Reply Brief — Gerald Ross Pizzuto, Jr., Petitioner v. Keith Yordy, Warden

No. 19-8598

IN THE

SUPREME COURT OF THE UNITED STATES

GERALD ROSS PIZZUTO,

Petitioner,

v.

TYRELL DAVIS, WARDEN, IDAHO MAXIMUM SECURITY INSTITUTION

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

Deborah A. Czuba*

Bruce D. Livingston

Jonah J. Horwitz

FEDERAL DEFENDER SERVICES OF IDAHO, INC.

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Deborah_A_Czuba@fd.org

208-331-5530

*Counsel of Record

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

Table of Authorities ....................................................................................................... ii

I.

Respondent does not resolve the Ninth Circuit’s conflict with Atkins. ............. 2

A. Respondent misreads Atkins. .............................................................................. 2

B. Respondent misreads Atkins’ progeny. ............................................................... 5

C. Respondent misreads AEDPA. ............................................................................ 6

II.

Respondent sidesteps, but does not resolve, the Ninth and Tenth Circuit’s

split over Atkins. ............................................................................................................ 8

III. Respondent sidesteps, but does not resolve, the state court’s unreasonable

determination of fact. .................................................................................................... 9

A. Respondent overlooks that IQ decline, without more, does not affect pre-18

onset. ......................................................................................................................... 10

B. Respondent overlooks the Ninth Circuit’s failure to follow Brumfield. .......... 11

IV.

Conclusion. ......................................................................................................... 12

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page i

TABLE OF AUTHORITIES

Supreme Court Opinions

Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................. passim

Bobby v. Bies, 556 U.S. 825 (2009) .............................................................................. 5

Brumfield v. Cain, 576 U.S. 305 (2015) .............................................................. 11, 12

Ford v. Wainwright, 477 U.S. 399 (1986) ....................................................... 1, 2, 3, 4

Furman v. Georgia, 408 U.S. 238 (1972) .................................................................... 9

Hall v. Florida, 572 U.S. 701 (2014) ........................................................................... 5

McWilliams v. Dunn, 137 S. Ct. 1790 (2017) .......................................................... 4, 7

Roper v. Simmons, 543 U.S. 551 (2005) .................................................................. 7, 8

Shoop v. Hill, 139 S. Ct. 504 (2019) ............................................................................ 5

Tennard v. Dretke, 542 U.S. 274 (2004) ...................................................................... 8

White v. Woodall, 572 U.S. 415 (2014) .................................................................... 6, 7

Federal Court Opinions

Clark v. Quarterman, 457 F.3d 441 (5th Cir. 2006) ................................................... 9

Green v. Johnson, 515 F.3d 290 (4th Cir. 2008) ......................................................... 9

Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301 (11th Cir. 2015) ......................... 9

Pizzuto v. Yordy, 947 F.3d 510 (9th Cir. 2019) ................................................... 1, 5, 9

Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019) .................................................... 1, 9

State Cases

Commonwealth v. DeJesus, 58 A.3d 62 (Pa. 2012) .................................................. 6-7

Fuston v. State, 470 P.3d 306 (Okla. Crim. App. 2020) .............................................. 6

Pizzuto v. State, 202 P.3d 642 (Idaho 2008) .............................................................. 11

Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016) .............................................. 6

Smith v. State, 213 So. 3d 239 (Ala. 2007) .................................................................. 7

State v. Grell, 66 P.3d 1234 (Ariz. 2003) ..................................................................... 6

State Statutes

Idaho Code § 19-2515A .............................................................................................. 11

Rules

Supreme Court Rule 10(a) ........................................................................................... 9

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page ii

For nearly two decades, the Eighth Amendment has restricted states from

executing intellectually disabled offenders. See Atkins v. Virginia, 536 U.S. 304

(2002). In that time, this Court has never directly explained the extent of Atkins’

substantive definition of subaverage intellectual functioning. This case presents

that opportunity. In holding that there is a “‘substantive restriction’” on the power

of the states to execute intellectually disabled offenders, Atkins certainly

established some substantive limit on how that power can be exercised. Atkins, 536

U.S. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). The decision’s

language and logic made plain that those limits were drawn at intellectual

disability’s “‘essential feature,’” subaverage intellectual functioning, which includes

the standard error of measurement (“SEM”). Id. at 308 n.3 (quoting Diagnostic and

Statistical Manual of Mental Disorders 41 (4th ed. 2000)).

