Petition for Writ of Certiorari — Gerald Ross Pizzuto, Jr., Petitioner v. Idaho

IN THE

SUPREME COURT OF THE UNITED STATES

GERALD ROSS PIZZUTO, JR.,

Petitioner,

v.

STATE OF IDAHO,

Respondent.

On Writ of Certiorari to the

Idaho Supreme Court

PETITION FOR WRIT OF CERTIORARI

Jonah J. Horwitz*

FEDERAL DEFENDER SERVICES OF IDAHO, INC.

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Jonah_Horwitz@fd.org

208-331-5530

*Counsel of Record

*CAPITAL CASE*

QUESTION PRESENTED

Did Atkins v. Virginia, 536 U.S. 304 (2002), require the use of clinical

standards for the determination of sub-average intellectual functioning?

PETITION FOR WRIT OF CERTIORARI – Page i

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings below are all listed in the caption.

RELATED PROCEEDINGS

Idaho County District Court

Case No. 22075

State v. Pizzuto

Judgment and Sentence entered, May 27, 1986

Idaho County District Court

Case No. 23001

Pizzuto v. State

Post-conviction relief denied, Apr. 15, 1988

Idaho Supreme Court

Case Nos. 16489 and 17534

State v. Pizzuto, 810 P.2d 680 (Idaho 1991)

Conviction, sentence and denial of post-conviction relief affirmed, Jan. 15, 1991

Supreme Court of the United States

Case No. 91-5965

Pizzuto v. Idaho, 503 U.S. 908 (1992)

Cert. denied, Mar. 2, 1992

Idaho County District Court

Case No. 23001

Pizzuto v. State

Post-conviction relief dismissed, Sept. 29, 1994

Idaho Supreme Court

Case No. 21637

Pizzuto v. State, 903 P.2d 58 (Idaho 1995)

Appeal dismissed, Aug. 3, 1995

Idaho County District Court

Case No. CV-1994-961

Pizzuto v. State

Post-conviction relief denied, Mar. 19, 1997

PETITION FOR WRIT OF CERTIORARI – Page ii

United States District Court, District of Idaho

Case No. CV-92-00241-S-AAM

Pizzuto v. Arave

Habeas corpus denied, Apr. 7, 1997

Idaho County District Court

Case No. CV-1997-1837

Pizzuto v. State

Post-conviction relief denied, May 26, 1998

Idaho Supreme Court

Case No. 24802

Pizzuto v. State, 10 P.3d 742 (Idaho 2000)

Denial of post-conviction relief affirmed, Sept. 6, 2000

United States Court of Appeals, Ninth Circuit

Case No. 97-99017

Pizzuto v. Arave, 280 F.3d 949 (9th Cir. 2002)

Denial of habeas corpus affirmed, Feb. 6, 2002

United States Court of Appeals, Ninth Circuit

Case No. 01-71257

Pizzuto v. Fisher

Permission to file second habeas petition denied, Feb. 14, 2002

Supreme Court of the United States

Case No. 04-10640

Pizzuto v. Fisher, 546 U.S. 976 (2005)

Cert. denied, Oct. 31, 2005

Idaho County District Court

Case No. CV-2002-33907

Pizzuto v. State

Post-conviction relief denied, Dec. 16, 2005

Idaho County District Court

Case No. CV-2003-34748

Pizzuto v. State

Post-conviction relief dismissed, Dec. 16, 2005

United States Court of Appeals, Ninth Circuit

Case No. 05-77184

Pizzuto v. Hardison

Permission to file successive habeas petition granted, May 16, 2006

PETITION FOR WRIT OF CERTIORARI – Page iii

Idaho Supreme Court

Case Nos. 32677 and 32678

Idaho v. Pizzuto

Appeal dismissed, Dec. 28, 2006

Ada County District Court

Case No. CV-2006-5139

Pizzuto v. State

Post-conviction relief denied, Oct. 31, 2007

Idaho Supreme Court

Case No. 32679

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

Denial of post-conviction relief affirmed, Feb. 22, 2008

Supreme Court of the United States

Case No. 06-11010

Pizzuto v. Idaho, 552 U.S. 1227 (2008)

Cert. granted, judgment vacated, and remanded, Feb. 25, 2008

Idaho Supreme Court

Case No. 35187

Rhoades et al. v. State, 233 P.3d 61 (Idaho 2010)

Denial of post-conviction relief affirmed, Mar. 17, 2010

Idaho Supreme Court

Case No. 34845

Pizzuto v. State, 233 P.3d 86 (Idaho 2010)

Denial of post-conviction relief affirmed, Mar. 19, 2010

Supreme Court of the United States

Case No. 10-6377

Pizzuto v. Idaho, 562 U.S. 1182 (2011)

Cert. denied, Jan.18, 2011

Supreme Court of the United States

Case No. 10-7831

Rhoades et al. v. Idaho, 562 U.S. 1258 (2011)

Cert. denied, Feb. 28, 2011

PETITION FOR WRIT OF CERTIORARI – Page iv

United States District Court, District of Idaho

Case No. 1:05-cv-00516-BLW

Pizzuto v. Blades

Habeas corpus denied, Jan. 10, 2012

United States Court of Appeals, Ninth Circuit

Case No. 11-70623

Pizzuto v. Blades, 673 F.3d 1003 (9th Cir. 2012)

Permission to file successive habeas petition denied, Mar. 8, 2012

United States District Court, District of Idaho

Case No. 1:92-cv-00241-BLW

Pizzuto v. Ramirez

Rule 60(b) denied, Mar. 22, 2013

United States Court of Appeals, Ninth Circuit

Case No. 12-99002

Pizzuto v. Blades, 729 F.3d 1211 (9th Cir. 2013)

Denial of habeas corpus affirmed, