Gerald Pizzuto, Jr. v. Randy Blades

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, JR., No. 16-36082

Petitioner-Appellant,

D.C. No.

v. 1:05-cv-00516-

BLW

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 December 11, 2018

San Francisco, California

Filed August 14, 2019

Before: Raymond C. Fisher, Ronald M. Gould

and Johnnie B. Rawlinson, Circuit Judges.

Per Curiam Opinion

2 PIZZUTO V. BLADES

SUMMARY*

Habeas Corpus /Death Penalty

The panel affirmed the district court’s denial of Gerald

Ross Pizzuto, Jr.’s successive habeas corpus petition in which

Pizzuto challenged, based on Atkins v. Virginia, 536 U.S. 304

(2002), the Idaho Supreme Court’s 2008 decision that his

execution is not barred under an Idaho law prohibiting the

execution of intellectually disabled offenders.

Applying 28 U.S.C. § 2254(d)(1), the panel held that the

record does not establish that the Idaho Supreme Court’s

decision was contrary to or involved an unreasonable

application of United States Supreme Court precedent. The

panel wrote that although the state court’s decision was

contrary to clinical standards in place at the time, it was not

obvious at that time that strict adherence to the clinical

standards was required. The panel also wrote that although

the state court’s requirement of an IQ of 70 or below is

contrary to Hall v. Florida, 572 U.S. 701 (2014); Brumfield

v. Cain, 135 S. Ct. 2269 (2015); and Moore v. Texas, 137

S. Ct. 1039 (2017), these decisions all postdated the state

court’s decision, and it was not obvious under Atkins alone

that, for Eighth Amendment purposes, an individual with an

IQ test score between 70 and 75 or lower may show

intellectual disability by presenting additional evidence

regarding difficulties in adaptive functioning.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PIZZUTO V. BLADES 3

Applying 28 U.S.C. § 2254(d)(2), the panel held that the

record does not establish that the Idaho Supreme Court’s

decision was based on an unreasonable determination of the

facts in light of the evidence presented in the state court

proceeding. The panel rejected Pizzuto’s contention that the

state court’s factual determinations are unreasonable merely

because the state court did not apply the clinical definitions

of intellectual disability. The panel rejected Pizzuto’s

contention that the state court unreasonably failed to consider

his school records as evidence of subaverage intellectual

functioning. The panel rejected Pizzuto’s argument that the

state court unreasonably determined that his IQ could have

declined in adulthood due to drug abuse and epilepsy.

Regarding Pizzuto’s argument that the state court’s denial of

an evidentiary hearing was based on an unreasonable

determination of the facts, the panel wrote that the Idaho

Supreme Court never addressed the question of whether

Pizzuto raised a reasonable doubt regarding his intellectual

capacity, and that the Idaho Supreme Court’s failure to apply

a “reasonable doubt” standard was not contrary to or an

unreasonable application of Atkins. The panel wrote that

under the circumstances, the denial of an evidentiary hearing

did not render the state court’s factfinding process

unreasonable under § 2254(d)(2)’s highly deferential

standard.

Because 28 U.S.C. § 2254(d) is not satisfied, the panel

held that the district court properly denied habeas relief. The

panel did not need to address Pizzuto’s remaining appellate

arguments or review his Atkins claim de novo. Accordingly,

the panel did not address whether Pizzuto is intellectually

disabled or whether his execution would violate the Eighth

Amendment. The panel wrote that its decision does not

4 PIZZUTO V. BLADES

preclude the Idaho courts from reconsidering those questions

in light of intervening events.

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 Idaho Code § 19-2515A. Pizzuto challenges the Idaho

Supreme Court’s decision that his execution is not barred

1

We use the current clinical terms, intellectually disabled and

intellectual disability, except when quoting from sources using the former

terms, mentally retarded and mental retardation.

PIZZUTO V. BLADES 5

under that state law. See Pizzuto v. State (Pizzuto I), 202 P.3d

642 (Idaho 2008). We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we affirm the district court’s denial of

Pizzuto’s petition. Because the record does not establish that

the state court’s adjudication of Pizzuto’s Atkins claim

resulted in a decision that “was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” or

“was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,”

habeas relief may not be granted. See 28 U.S.C. § 2254(d).

Because habeas relief is barred under § 2254(d), we do not

address whether Pizzuto is intellectually disabled, nor

whether his execution would violate the Eighth Amendment.

BACKGROUND

In 1986, a state trial court judge sentenced Pizzuto to

death for the murders of Berta Herndon and her nephew Del

Herndon. See Pizzuto I, 202 P.3d at 645. The Idaho Supreme

Court summarized the murders as follows:

Pizzuto approached [the Herndons] with a .22

caliber rifle as they arrived at their mountain

cabin and made them enter the cabin. While

inside, he tied the Her[n]dons’ wrists behind

their backs and bound their legs in order to

steal their money. Some time later, he

bludgeoned Berta Herndon to death with

hammer blows to her head and killed Del

Herndon by bludgeoning him in the head with

a hammer and shooting him between the eyes.