The decision below directly conflicts with that holding, as well as the decision

of another court of appeals on the same point. See Pizzuto v. Yordy, 947 F.3d 510,

526 (9th Cir. 2019) (per curiam) (“Pizzuto VI”), Smith v. Sharp, 935 F.3d 1064, 1077

(10th Cir. 2019), cert. denied, 2020 WL 3578740. These conflicts, which threaten

the consistent execution of sentences in capital jurisdictions, demand resolution,

and granting certiorari in this case would provide an ideal vehicle for resolving

them. See Petition for Writ of Certiorari (“Pet.”) at 21–22. As set forth below,

Respondent sidesteps these conflicts without resolving them. See Brief in

Opposition (“BIO”) at 9–24.

PETITIONER’S REPLY TO BRIEF IN OPPOSITION– Page 1

I.

Respondent does not resolve the Ninth Circuit’s conflict with Atkins.

Respondent asserts that there is no conflict between Atkins and the opinion

below. BIO at 13–20. But his assertion misreads (A) Atkins, (B) Atkins’ progeny,

and (C) the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

A.

Respondent misreads Atkins.

Respondent submits that Atkins left to the states the task of implementing

its restriction, which proves that the decision did not adopt a constitutional floor

based on specific definitions of intellectual disability, let alone the clinical

definitions for subaverage intellectual functioning. BIO at 14–15.

Respondent’s arguments fail. Respondent agrees that Atkins held that the

Eighth Amendment places “‘substantive’” limits on the power of the states to

execute intellectually disabled offenders. BIO at 12–13 (quoting Atkins, 536 U.S. at

321). In adding that those limits were “‘substantive,’” the Court offered more than a

warning. Atkins, 536 U.S. at 321 (quoting Ford, 477 U.S. at 405). The Court’s

holding staked out meaningful boundaries that could not be crossed without

violating the Eighth Amendment. See “Substantive Law,” Black’s Law Dictionary

(11th ed. 2019) (“The part of the law that creates, defines, and regulates the rights,

duties, and powers of parties.”); cf. Ford, 477 U.S. at 405 (holding that there is a

“substantive restriction” on executing insane offenders), id. at 417–18 (elaborating

that particular state procedures for determining insanity provided “inadequate

assurances of accuracy”).

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 2

But Atkins also described where those boundaries fell. States had to define

intellectual disability in accordance with the clinical definitions for subaverage

intellectual functioning, which includes the SEM. Atkins, 536 U.S. at 309 n.5 (IQ

scores “between 70 and 75”). Atkins directs readers to these definitions, noting that

these definitions constitute the “‘essential feature’” of intellectual disability. Supra

at 1. It defies logic that the holding would substantively limit the power of the

states to execute intellectually disabled offenders, but ignore the “essential feature”

relied upon by the Court.

The same logic is reflected in the rationale behind the decision. The Eighth

Amendment restricts states from executing intellectually disabled offenders,

because of an emerging national consensus about the “impairments” that

characterize intellectual disability. Atkins, 536 U.S. at 306–07. That rationale

would be incomprehensible if states could disregard the clinical definitions for

subaverage intellectual functioning, as it is the impairment’s “essential feature.”

In any event, Atkins expressly cabined the discretion that it left the states.

In so doing, Atkins further directed that the states had to define intellectual

disability in accordance with the clinical definitions for subaverage intellectual

functioning. In the central passage on this point, Atkins admonished that the states

had been left the task of devising “‘appropriate’” means to enforce its restriction.

Atkins, 536 U.S. at 317 (quoting Ford, 477 U.S. at 416–17). Ford, the model for that

task, had announced that the states had been left the limited task of devising

“procedural safeguards,” and that the states could run afoul of its “substantive

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 3

restriction” if the means chosen failed to provide relief for “substantial claims,” or if

the means chosen failed to provide “accuracy in the factfinding determination.”

Ford, 477 U.S. at 417. It further provided that the means chosen had to be

“conducive” to “professional judgments.” Id.

Atkins instructed the states that it followed the “approach in Ford.” Atkins,

536 U.S. at 317. Implementing its restriction, but ignoring the clinical definitions

for subaverage intellectual functioning, could not be conducive to relief for

substantive claims, accuracy in the factfinding determination, or professional

judgments. This Court held, and medical professionals agree, that intellectual

disability has an “essential feature,” which includes the SEM. Atkins, 536 U.S. at

308 n.3.

