule prohibiting the
execution of the intellectually disabled. 536 U.S. at 317 (internal quotation marks and
alteration omitted). Specifically, Atkins did not address how a state must define
“significantly subaverage intellectual functioning” or how such functioning could be
proved. Further, the Atkins Court recognized that there was “serious disagreement”
among the States as to the most appropriate method for determining whether a petitioner
was, in fact, intellectually disabled. Id. Atkins did not attempt to resolve that
disagreement.
The Supreme Court later clarified Atkins in Hall v. Florida. The state statute at
issue in Hall, as interpreted by the Florida Supreme Court, had defined the first prong of
the Atkins test—significantly subaverage intellectual functioning—as an IQ test score of
70 or below, without consideration of the SEM of plus or minus five points. Hall, 134 S.
Ct. at 1994. If a petitioner could not show an IQ score of 70 or below, he would, as a
matter of law, fail to establish intellectual disability. The Florida statute did not allow
further inquiry into the petitioner’s intellectual functioning to determine whether he

MEMORANDUM DECISION AND ORDER ON REMAND - 9

satisfied the first prong notwithstanding the IQ test score within the margin for
measurement error, nor did it allow inquiry into the other two prongs of the intellectual
disability definition. Florida courts took “an IQ score as final and conclusive evidence of
a defendant’s intellectual capacity, when experts in the field would consider other
evidence,” and relied “on a purportedly scientific measurement the defendant’s abilities,
his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.”
Id. at 1995. The Court will refer to this type of intellectual disability statute as
establishing a “hard IQ score cutoff.”
Pursuant to Hall, rejecting an Atkins claim based solely on a hard IQ score cutoff
without consideration of the SEM is unconstitutional. Rather, “when a defendant’s IQ test
score falls within the IQ test’s acknowledged and inherent [SEM], the defendant must be
able to present additional evidence of intellectual functioning, including testimony
regarding adaptive deficits.” Id. at 2001.4
Three main points may be gleaned from Hall. First, subaverage intellectual
functioning—the first prong of the intellectual disability analysis—can be established by
evidence of an IQ score, and an IQ score of 70 or below will satisfy that prong.
“Significantly subaverage intellectual functioning” is generally defined by the medical
and scientific community as having an IQ that is “approximately two standard deviations
below the population mean,” which equates to an IQ score of 70 or below. Hall, 134 S.
Hall did not address the Flynn effect, which refers to the phenomenon that a population’s mean
IQ score tends to increase over time. (Pet. Brief, Dkt. 268, at 18 n.5.) The Court previously “granted
[Pizzuto] the[] adjustments [for both the Flynn effect and the SEM], for the sake of argument,” but
concluded that these adjustments “still d[id] not get him close to the threshold for significantly
subaverage general intellectual functioning.” (Dkt. 228 at 30.)
4

MEMORANDUM DECISION AND ORDER ON REMAND - 10

Ct. at 1994 (internal quotation marks and citation omitted). Therefore, the first Atkins
prong is established by an IQ test score of 70 or below.
Second, an IQ score of 76 or higher means that the individual does not suffer from
significantly subaverage intellectual functioning and, therefore, is not entitled to relief
under Atkins. The medical and scientific community takes the SEM into consideration
when determining whether an individual has significantly subaverage intellectual
functioning. The SEM is “a unit of measurement” that equates to plus or minus five
points on the IQ test score scale. Id. at 1995. For example, an IQ test score of 70 indicates
a ranged score of somewhere between 65 and 75, id., and a test score of 76 indicates a
ranged score of 71 to 81. Thus, an individual with an IQ score of 76 or higher would not
be diagnosed as intellectually disabled because, under the first prong of Atkins, that IQ
score is outside the range of error contemplated by the SEM.
Finally, Hall resolved the conundrum of an IQ test score between 71 and 75.
Because these scores are within the lower range of the SEM, petitioners with such scores
might meet the first prong of the intellectual disability analysis—that is, they might have
an IQ of 70 or below, which establishes significantly subaverage intellectual
functioning—or they might not. What Hall makes clear is that petitioners with IQ scores
of 71 to 75 must be allowed to present additional evidence of intellectual disability,
including additional evidence of subaverage intellectual functioning and evidence of the
second and third prongs of the analysis—deficits in adaptive functioning and onset before
the age of eighteen. 134 S. Ct. at 2001. A state cannot constitutionally end the inquiry