Pizzuto murdered the Her[n]dons just for the

6 PIZZUTO V. BLADES

sake of killing and subsequently joked and

bragged about the killings to his associates.

Id.

Sixteen years later, the Supreme Court decided Atkins,

holding that executions of intellectually disabled persons

constitute “cruel and unusual punishments” prohibited by the

Eighth Amendment to the United States Constitution. See

U.S. Const. amend. VIII. Citing “powerful evidence that

today our society views mentally retarded offenders as

categorically less culpable than the average criminal,” the

Court concluded that “a national consensus has developed

against” such executions. Atkins, 536 U.S. at 316.

The Court, however, did not adopt any single definition

of intellectual disability. It noted that states’ “statutory

definitions of mental retardation [we]re not identical, but

generally conform[ed] to the clinical definitions set forth” by

the American Association on Mental Retardation (AAMR)

and the American Psychiatric Association. See id. at 317

n.22. At the time, the AAMR – now known as the American

Association on Intellectual and Developmental Disabilities

(AAIDD) – defined intellectual disability as follows:

Mental retardation refers to substantial

limitations in present functioning. It is

characterized by significantly subaverage

intellectual functioning, existing concurrently

with related limitations in two or more of the

following applicable adaptive skill areas:

communication, self-care, home living, social

skills, community use, self-direction, health

and safety, functional academics, leisure, and

PIZZUTO V. BLADES 7

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).

8 PIZZUTO V. BLADES

Atkins, however, did not expressly adopt these clinical

definitions of intellectual disability. The Court instead left

that question to the states:

To the extent there is serious disagreement

about the execution of mentally retarded

offenders, it is in determining which offenders

are in fact retarded. In this case, for instance,

the Commonwealth of Virginia disputes that

Atkins suffers from mental retardation. Not

all people who claim to be mentally retarded

will be so impaired as to fall within the range

of mentally retarded offenders about whom

there is a national consensus. As was our

approach in Ford v. Wainwright, 477 U.S. 399

(1986), with regard to insanity, “we leave to

the State[s] the task of developing appropriate

ways to enforce the constitutional restriction

upon [their] execution of sentences.” Id.,

at 405, 416–417.

Id. at 317 (alterations in original).

Shortly after the Atkins decision, Idaho adopted a statute

prohibiting imposition of the death penalty for intellectually

disabled offenders. See 2003 Idaho Sess. Laws 399 (codified

at Idaho Code § 19-2515A(3)). The statute defines

intellectual disability as follows:

(a) “Mentally retarded” means significantly

subaverage general intellectual functioning

that is accompanied by significant limitations

in adaptive functioning in at least two (2) of

the following skill areas: communication,

PIZZUTO V. BLADES 9

self-care, home living, social or interpersonal

skills, use of community resources, self-

direction, functional academic skills, work,

leisure, health and safety. The onset of

significant subaverage general intelligence

functioning and significant limitations in

adaptive functioning must occur before age

eighteen (18) years.

(b) “Significantly subaverage general

intellectual functioning” means an

intelligence quotient of seventy (70) or below.

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

In light of Atkins, Pizzuto filed a fifth petition for state

post-conviction relief, challenging his death sentence on the

ground that he was intellectually disabled. See Pizzuto I,

202 P.3d at 645. In July 2003, the state moved to summarily

dismiss Pizzuto’s petition. See id. at 646. In August 2003,

Pizzuto moved to disqualify the state trial court judge. See id.

In October 2004, Pizzuto moved for additional psychological

testing, asking that he be transported to an appropriate

medical facility for testing in connection with a

neuropsychiatric evaluation by Dr. James R. Merikangas.

Pizzuto did not notice the motion for a hearing, however. See

10 PIZZUTO V. BLADES

id. at 655.2 In January 2005, the state trial court denied the

motion for disqualification. See id. at 646.

In seeking dismissal of Pizzuto’s petition, the state argued

that the petition was untimely under Idaho law and,

alternatively, that Pizzuto had failed to establish a prima face

case of intellectual disability under the new Idaho statute.3

With respect to the latter contention, the state noted that there

were three elements of intellectual disability – subaverage

intellectual functioning, significant limitation in adaptive

functioning and an onset before age 18. With respect to the

first criterion, the state noted that Pizzuto had “a verbal IQ of

72” – based on an IQ test administered by Dr. Michael Emery

in 1985 – but that “[t]he Statute says 70 or below,” and “72

is not 70 or below.” In addition, because Pizzuto’s IQ score

of 72 was obtained when he was 28 years old, the state

argued that “we have no indication of what his IQ was – no

testing, at least – what his IQ . . . was before his 18th

birthday.” The state noted that the court had “no evidence of

an IQ test prior to age 18.”