Respondent, alternatively, argues that Atkins could not have clearly

established that the states must define intellectual disability in accordance with the

clinical definitions for subaverage intellectual functioning, because, on this point,

there is “confusion in the lower courts.” BIO at 20.

First of all, the existence of confusion in the lower courts is exactly why

certiorari review is in order. Furthermore, the question of whether a rule is clearly

established is, like any legal matter, one that courts can get wrong. See, e.g.,

McWilliams v. Dunn, 137 S. Ct. 1790, 1799–1801 (2017) (reversing a circuit panel

for wrongly concluding that the state courts did not violate clearly established

precedent). If the mere existence of differing answers in the lower courts foreclosed

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 4

certiorari review, then discrepancies on important issues—like the one presented

here—would never be resolved.

B.

Respondent misreads Atkins’ progeny.

Respondent argues that Atkins’ progeny confirm that the Ninth Circuit is not

in conflict with the opinion because Shoop v. Hill, 139 S. Ct. 504 (2019), and Bobby

v. Bies, 556 U.S. 825 (2009), confirmed that Atkins provided no “‘comprehensive’” or

“‘definitive’” guides to intellectual disability. BIO at 15, 18. However, the Ninth

Circuit went well beyond Respondent’s position, concluding that Atkins provided no

guidance at all. Pizzuto VI, 947 F.3d at 526.

Respondent does not seriously dispute this distinction, but instead contends

that it makes no difference. BIO at 18. The distinction, in fact, makes all the

difference. The central point of the petition is that Atkins clearly established that

the states must define intellectual disability in accordance with the clinical

definitions for subaverage intellectual functioning and not that the states do so in

accordance with a “comprehensive” or “definitive” definition, while the Ninth

Circuit concluded that Atkins said nothing about this and therefore the states need

not define intellectual disability in accordance with the clinical definitions at all.

Pet. at 12–18; Atkins, 536 U.S. at 308 n.3, 309 n.5, 318, 321; Pizzuto VI, 947 F.3d at

526. That is a major part of the very conflict that demands certiorari intervention.

In arguing that Hall v. Florida, 572 U.S. 701 (2014), established the

applicability of the SEM, BIO at 15-16, Respondent ignores Hall’s teaching and

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 5

conjures a strawman. Respondent argues that under AEDPA Mr. Pizzuto cannot

benefit from Hall, which postdated the state court decision. BIO at 20.

But Mr. Pizzuto relies on Hall only for the proposition that, in stating that

the clinical definitions “were a fundamental premise of Atkins,” Pet. at 17, it

resolved what Atkins had already clearly established: that the states must define

intellectual disability in accordance with the clinical definitions for subaverage

intellectual functioning, including the SEM.

C.

Respondent misreads AEDPA.

Respondent contends, lastly, that Atkins could not have clearly established

that the states must define intellectual disability in accordance with the clinical

definitions for subaverage intellectual functioning because this would “‘extend’” the

decision “beyond its holding.” BIO at 12, 19 (quoting White v. Woodall, 572 U.S.

415, 425–26 (2014)). As an initial matter, the disagreement about Atkins’

significance demands resolution regardless of AEDPA. At least three state courts—

which are not bound by AEDPA—share the Tenth Circuit’s basic reading of the

case. See Reeves v. State, 226 So. 3d 711, 727 n.7 (Ala. Crim. App. 2016) (“We view

Hall, not as a new rule of constitutional law, but simply as an application of

existing law, i.e., Atkins, to a specific set of facts.”); accord Fuston v. State, 470 P.3d

306, 316–17 (Okla. Crim. App. 2020); State v. Grell, 66 P.3d 1234, 1238 (Ariz. 2003)

(“Atkins provided some direction” for determining mental retardation, citing the

clinical definitions and “recogniz[ing] that an IQ below 70 to 75 indicates

subaverage intellectual functioning”). Indeed, there is conflict among the state

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 6

courts on that question. See Smith v. State, 213 So. 3d 239, 247 (Ala. 2007) (Atkins

“set forth some clinical definitions…as examples” but “left the ultimate

determination” of mental retardation to the individual states); Commonwealth v.

DeJesus, 58 A.3d 62, 85 (Pa. 2012) (“[T]he High Court did not command that the

definitions and model it cited were required to satisfy the Eighth Amendment.”).