MEMORANDUM DECISION AND ORDER ON REMAND - 11

into intellectual disability simply because the petitioner presents an IQ score of 71 to 75.
The IQ test score that Pizzuto presented to the Idaho Supreme Court was a verbal score of
72, resulting from a test administered by Dr. Emery in 1985. Although not a full-scale
score,5 the verbal score of 72 is within the range of scores affected by the Hall decision.6
Just as important as what Hall decided is what Hall did not decide. Hall did not
declare unconstitutional a statute describing the first prong of the intellectual disability
test as evidenced by an IQ of 70 or below—that is precisely the same definition of
significantly subaverage intellectual functioning that the medical and scientific
community accepts. Rather, Hall decided that an IQ test score between 71 and 75,
without consideration of the SEM, cannot conclusively establish that the petitioner’s IQ
is above 70 and that the petitioner therefore does not meet the first prong of Atkins. The
Hall decision applies (1) only to the first prong of an intellectual disability analysis, (2)
only to the extent that a petitioner presents an IQ test score of 71 to 75, and (3) only to
the extent that the petitioner is prohibited from presenting evidence beyond an IQ test
score to establish an IQ of 70 or below, or from presenting evidence as to the second and
third prongs of the analysis.

As Dr. Emery testified at this Court’s evidentiary hearing, considering that Pizzuto’s verbal score
was 72, Pizzuto’s full-scale score “probably” would have been higher, “given his history.” (Dkt. 194, Tr.
at 26-27.) Although potentially relevant to the first prong of the intellectual disability analysis, this point
is irrelevant to the second and third prongs.
5

6

At the evidentiary hearing in this Court, there was also evidence of two additional IQ scores: (1) a
full-scale score of 92, which was obtained as part of Dr. Beaver’s 1996 neuropsychiatric testing, and (2) a
full-scale score of 60 to 65 (adjusted upwards from 60 to take into consideration Pizzuto’s medical
problems, which could have caused his intellectual functioning to deteriorate later in life), which was
obtained by Dr. Weinstein during a 2009 evaluation.

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DISCUSSION
The parties are familiar with the factual and procedural background of this case.
The Court specifically adopts its recitation of the factual and procedural background of
this case as stated in its Memorandum Decision and Order dated January 10, 2012. (Dkt.
228.)
For the reasons that follow, Hall v. Florida does not affect the Court’s previous
decision in this case. The Court concludes—under both AEDPA and de novo review—
that Pizzuto has failed to satisfy the first and third prongs of the intellectual disability
analysis. Thus, Pizzuto is not entitled to relief on his Atkins claim.
1.

Assuming without Deciding that Hall Is Retroactive, the Idaho Supreme
Court’s Decision Rejecting Pizzuto’s Atkins Claim Was Not Objectively
Unreasonable under AEDPA
In Teague v. Lane, 489 U.S. 288, 305-10 (1989), the United States Supreme Court

held that, in general, new rules of constitutional law do not apply retroactively to cases on
collateral review. There are two exceptions to this general rule. First, a new rule applies
retroactively if it is a substantive rule—that is, the new rule “places certain kinds of
primary, private individual conduct beyond the power of the criminal law-making
authority to proscribe.” Id. at 311 (internal quotation marks omitted). Second, if a new
rule is procedural rather than substantive, it applies retroactively only if it is a “watershed
rule[] of criminal procedure” that “implicate[s] the fundamental fairness of the trial.” Id.
at 311-12.
The Supreme Court has held that the retroactivity inquiry of Teague is distinct
from § 2254(d)(1)’s requirement that, to be objectively unreasonable, a state court’s
MEMORANDUM DECISION AND ORDER ON REMAND - 13