2

It is not clear why Pizzuto did not notice the motion for a hearing.

At an April 2005 hearing, “Pizzuto’s counsel stated that she could not ask

the district court to rule on her motion for testing, apparently because she

believed the judge should be disqualified from presiding in the case and

therefore from ruling on the motion.” Pizzuto I, 202 P.3d at 655 & n.8.

Counsel for Pizzuto apparently concluded that, because the court had

erroneously denied the motion to disqualify, any order entered by the court

on the question of testing would be void.

3

Initially, the state also argued for summary dismissal on the ground

that, as a matter of state law, Atkins did not apply retroactively. See

Pizzuto I, 202 P.3d at 646. The state subsequently abandoned that

argument, however.

PIZZUTO V. BLADES 11

Pizzuto both opposed the state’s motion for summary

dismissal and, in September 2005, moved for summary

judgment, arguing that he had, as a matter of law, established

a prima facie case of intellectual disability. See id. Pizzuto

argued that the state trial court should deny the state’s motion

for summary dismissal and grant his motion for summary

judgment. In the alternative, Pizzuto argued that his October

2004 motion for additional testing should be granted and the

matter set for trial. See id. at 655–56 & n.9.

In addressing whether Pizzuto had made a prima facie

showing of intellectual disability under the Idaho statute, both

sides recognized that Idaho’s requirement of an IQ of 70 or

below was inconsistent with the AAMR and American

Psychiatric Association clinical standards in effect at the

time. Counsel for Pizzuto, however, acknowledged that

Atkins did not “dictate what retardation is,” while counsel for

the state emphasized that “[t]he United States Supreme Court

said that the states were permitted to define mental

retardation . . . basically as they saw fit.” The state

recognized that the DSM and AAMR manual “talk[ed] about

. . . a 70 IQ plus or minus five,” but the state emphasized that

“the Idaho Statute doesn’t say that. [Section] 19-2515A is

very specific, 70 or below. It doesn’t say plus or minus five.

Seventy or below, period, end of story.” The state observed

that “some states have actually gone below the 70 and one

state . . . has gone to 75.” But “Idaho chose 70.”

The state argued, moreover, that the margin of error was

of no use to Pizzuto, because his “actual” IQ was as likely to

be 77 as 67:

[Section] 2515A says that if the Court finds

by a preponderance of the evidence that the

12 PIZZUTO V. BLADES

defendant is mentally retarded –

preponderance of the evidence, more likely

than not, . . . something over 50 percent.

Well, isn’t it just as likely that Pizzuto’s IQ is

77 as opposed to 67? That’s not a

preponderance of the evidence. So, you have

to go with the 72 and that’s the only number

that this Court has before it, the only number.

In December 2005, after a hearing on the motions, the

state trial court dismissed Pizzuto’s petition on the grounds

that it had not been timely filed under state law and that

Pizzuto had failed to raise a genuine issue of material fact

supporting his claim of intellectual disability. See id. at 646.

Pizzuto timely appealed to the Idaho Supreme Court. See id.

In a 2008 decision, the Idaho Supreme Court affirmed the

state trial court’s denial of Pizzuto’s Atkins claim. See

Pizzuto I, 202 P.3d 642. The court noted that, to survive

summary dismissal, Pizzuto had to present evidence

establishing a prima facie case – i.e., enough evidence to

allow the factfinder to infer the fact at issue and rule in his

favor – on each element of his claim under § 19-2515A(1).

See id. at 650. The court interpreted the Idaho statute as

requiring proof of three elements: “(1) an intelligence

quotient (IQ) of 70 or below; (2) significant limitations in

adaptive functioning in at least two of the ten areas listed; and

(3) the onset of the offender’s IQ of 70 or below and the onset

of his or her significant limitations in adaptive functioning

both must have occurred before the offender turned age

eighteen.” Id. at 651.

The court concluded that Pizzuto failed to establish a

prima facie case as to the first element – an IQ of 70 or

PIZZUTO V. BLADES 13

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

4

The Idaho Supreme Court noted that the state trial court was

permitted to draw inferences in favor of the state when considering

whether to grant summary judgment to the state. See Pizzuto I, 202 P.3d

at 650 (citing Shawver v. Huckleberry Estates, L.L.C., 93 P.3d 685,

691–92 (Idaho 2004)). It is not clear whether this line of authority – see,

e.g., Stafford v. Klosterman, 998 P.2d 1118, 1119 (Idaho 2000); E. Idaho

Agr. Credit Ass’n v. Neibaur, 944 P.2d 1386, 1389 (Idaho 1997); Wells v.

Williamson, 794 P.2d 626, 629 (Idaho 1990); Riverside Dev. Co. v.