Simply put, Atkins is a seminal case, and its meaning should be uniform across the

country, no matter what constraints apply in federal habeas. See McWilliams, 137

S. Ct. at 1804–07 (Alito, J., dissenting) (emphasizing that certiorari was granted on

a question about the scope of this Court’s clearly established law under AEDPA

when state and federal judges had competing interpretations).

In any event, on AEDPA, Respondent misreads Woodall, which precludes

relief “if a habeas court must extend a rationale before it can apply to the facts at

hand.” Woodall, 572 U.S. at 426. Mr. Pizzuto is not seeking to extend the rationale

of Atkins; he seeks to apply its unambiguous holding regarding the substance of the

clinical definition it clearly established, the SEM’s effect on a given IQ score, to the

facts in his case. Section 2254(d)(1) does not require an “identical factual pattern

before a legal rule must be applied.” Id. at 427 (internal quotation omitted).

Here, the relevant rationale was more than clear at the time that the state

court rendered its decision. The Eighth Amendment restricts states from executing

intellectually disabled offenders because, Atkins reasoned, intellectually disabled

offenders have impairments that undermine the penological purposes of capital

punishment and the reliability and fairness of capital proceedings. Atkins, 536 U.S.

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 7

at 306–07; accord Roper v. Simmons, 543 U.S. 551, 563–64 (2005); Tennard v.

Dretke, 542 U.S. 274, 287 (2004).

One need not extend that rationale to conclude that Atkins adopted

substantive limits based on the clinical definitions for subaverage intellectual

functioning. Subaverage intellectual functioning, per the clinical definitions, is the

“‘essential feature’” of intellectual disability. Supra at 3-4.

Respondent, perhaps sensing that Atkins’ rationale is not amenable to

another reasonable interpretation, serially mis-inserts into those definitions the

“Flynn Effect,” and contends that Atkins did not clearly establish that the states

must adopt the “Flynn Effect.” See BIO at 9, 14, 15, 16, 17, 18, 20. This, again, is a

strawman. Mr. Pizzuto does not contend that Atkins clearly established that the

states must adopt the “Flynn Effect.” See generally Pet. Unlike with the “Flynn

Effect,” Atkins expressly addressed the SEM and therefore clearly established that

subaverage intelligence can involve an IQ as high as 75.

II.

Respondent sidesteps, but does not resolve, the Ninth and Tenth

Circuit’s split over Atkins.

Mr. Pizzuto seeks a writ of certiorari for the additional reason that the Ninth

Circuit is in direct conflict with the Tenth Circuit over the meaning of Atkins. Pet.

at 18–21.

Respondent argues that there is no conflict between the Ninth and Tenth

Circuits’ decisions, because the Tenth Circuit “did not mandate adoption” of the

“entire diagnostic framework.” BIO at 20. Rather, the Tenth Circuit only

concluded, in Respondent’s view, “‘that intellectual disability must be assessed, at

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 8

least in part, under the existing clinical definitions.’” Id. (quoting Smith, 935 F.3d

at 1077) (Respondent’s emphasis).

Nevertheless, the Ninth and Tenth Circuits’ decisions still conflict, because

the Ninth Circuit concluded that intellectual disability need not be assessed at all

under the existing clinical definitions. Pizzuto VI, 947 F.3d at 526. And Smith’s

caveat hardly undermines the existence of the conflict when the Tenth Circuit there

understood Atkins as embracing the precise element of the clinical standards that

the Ninth Circuit below refused to apply: the SEM.

This conflict is larger than the Ninth and Tenth Circuits. Several other

circuits have taken the Ninth’s side. See, e.g., Kilgore v. Sec’y, Fla. Dep’t of Corr.,

805 F.3d 1301, 1312 (11th Cir. 2015); Clark v. Quarterman, 457 F.3d 441, 444–45

(5th Cir. 2006); Green v. Johnson, 515 F.3d 290, 300 n.2 (4th Cir. 2008). This

conflict has sufficiently percolated and it must be resolved. See Sup. Ct. R. 10(a). It

is fundamental that “the Eighth and Fourteenth Amendments cannot tolerate the

infliction of a sentence of death under legal systems that permit this unique penalty

to be so wantonly and so freakishly imposed.” Furman v. Georgia, 408 U.S. 238, 310

(1972) (Stewart, J., concurring). The geography of an intellectually disabled inmate

plainly is a wanton and freakish basis for the imposition of our legal system’s “most

severe punishment.” Roper, 543 U.S. at 568.

III.

Respondent sidesteps, but does not resolve, the state court’s

unreasonable determination of fact.