decision must violate federal law that was clearly established at the time of that court’s
decision. Horn v. Banks, 436 U.S. 266, 272 (2002) (per curiam). Therefore, to be eligible
for relief under AEDPA, a petitioner must show both that the rule he seeks to invoke is
retroactive—either because it is not a new rule, it is a substantive rule, or it is a watershed
rule of criminal procedure—and that the state court’s decision violated Supreme Court
precedent that was clearly-established at the time of that decision:
The retroactivity rules that govern federal habeas review on
the merits—which include Teague—are quite separate from
. . . AEDPA; neither abrogates or qualifies the other. If
§ 2254(d)(1) was, indeed, pegged to Teague, it would
authorize relief when a state-court merits adjudication
‘resulted in a decision that became contrary to, or an
unreasonable application of, clearly established Federal law,
before the conviction became final.’ The statute says no such
thing, and we see no reason why Teague should alter
AEDPA’s plain meaning.
Greene v. Fisher, 132 S. Ct. 38, 44 (2011). See also Demirdjian v. Gipson, 832 F.3d
1060, 1076 n.12 (9th Cir. 2016) (“Even if applying a rule retroactively would comport
with Teague, we still must ask whether doing so would contravene section 2254(d)(1) by
granting relief based on federal law not clearly established as of the time the state court
render[ed] its decision.”) (internal citations and quotation marks omitted).
Both parties have fully briefed the Teague issue, and both make salient points.
Neither the Supreme Court nor the Ninth Circuit have addressed whether Hall applies
retroactively to cases on collateral review. That inquiry is difficult and complex. In this
case, however, it is also unnecessary. Even if Hall does apply retroactively, Pizzuto still
is not entitled to habeas relief on his Atkins claim.

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A.

The Decision of the Idaho Supreme Court

Idaho’s intellectual disability statute requires that an individual seeking relief from
a capital sentence based on intellectual disability show “significantly subaverage general
intellectual functioning.” Idaho Code § 19-2515A(1)(a). Like the medical and scientific
community, the statute defines “significantly subaverage general intellectual functioning”
as “an intelligence quotient of seventy (70) or below.” Id. § 19-2515A(1)(b). The Idaho
statute does not explicitly prohibit consideration of the SEM, nor does it explicitly state
that the only way to prove an IQ is with evidence of an IQ test score. Therefore, on its
face, the Idaho statute could have been interpreted to be consistent with Atkins and Hall.
See Hall, 134 S. Ct. at 1994 (“On its face this statute could be interpreted consistently
with Atkins and with the conclusions this Court reaches in the instant case. Nothing in the
statute precludes Florida from taking into account the IQ test’s standard error of
measurement . . . .”).
However, in adjudicating Pizzuto’s Atkins claim, the Idaho Supreme Court appears
to have interpreted the statute as prohibiting consideration of the SEM—that is, the Idaho
statute established a hard IQ score cutoff of 70. Pizzuto v. State, 202 P.3d 642, 651 (Idaho
2008).7 Noting that the only record evidence of Pizzuto’s IQ was a verbal test score of 72,

7

As the Court has previously stated,
while the Idaho Supreme Court noted that the literal language of the
statute prohibited the consideration of a score above 70, it next
hypothesized that even if a standard error of measurement were applied,
‘[i]t would be just as reasonable to infer that Pizzuto’s IQ . . . was 77 as it
would be to infer that it was 67.’ [Pizzuto, 202 P.3d] at 651. It is not
entirely clear whether the state court’s opinion in Pizzuto’s case
precludes consideration of a standard error of measurement in all cases.

MEMORANDUM DECISION AND ORDER ON REMAND - 15

the Idaho Supreme Court stated 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. Thus, reasoned
the court, Pizzuto had not established significantly subaverage intellectual functioning.
Notwithstanding its determination that Pizzuto had failed to establish a genuine
dispute as to subaverage intellectual functioning under the first prong of the intellectual
disability analysis, the Idaho Supreme Court then went on to consider the third prong of
that analysis—onset before the age of eighteen. The court determined that the expert
opinions in the record about Pizzuto’s mental functioning reasonably supported an
inference that his IQ was actually higher than 70 before he was 18 years of age and could
have decreased before his IQ was first tested at age 29—which resulted in a verbal IQ
score of 72. Id. at 651-55. These opinions included (1) Dr. Merikangas’s opinion that
Pizzuto’s “long history of drug use” caused “further neurological dysfunction”; and (2)
Dr. Beaver’s opinion that Pizzuto’s epilepsy and polysubstance abuse could have cause
Pizzuto’s mental functioning to decline over the nearly eleven years that passed between
Pizzuto’s eighteenth birthday (on January 11, 1974) and his verbal IQ test (taken on
December 12, 1985).
The Idaho Supreme Court emphasized that, to be entitled to the protection of the
Atkins rule, a petitioner was required to demonstrate that he was intellectually disabled
“at the time of the murders and prior to his eighteenth birthday,” which Pizzuto had not

But because both Pizzuto and Respondent seem to assume that to be the
true [sic], the Court will likewise so assume for purposes of this decision.
(Dkt. 228 at 18 n.3.)

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done.8 Id. at 655; see also id. at 651 (“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.”). Therefore, the Idaho Supreme Court denied
Petitioner’s Atkins claim.
B.