Ritchie, 650 P.2d 657, 661 (Idaho 1982) – applies where, as here, the

nonmoving party has made clear that it does not consider the record fully

developed. See Pizzuto I, 202 P.3d at 656 n.9; cf. 10A Charles Alan

Wright et al., Federal Practice and Procedure § 2720 (4th ed. 2019)

(describing, in the text accompanying note 15, the comparable practice

under federal procedure); Int’l Bancorp, LLC v. Societe des Bains de Mer

et du Cercle des Etrangers a Monaco, 329 F.3d 359, 362 (4th Cir. 2003);

Matter of Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991); Fox v.

Johnson & Wimsatt, 127 F.2d 729, 737 (D.C. Cir. 1942). It also is not

clear whether the state trial court in fact drew inferences in favor of the

state; the state trial court’s ruling says only that “Pizzuto failed to raise a

genuine issue of material fact supporting his claim of mental retardation.”

Pizzuto, however, does not raise these questions in his opening brief, and

so we do not address them.

14 PIZZUTO V. BLADES

The court noted that Pizzuto “did not offer any expert

opinion” showing that he “had an IQ of 70 or below at the

time of the murders and prior to his eighteenth birthday.” Id.

at 655. Accordingly, the court held that the trial court did not

err in granting summary judgment to the state. See id.

We granted Pizzuto permission to file a successive federal

habeas petition on his Atkins claim. After additional testing

and an evidentiary hearing, the federal district court denied

Pizzuto’s petition. See Pizzuto v. Blades (Pizzuto II), No.

1:05-CV-516-BLW, 2012 WL 73236, at *21 (D. Idaho Jan.

10, 2012). We initially affirmed. See Pizzuto v. Blades

(Pizzuto III), 729 F.3d 1211, 1224 (9th Cir. 2013).

While Pizzuto’s petition for rehearing was pending,

however, the Supreme Court decided Hall v. Florida,

572 U.S. 701 (2014). In Hall, the Supreme Court considered

a Florida law defining intellectual disability “to require an IQ

test score of 70 or less. If, from test scores, a prisoner is

deemed to have an IQ above 70, all further exploration of

intellectual disability is foreclosed.” Id. at 704. The Court

held that “[t]his rigid rule . . . creates an unacceptable risk

that persons with intellectual disability will be executed, and

thus is unconstitutional.” Id.

At the outset, the Court held that, “[i]n determining who

qualifies as intellectually disabled, it is proper to consult the

medical community’s opinions.” Id. at 710. The Court

explained that “[t]he legal determination of intellectual

disability is distinct from a medical diagnosis, but it is

informed by the medical community’s diagnostic

framework.” Id. at 721.

PIZZUTO V. BLADES 15

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

5

Although the standard error of measurement applicable here, as in

Hall, is plus or minus five points, that is not always the case. See AAIDD,

Intellectual Disability: Definition, Classification, and Systems of Supports

36 (11th ed. 2010) (AAIDD-11) (noting that the standard error of

measurement “varies by test, subgroup, and age group . . . . For well-

standardized measures of general intellectual functioning, the standard

error of measurement is approximately 3 to 5 points.”).

16 PIZZUTO V. BLADES

A court, therefore, may not cut off the inquiry when a

defendant scores between 70 and 75 on an IQ test. Rather,

“[f]or professionals to diagnose – and for the law then to

determine – whether an intellectual disability exists once the

[standard error of measurement] applies and the individual’s

IQ score is 75 or below the inquiry would consider factors

indicating whether the person had deficits in adaptive

functioning.” Id. at 714. The Court “agree[d] with the

medical experts that when a defendant’s IQ test score falls

within the test’s acknowledged and inherent margin of error,

the defendant must be able to present additional evidence of

intellectual disability, including testimony regarding adaptive

deficits.” Id. at 723.6

The Court held that Florida’s “strict IQ test score cutoff

of 70” ran afoul of these requirements in two ways. First, it

6

As the DSM-5 explains:

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-5 at 37.

PIZZUTO V. BLADES 17

“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.

Id. at 720–21.

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

18 PIZZUTO V. BLADES

intellectual disability even when an IQ test score is above

70.” Id. at 717 (citing Pizzuto I, 202 P.3d at 651).7

In light of Hall, we withdrew our opinion, vacated the

judgment of the district court and remanded this case to the

district court. See Pizzuto v. Blades (Pizzuto IV), 758 F.3d

1178 (9th Cir. 2014).