A final reason to grant certiorari is to review the Ninth Circuit’s finding that

the state court made no unreasonable determination of fact. Pet. at 22–29.

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 9

Respondent maintains that the state court’s factual determinations were not

unreasonable. BIO at 25–28. Respondent’s arguments are insubstantial.

A.

Respondent overlooks that IQ decline, without more, does not

affect pre-18 onset.

Respondent insists that the state court made no unreasonable determination

of fact, because it was “objectively reasonable” for the court to infer that Mr.

Pizzuto’s IQ score might have “declined after his eighteenth birthday.” BIO at 26–

27. Even if that were true, the state court still made an unreasonable

determination of fact when it relied on the inference to conclude that his intellectual

disability could not have manifested pre-18. Pet. at 27.

Respondent contends that the state court could have inferred that Mr.

Pizzuto’s IQ score was not 75 or lower before the age of 18, because it might have

declined from somewhere above an IQ of 75 to the 72 that was in the record, based

upon the fact that Mr. Pizzuto had suffered from traumatic brain injuries, drug use,

and epilepsy. BIO at 26–27. That inference has no basis in the record, and it is

logically fallacious. No expert ever suggested that Mr. Pizzuto’s IQ score could or

would have declined from trauma, drugs, or epilepsy, and to infer that it could have

declined so far that his pre-18 IQ must have exceeded the range for subaverage

intellectual functioning is to speculate wildly. Pet. at 25–27.

Respondent attempts to salvage the state court’s reasoning, suggesting that

there was an alternative reasonable basis for its finding that Mr. Pizzuto had not

made even a prima facie showing that his intellectual disability manifested before

he turned age 18. BIO at 27. Mr. Pizzuto’s attorneys, he alleges, conceded that no

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 10

expert had ever opined that he met the statutory standard for intellectual

disability. BIO at 27. Contrary to Respondent’s belief, Mr. Pizzuto’s expert, in fact,

did state that he “likely meets the standard” for “defendants who are mentally

retarded.” Pizzuto v. State, 202 P.3d 642, 653 (Idaho 2008) (“Pizzuto V”). See App.

at 122. The state court itself acknowledged this statement, but then dismissed it,

on the grounds that the statement had not referred to Mr. Pizzuto’s intellectual

disability before he turned 18, but instead referred to his “present condition.”

Pizzuto V, 202 P.3d at 653. This, too, was objectively unreasonable. The state

statutory definition, I.C. § 19-2515A(1)(a), enumerated the requirement that onset

of the disability occur pre-18, as required for the protection of intellectually disabled

individuals under the Eighth Amendment, Atkins, 536 U.S. at 308 n.3. In stating

that Mr. Pizzuto likely met “the standard recently enacted in Idaho Code § 192515A,” his expert declared that Mr. Pizzuto met the standard before turning 18.

App. at 122.

B.

Respondent overlooks the Ninth Circuit’s failure to follow

Brumfield.

In opposition to the certiorari petition, Respondent argues that Brumfield is

inapposite, because the habeas petitioner there “was in a far different procedural

posture.” BIO at 24.

To withstand summary dismissal, Mr. Pizzuto needed to “present evidence

establishing a prima facie case.” Pizzuto V, 202 P.3d at 650 (internal quotation

marks omitted). Brumfield made clear that a petitioner’s IQ score, coupled with

“intellectual shortcomings as a child,” comprises “ample evidence” that the

PETITIONER’S REPLY TO BRIEF IN OPPOSITION – Page 11

petitioner’s intellectual disability “manifested before adulthood.” Brumfield v. Cain,

576 U.S. 305, 323 (2015).

As in Brumfield, Mr. Pizzuto presented an IQ score consistent with

subaverage intellectual functioning, as well as evidence that he suffered from

substantial intellectual shortcomings as a child, including the fact that he failed

multiple grades and was assessed to be many years behind his peer group

developmentally. See Pet. at 23–24. The relevant facts are directly on point.

IV.

Conclusion.

The Court should grant the petition for a writ of certiorari and afford plenary

review or, in the alternative, grant a per curiam reversal.

Respectfully submitted this 6th day of October 2020.

Respectfully submitted,

/s/Deborah A. Czuba

Deborah A. Czuba*

Bruce D. Livingston

Jonah J. Horwitz

Capital Habeas Unit

Federal Defender Services of Idaho

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Telephone: 208-331-5530

Facsimile: 208-331-5559

*Counsel of Record

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