At the Time of the Idaho Supreme Court’s Decision, It Was Not Clearly
Established that a Hard IQ Score Cutoff of 70 Violated the Eighth
Amendment

After Hall, it is clear that the Idaho Supreme Court’s interpretation of Idaho’s
intellectual disability statute as establishing a hard IQ score cutoff of 70 without
considering the SEM is unconstitutional, to the extent that court held that no further
evidence of intellectual disability could be presented. However, the question under
AEDPA is not whether that interpretation is unconstitutional now, but whether it was so
obviously unconstitutional, at the time of the Idaho Supreme Court’s decision, that all
fairminded jurists would have agreed that a hard IQ score cutoff of 70 was
unconstitutional. See Richter, 562 U.S. at 103.
Before Hall was decided, this Court fully analyzed whether the interpretation of a
hard cutoff of 70 violated AEDPA in its previous merits decision, as well as its denial of
Pizzuto’s motion to alter or amend the judgment, and the Court incorporates its reasoning

8

The state court did not address whether Pizzuto had satisfied the second prong of the intellectual
disability inquiry—deficits in adaptive functioning.

MEMORANDUM DECISION AND ORDER ON REMAND - 17

in those decisions into its analysis here. (Dkt. 228, 233.) The only applicable Supreme
Court precedent issued after those decisions is Hall. Therefore, whether the state court’s
decision violated § 2254(d)(1) turns on whether Hall’s rejection of a hard IQ score cutoff
of 70 was so clearly required by Atkins that it was, essentially, nearly a foregone
conclusion.
As the Supreme Court later stated in Hall, Atkins itself did not provide “definitive
procedural or substantive guides for determining when a person who claims [intellectual
disability] falls within the protection of the Eighth Amendment.” 134 S. Ct. at 1998
(internal quotation marks omitted). Specifically, Atkins did not hold that a hard IQ score
cutoff was unconstitutional, nor did it plainly require consideration of an IQ test’s SEM
with respect to the first prong. See White, 134 S. Ct. at 1702 (“Clearly established Federal
law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of
this Court’s decisions.”) (internal quotation marks and alteration omitted). As this Court
previously explained, Atkins “did not constitutionalize any specific definition” of
significantly subaverage intellectual functioning. (Dkt. 228 at 20.) The Atkins Court
stated explicitly that it would leave “to the States the task of developing appropriate ways
to enforce” the rule against the execution of intellectually disabled criminals. 536 U.S. at
317. Hall was essentially a clarification and an extension of Atkins. And, as the Supreme
Court has instructed, AEDPA does not allow federal courts to extend Supreme Court
precedent for purposes of applying clearly-established law. White, 134 S. Ct. at 1706.

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The Hall majority did make several points indicating that its holding flowed
directly from Atkins. The Court noted that Atkins “twice cited definitions of intellectual
disability which, by their express terms, rejected a strict IQ test score cutoff at 70.” Hall,
134 S. Ct. at 1998. The Atkins Court relied on the definition in the DSM-IV that “mild
[intellectual disability] is typically used to describe people with an IQ level of 50-55 to
approximately 70,” and noted that “an IQ between 70 and 75 or lower is typically
considered the cutoff IQ score for the intellectual function prong of the [intellectual
disability] definition.” Id. at 1998-99 (emphasis added) (internal quotation marks and
alteration omitted). Additionally, “Atkins itself not only cited clinical definitions for
intellectual disability but also noted that the States’ standards, on which the Court based
its own conclusion, conformed to those definitions.” Id.
However, that the Hall majority determined that its repudiation of a hard IQ score
cutoff of 70 flowed directly from Atkins does not necessarily mean that the
unconstitutionality of such a cutoff was clearly established at the time of the Idaho
Supreme Court’s decision. See Kilgore v. Sec’y, Florida Dep’t of Corr., 805 F.3d 1301,
1310-11 (11th Cir. 2015) (“[I]f Hall ‘interpreted’ or ‘refined’ Atkins, that does not mean
[Hall’s] holding was ‘clearly established Federal law’ under § 2254(d)(1).”).
As the Supreme Court emphasized in Richter, “[a] state court’s determination that
a claim lacks merit precludes federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s decision.” 562 U.S. at 101 (emphasis
added) (internal quotation marks omitted). In Hall, four Supreme Court justices would