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 § 2254(d)(1), because Hall was not clearly

established law at the time of the state court decision and,

even if it were, the state court’s alternative basis for denying

relief was reasonable. See id. at *6–10. The court also

incorporated its previous conclusion that the state court’s

decision was not based on an unreasonable determination of

7

Idaho’s IQ requirement is less restrictive than the Florida

requirement at issue in Hall because, whereas Florida required an IQ test

score of 70, Idaho requires an “actual IQ” of 70. See Pizzuto I, 202 P.3d

at 651. Under the Florida rule, an individual with an IQ test score of 71

is altogether barred from establishing intellectual disability. Under the

Idaho rule adopted in Pizzuto’s case, that individual could establish

subaverage intellectual functioning if he could somehow show that his IQ

test score overstated his “actual IQ.” Ultimately, however, requiring an

individual to establish an “actual IQ” of 70 in order to satisfy the

intellectual functioning prong of the intellectual disability definition

suffers from a similar infirmity as the Florida rule – it fails to recognize

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,” Atkins, 536 U.S. at 309 n.5, and it fails to recognize that,

“when the lower end of [an IQ] score range falls at or below 70, [a court

must] move on to consider [the individual’s] adaptive functioning,” Moore

v. Texas, 137 S. Ct. 1039, 1049 (2017).

PIZZUTO V. BLADES 19

the facts under § 2254(d)(2). See id. at *10. Finally, after

reviewing the evidence again on remand, the district court

concluded that Pizzuto was not entitled to relief even under

de novo review. See id. at *10–11. This timely appeal

followed.

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 cannot

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 § 2254(d)(2).

See id. at 2276.

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.

20 PIZZUTO V. BLADES

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]ecause 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).

PIZZUTO V. BLADES 21

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

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 state

court 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,” id. § 2254(d)(2).

“[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,

22 PIZZUTO V. BLADES

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 incorrect 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

§ 2254(d)(2), “we may only hold that a state court’s decision

was based on an unreasonable determination of the facts if

‘we [are] convinced that an appellate panel, applying the

normal standards of appellate review, could not reasonably

conclude that the finding is supported by the record.’”

Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014)

(alteration in original) (quoting Taylor v. Maddox, 366 F.3d

992, 1000 (9th Cir. 2004), abrogated on other grounds as

stated in Murray, 745 F.3d at 1000).

We apply our review under § 2254(d) to the last reasoned

state court decision. See Ylst v. Nunnemaker, 501 U.S. 797,

803–04 (1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146

(9th Cir. 2012). Here, we review the Idaho Supreme Court’s

2008 decision. See Pizzuto I, 202 P.3d 642. Because that

court denied Pizzuto’s Atkins claim on the merits, our review

under § 2254(d) is limited to the record that was before the

state court. See Cullen v. Pinholster, 563 U.S. 170, 181

(2011). We may grant habeas relief only if we conclude both

PIZZUTO V. BLADES 23

that § 2254(d) is satisfied and, on de novo review, that the

petitioner is in custody in violation of the Constitution of the

United States. See Frantz v. Hazey, 533 F.3d 724, 735–37

(9th Cir. 2008) (en banc).8

DISCUSSION

Pizzuto invokes both prongs of § 2254(d). He contends

that the Idaho Supreme Court’s decision was “contrary to” or

involved an “unreasonable application” of Supreme Court

precedent. See 28 U.S.C. § 2254(d)(1). Alternatively, he

contends that the state court’s decision was “based on an

unreasonable determination of the facts.” See id.

§ 2254(d)(2). We consider these contentions in turn.

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 § 2254(d)(1).

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

8

We may address these two questions – the § 2254(d) inquiry and de

novo review of the constitutional claim under §§ 2241(c)(3) and 2254(a)

– in any order. See Frantz, 533 F.3d at 736. Typically, we conduct the

AEDPA inquiry first, and where, as here, § 2254(d) is not satisfied, we

need not review the constitutional claim de novo.

24 PIZZUTO V. BLADES

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.

Idaho Code § 19-2515A(1).

In 2008, the Idaho Supreme Court applied this definition

for the first time in Pizzuto’s case. See Pizzuto I, 202 P.3d

at 650–55. The court began by noting that “the statutory

definition . . . requires proof of three elements: (1) an

intelligence quotient (IQ) of 70 or below; (2) significant

limitations in adaptive functioning in at least two of the ten

areas listed; and (3) the onset of the offender’s IQ of 70 or

below and the onset of his or her significant limitations in

adaptive functioning both must have occurred before the

offender turned age eighteen.” Id. at 651. Focusing on the

first element, the court held that, “[i]n order for Pizzuto to

have presented a prima facie case, there must be evidence

showing that he had an IQ of seventy or below before age

eighteen.” Id.

The court then noted that the record included only one IQ

test score for Pizzuto – a Verbal IQ of 72 on the Wechsler

PIZZUTO V. BLADES 25

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

26 PIZZUTO V. BLADES

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] the purpose and effect of the [standard

error of measurement]”; and (4) “refus[ing] to consider the

. . . Flynn Effect.” Id. at 31–32.

PIZZUTO V. BLADES 27

1. “Contrary to” Prong

Initially, we reject Pizzuto’s argument that the Idaho

court’s decision was “contrary to” Atkins. For purposes of

§ 2254(d)(1), “clearly established Federal law” includes only

the holdings, as opposed to the dicta, of the Supreme Court’s

decisions. See White v. Woodall, 572 U.S. 415, 419 (2014).

Here, the Idaho Supreme Court identified the applicable

Supreme Court precedent – Atkins – and acknowledged its

holding that the Eighth Amendment prohibits the execution

of intellectually disabled offenders. See Pizzuto I, 202 P.3d

at 648. The state court’s decision, therefore, was not

“contrary to” Atkins. Although Pizzuto argues that the state

court failed to follow the clinical standards issued by the

AAMR and the American Psychiatric Association, Atkins did

not hold that these standards apply. See Shoop, 139 S. Ct.

at 507 (“Atkins gave no comprehensive definition of ‘mental

retardation’ for Eighth Amendment purposes.”). The state

court’s decision, therefore, could not have been “contrary to”

Atkins on this basis.

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 . . .

§ 2254(d)(1), habeas relief may be granted only if the state

court’s adjudication ‘resulted in a decision that was contrary

to, or involved an unreasonable application of,’ Supreme

Court precedent that was ‘clearly established’ at the time of

the adjudication.” Shoop, 139 S. Ct. at 506 (emphasis

added); see also Lockyer v. Andrade, 538 U.S. 63, 71–72

28 PIZZUTO V. BLADES

(2003) (“‘[C]learly established Federal law’ under

§ 2254(d)(1) is the governing legal principle or principles set

forth by the Supreme Court at the time the state court renders

its decision.” (emphasis added)). The Idaho Supreme Court’s

decision, therefore, could not have been “contrary to” or an

“unreasonable application” of Atkins’ “progeny.”

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-

PIZZUTO V. BLADES 29

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 adaptive behavior.” Id.

at 41–42.9

The 10th edition of the AAMR manual, adopted in 2002,

defined intellectual disability as follows:

9

Under the DSM-IV:

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., a

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.

DSM-IV at 41–42.

30 PIZZUTO V. BLADES

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 alone will not bring an

offender within the protection of the statute.”); id. (“[W]hen

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.”). In doing so, the court

failed to recognize that “it is possible to diagnose Mental

PIZZUTO V. BLADES 31

Retardation in individuals with IQs between 70 and 75 who

exhibit significant deficits in adaptive behavior.” DSM-IV

at 41–42. Nor did the court consider whether Pizzuto

satisfied this standard. The state court’s decision, therefore,

was contrary to the clinical definitions in place at the time.

This conclusion alone, however, does not establish that

the Idaho Supreme Court unreasonably applied Atkins for

purposes of § 2254(d)(1). At the time of the state court’s

decision in 2008, it was not yet apparent that states were

required to define intellectual disability in accordance with

these prevailing clinical definitions. To be sure, Atkins had

cited these clinical definitions with approval, noting that

statutory definitions generally conformed to them and

explaining 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.” Atkins,

536 U.S. at 308 n.3, 309 n.5, 317 n.22. The Court, however,

did not adopt these definitions or require states to follow

them. On the contrary, the Court expressly “le[ft] to the

States the task of developing appropriate ways to enforce the

constitutional restriction upon their execution of sentences.”

Id. at 317 (alterations omitted) (quoting Ford, 477 U.S.

at 416–17).

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]

32 PIZZUTO V. BLADES

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

Idaho Code § 19-2515A(1)(b); Pizzuto I, 202 P.3d at 651,

rather than “an IQ of approximately 70 or below,” DSM-IV

at 49 (emphasis added), and it erred by disregarding the

portions of the clinical standards recognizing that “it is

possible to diagnose Mental Retardation in individuals with

IQs between 70 and 75 who exhibit significant deficits in

adaptive behavior,” id. at 41–42. In other respects, however,

§ 19-2515A(1) tracks the clinical definitions cited by Atkins.

See Atkins, 536 U.S. at 308 n.3. In contrast to Hall,

PIZZUTO V. BLADES 33

moreover, the Idaho court at least recognized the existence of

a standard error of measurement of plus or minus five points

and afforded Pizzuto an opportunity to “present additional

evidence of intellectual disability even when an IQ test score

is above 70.” Hall, 572 U.S. at 717.

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

§ 2254(d)(1)’s unreasonable-application clause if, and only if,

it is so obvious that a clearly established rule applies to a

given set of facts that there could be no ‘fairminded

disagreement’ on the question.” Woodall, 572 U.S. at 427

(quoting Richter, 562 U.S. at 103). We cannot say that this

standard has been satisfied here.

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

34 PIZZUTO V. BLADES

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.

PIZZUTO V. BLADES 35

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 DSM-5 at 37;

AAIDD-11 at 37, Atkins did not discuss the Flynn effect, and

clinical standards in existence at the time of the Idaho

Supreme Court’s decision in 2008 did not discuss the need to

adjust IQ test scores to account for the use of outdated test

norms. Thus, “it 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.”