MEMORANDUM DECISION AND ORDER ON REMAND - 19

have held that Florida’s hard IQ score cutoff of 70 did not violate the Eighth Amendment.
134 S. Ct. at 2002 (Alito, J., dissenting). Both the majority and dissenting opinions in
Hall are well-reasoned and well-supported, and this Court cannot say that every
fairminded jurist would have agreed with the Hall majority at the time the Idaho Supreme
Court rendered its decision on Pizzuto’s Atkins claim.
The holding in Hall was by no means a foregone conclusion, and fairminded
jurists could have concluded, at the time of the Idaho Supreme Court’s decision, that a
hard IQ score cutoff of 70 was indeed constitutional. That is, the constitutionality of such
a cutoff was not “beyond any possibility for fairminded disagreement.” Richter, 562 U.S.
at 103. Therefore, the Idaho Supreme Court’s refusal to consider the SEM was not
contrary to, or an unreasonable application of, the Atkins decision, and Pizzuto is not
entitled to relief under § 2254(d)(1).
C.

Even If It Was Clearly Established, at the Time of the Idaho Supreme
Court’s Decision, that a Hard IQ Score Cutoff of 70 Was
Unconstitutional, the Idaho Supreme Court’s Alternative Basis for
Rejecting Pizzuto’s Atkins Claim Was Not Objectively Unreasonable
under § 2254(d)(1)

Even assuming that the Idaho Supreme Court’s refusal to consider the SEM
violated clearly-established federal law, Pizzuto still cannot demonstrate that he is
eligible for relief under § 2254(d)(1). The state supreme court also held Pizzuto did not
establish that any subaverage intellectual functioning developed before he turned
eighteen—the third prong of the intellectual disability analysis. And this alternative
conclusion was not contrary to, or an unreasonable application of, clearly-established
Supreme Court precedent.
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There is no clearly-established Supreme Court precedent as to how a petitioner
may prove, or how a court must apply, the age-of-onset requirement. Hall did not address
the third prong of the intellectual disability inquiry at all. Thus, even assuming Pizzuto
satisfies the first prong and does, indeed, have significantly subaverage intellectual
functioning, the state court’s conclusion that Pizzuto did not satisfy the age-of-onset
requirement is not objectively unreasonable under AEDPA, and he is not entitled to relief
on his Atkins claim.
Pizzuto argues that the Idaho Supreme Court required him to present a “pre-18 70
IQ score” and that Hall makes clear that such a requirement unconstitutional. (Dkt. 268 at
15, ECF p. 21.) However, contrary to Petitioner’s argument, the state court did not erect a
“pre-18 IQ score barrier.” (Id.) Instead, that court determined that Pizzuto had not
provided sufficient evidence that his IQ—as opposed to his IQ test score—was 70 or
below before he turned eighteen. Pizzuto, 202 P.3d at 651 (“[T]here must be evidence
showing that [Pizzuto’s] IQ was 70 or below prior to his eighteenth birthday on January
11, 1974.” (emphasis added)). The state court’s analysis of the third prong of the
intellectual disability test was independent of its analysis of the first prong, and this Court
has already rejected Pizzuto’s argument on this issue. (Dkt. 228 at 25 n.5 (“Pizzuto also
complains that the Idaho Supreme Court’s opinion requires evidence of an IQ test score
of 70 or below from before an offender’s 18th birthday. This Court disagrees and
interprets the state court’s decision as instead requiring some evidence from which a
factfinder could reasonably find that the offender’s IQ score would have been 70 or

MEMORANDUM DECISION AND ORDER ON REMAND - 21

below before age 18, regardless whether he or she was tested as a child. This is a subtle
but important distinction . . . .”).)
Concluding that Pizzuto’s adult drug use and medical problems were likely
responsible for the decline in his intellectual functioning, the Idaho Supreme Court
determined that Pizzuto did not suffer from significantly subaverage intellectual
functioning prior to his eighteenth birthday. Pizzuto has simply not established that this
determination was objectively unreasonable under 28 U.S.C. § 2254(d).
D.

The Idaho Supreme Court’s Decision Was Not Based on an
Unreasonable Determination of the Facts in Light of the Evidence
Presented under § 2254(d)(2)

The Court previously concluded Pizzuto had not shown that the Idaho Supreme
Court based its decision on an unreasonable finding of fact under § 2254(d)(2). Because
the Hall question addressed in this decision is a pure question of law that does not alter
the factual record, the Court incorporates and adopts its previous analysis on this issue.
(See Dkt. 228 at 21-26.)
Pizzuto, however, claims that the state court misunderstood Atkins and that, when
Atkins and Hall are considered together, it becomes clear that the court’s factual findings
are unreasonable because those findings were “necessarily skewed” by its mistaken
interpretation of Atkins. (Dkt. 268 at 18, ECF p. 24.) Pizzuto states that “[t]he facts,
summarily and inferentially found, 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 Hall.” (Id.)