Hooks v. Workman, 689 F.3d 1148, 1170 (10th Cir. 2012).

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

10

The Flynn effect refers to the observation that IQ scores have been

increasing over time. See AAIDD-11 at 37; Smith v. Ryan, 813 F.3d 1175,

1184 (9th Cir. 2016) (“The basic premise of the Flynn effect is that

because average IQ scores increase over time, a person who takes an IQ

test that has not recently been normed against a representative sample of

the population will receive an artificially inflated IQ score.” (emphasis

omitted)). In light of this effect, the AAIDD has indicated that “best

practices require recognition of a potential Flynn Effect when older

editions of an intelligence test (with corresponding older norms) are used

in the assessment or interpretation of an IQ score.” AAIDD-11 at 37. “In

cases where a test with aging norms is used, a correction for the age of the

norms is warranted.” Id.; see Smith, 813 F.3d at 1185 (noting that the

AAIDD-11 “recognizes the existence of the Flynn Effect and recommends

correcting for the age of norms in outdated tests”). The DSM-5 likewise

identifies the Flynn effect as one of several “[f]actors that may affect test

scores.” DSM-5 at 37. Here, Pizzuto argues that, when his IQ score of 72

is adjusted for the Flynn effect, “it becomes a score of 70.” Opening Brief

at 33 n.2.

36 PIZZUTO V. BLADES

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.

***

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 28 U.S.C. § 2254(d)(1). Although the

state court’s decision was contrary to clinical standards in

place at the time, it was not obvious at that time that strict

adherence to the clinical standards was required. Similarly,

although the state court’s requirement of an IQ of 70 or below

is contrary to Hall, Brumfield and Moore I, these decisions all

postdated the state court’s decision, and it was not obvious

under Atkins alone that, for Eighth Amendment purposes, “an

individual with an IQ test score ‘between 70 and 75 or lower’

may show intellectual disability by presenting additional

evidence regarding difficulties in adaptive functioning.”

Hall, 372 U.S. at 722 (citation omitted) (quoting Atkins,

536 U.S. at 309 n.5). Cf. Shoop, 139 S. Ct. at 508 (“Although

the Court of Appeals asserted that the holding in Moore was

‘merely an application of what was clearly established by

Atkins,’ the court did not explain how the rule it applied can

be teased out of the Atkins Court’s brief comments about the

meaning of what it termed ‘mental retardation.’” (citation

omitted)); Ybarra, 869 F.3d at 1024–25 (“[A]lthough Ybarra

insists that the Nevada Supreme Court unreasonably applied

PIZZUTO V. BLADES 37

Atkins, he relies almost exclusively on the Supreme Court’s

subsequent, more detailed decisions in Moore, Hall, and

Brumfield. These decisions might redefine and expand

Atkins, but they cannot show that the Nevada Supreme Court

applied Atkins in a way that ‘was so lacking in justification

that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded

disagreement.’” (footnote omitted) (quoting Richter, 562 U.S.

at 103)).

B. Section 2254(d)(2)

Pizzuto alternatively contends that the Idaho Supreme

Court’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Under § 2254(d)(2), we may not characterize a state

court’s factual determinations as unreasonable “merely

because [we] would have reached a different conclusion in

the first instance.” Brumfield, 135 S. Ct. at 2277 (alteration

in original) (quoting Wood v. Allen, 558 U.S. 290, 301

(2010)). “Instead, § 2254(d)(2) requires that we accord the

state trial court substantial deference.” Id. “If ‘[r]easonable

minds reviewing the record might disagree about the finding

in question, on habeas review that does not suffice to

supersede the trial court’s . . . determination.’” Id.

(alterations in original) (quoting Wood, 558 U.S. at 301).

Here, Pizzuto challenges the state court’s factual

determinations on several grounds. We address them in turn.

38 PIZZUTO V. BLADES

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 arguing 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 § 2254(d)(2), however, we review a state court’s

factual determinations, not its legal conclusions. Here, the

Idaho Supreme Court did not purport to determine whether

Pizzuto was intellectually disabled under the clinical

PIZZUTO V. BLADES 39

definitions. Instead, it determined only that Pizzuto failed to

make a prima facie “showing that his IQ was 70 or below

prior to his eighteenth birthday.” Id. It is that factual

determination, therefore, that we may review under

§ 2254(d)(2), not the state court’s legal conclusion that an IQ

of 70 or below was required. Accordingly, we must reject

Pizzuto’s contention that the state court’s factual

determinations are unreasonable merely because the state

court did not apply the clinical definitions of intellectual

disability.

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 to make a prima facie showing

that his IQ was 70 or below before his 18th birthday was

unreasonable because it focused exclusively on his single IQ

test score while ignoring other evidence of subaverage

intellectual functioning in the form of his “abysmal school

record.” Opening Brief at 39.

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

40 PIZZUTO V. BLADES

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

§ 2254(d)(2)’s demanding standard.

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.

PIZZUTO V. BLADES 41

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,” because 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 seizures after he turned 19. Id. at 41–42.

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

42 PIZZUTO V. BLADES

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 § 2254(d)(2).

PIZZUTO V. BLADES 43

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 § 2254(d)(2). Opening Brief at 46.

This argument is unpersuasive. First, although Pizzuto

argues that the Idaho Supreme Court unreasonably

determined that he did not raise a reasonable doubt regarding

his intellectual capacity, the Idaho Supreme Court in fact

44 PIZZUTO V. BLADES

never addressed that question. The only question the state

court decided was whether Pizzuto had made a prima facie

showing of intellectual disability, in particular whether he had

made a prima facie showing of a pre-18 IQ of 70 or below.

The court did not address whether Pizzuto had raised a

“reasonable doubt” as to his intellectual disability.

Accordingly, there is no “reasonable doubt” determination for

us to review under § 2254(d)(2).

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 28 U.S.C.

§ 2254(d)(1).

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

PIZZUTO V. BLADES 45

Idaho Supreme Court’s factfinding process itself

unreasonable under § 2254(d)(2).

As we explained in Hibbler, 693 F.3d at 1146,

“[c]hallenges under § 2254(d)(2) fall into two main

categories.” “First, a petitioner may challenge the substance

of the state court’s findings and attempt to show that those

findings were not supported by substantial evidence in the

state court record.” Id. Second, as relevant here, “a

petitioner may challenge the fact-finding process itself on the

ground that it was deficient in some material way.” Id. In

some circumstances, for instance, a “state court’s failure to

hold an evidentiary hearing may render its fact-finding

process unreasonable under § 2254(d)(2).” Id. at 1147.

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 connection with the summary

judgment proceedings, “Pizzuto did not ask the [state trial]

46 PIZZUTO V. BLADES

court to rule on his motion for the specified additional

testing.” Id.

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 conduct 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

PIZZUTO V. BLADES 47

denial of an evidentiary hearing rendered the state court’s

factfinding process unreasonable under § 2254(d)(2)’s highly

deferential standard. See Hibbler, 693 F.3d at 1146–47

(“[W]hen the challenge is to the state court’s procedure, mere

doubt as to the adequacy of the state court’s findings of fact

is insufficient; we must be satisfied that any appellate court

to whom the defect in the state court’s fact-finding process is

pointed out would be unreasonable in holding that the state

court’s fact-finding process was adequate.” (alterations and

internal quotation marks omitted)).

6. Pizzuto’s Remaining § 2254(d)(2) Arguments

The § 2254(d)(2) portion of Pizzuto’s opening brief

appears to fault the Idaho Supreme Court’s decision on

several other grounds. The brief says, for example, that the

Idaho Supreme Court’s decision “rests on an irregular

application of Idaho law.” Opening Brief at 37. It also

asserts that the state court’s denial of an evidentiary hearing

violated Idaho Code § 19-2515A, as well as the

“requirements of Due Process and Equal Protection.” Id.

at 44. Pizzuto’s brief, however, does not “specifically and

distinctly” argue these issues. See United States v. Kama,

394 F.3d 1236, 1238 (9th Cir. 2005). We therefore decline to

address them. See id.

***

In sum, the record does not establish that the Idaho

Supreme Court’s decision was based on an unreasonable

determination of the facts under § 2254(d)(2).

48 PIZZUTO V. BLADES

CONCLUSION

Because § 2254(d) is not satisfied, we hold that the

district court properly denied habeas relief. We need not

address Pizzuto’s remaining appellate arguments or review

his Atkins claim de novo. Accordingly, we do not address

whether Pizzuto is intellectually disabled or whether his

execution would violate the Eighth Amendment.

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 Atkins

claim in 2008, they did so without the benefit of an

evidentiary hearing, without the benefit of the Supreme

Court’s decisions in Hall, Brumfield and Moore I, and

without the benefit of the most recent iterations of the

AAIDD and American Psychiatric Association clinical

standards. Since 2008, the United States Supreme Court has

made clear 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,” Brumfield,

135 S. Ct. at 2278 (quoting Hall, 572 U.S. at 704), and the

professional clinical standards now advise that “best practices

require recognition of a potential Flynn Effect when older

editions of an intelligence test (with corresponding older

norms) are used in the assessment or interpretation of an IQ

score,” AAIDD-11 at 37. The Idaho courts have not yet

addressed whether, under these standards, Pizzuto’s execution

would violate the Eighth Amendment.

The judgment of the district court is affirmed. Each party

shall bear its own costs on appeal.

AFFIRMED.