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However, the Idaho Supreme Court carefully considered the evidence in the record
and found Pizzuto had not established that any significant subaverage intellectual
functioning developed before he turned eighteen years of age. As previously explained,
the court relied on credible evidence that Pizzuto’s medical problems and drug abuse
could very well have caused his intellectual functioning to decline in the eleven years
between his eighteenth birthday and the date of the IQ test resulting in a verbal score of
72. In doing so, the state court did not make any unreasonable findings of fact. See
Taylor, 366 F.3d. at 1000-01 (describing types of unreasonable factual findings).
2.

On De Novo Review, Pizzuto Has Not Shown Intellectual Disability and,
Therefore, Is Not Entitled to Relief under Atkins9
In addition to concluding that AEDPA barred relief on Pizzuto’s Atkins claim, this

Court also denied Pizzuto’s Atkins claim after a de novo review. Specifically, Petitioner
did not establish the first and third prongs of the analysis—that he had an IQ of 70 or
below considering the SEM, thereby suffering from significantly subaverage intellectual
functioning, before he turned eighteen.10 (Dkt. 228 at 26-32.) The Court was presented
with three IQ scores: one below 70, one above 90, and one in the grey area between 71
and 75. Considering all the evidence presented, the Court resolved the conflict in that
evidence and concluded that Pizzuto did not suffer from significant subaverage
intellectual functioning before he turned eighteen. Cf. Larry v. Branker, 552 F.3d 356,
9

Again, for purposes of this decision, the Court assumes without deciding that Hall applies
retroactively to Pizzuto’s case.
10

The Court also found that, prior to his eighteenth birthday, Pizzuto had significant deficits in
adaptive functioning sufficient to meet the second prong of the intellectual disability analysis. (Dkt. 28 at
32-37.)

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371 (4th Cir. 2009), cert. denied, 558 U.S. 953 (2009) (holding that a state court’s
rejection of an Atkins claim was reasonable where the state court had evidence of one IQ
test score above 70 and one IQ test score below 70).
Pizzuto asks to reopen the evidentiary hearing and present further evidence of
intellectual disability. (Dkt. 268 at 44, ECF p. 50.) However, Pizzuto has not convinced
the Court that the previous evidentiary hearing was insufficient in any way. Petitioner had
an adequate opportunity and a strong incentive to bring forward all his evidence at the
evidentiary hearing. Not only has Pizzuto failed to prove that his IQ was 70 or below, but
having reviewed all the evidence once again on remand, the Court finds that Pizzuto has
also failed to prove that his IQ was 75 or below before he turned eighteen. (See Dkt.
228.) Thus, nothing in Hall renders suspect any of the Court’s previous findings and
conclusions on de novo review.
The Court need not re-invent the wheel and thus incorporates and adopts its
previous de novo analysis. For the reasons explained in the Court’s decision denying the
Successive Petition, as well as its decision denying Pizzuto’s motion to alter or amend the
judgment (Dkt. 228 & 223), the Court concludes, on de novo review, that Pizzuto has not
shown that he suffered from significantly subaverage intellectual functioning at the time
of the crime, or that any subaverage intellectual functioning existed prior to Pizzuto’s
eighteenth birthday. Therefore, Pizzuto has not established that he is intellectually
disabled and is not entitled to habeas relief under Atkins and Hall.

MEMORANDUM DECISION AND ORDER ON REMAND - 24

CONCLUSION
For the reasons set forth above, the Court concludes that Hall v. Florida does not
alter the Court’s previous decision denying the Successive Petition.
ORDER
IT IS ORDERED:
1.

The Court’s previous decision, concluding that Pizzuto is not entitled to
habeas relief on his claim of intellectual ability (Dkt. 228), is
CONFIRMED. The Supreme Court’s decision in Hall v. Florida does not
alter the Court’s analysis in this case.

2.

The Court reaffirms its previous issuance of a certificate of appealability as
to the intellectual disability claim asserted in the Successive Petition. (See
Dkt. 228.)

3.

This case is hereby ordered closed.

DATED: November 28, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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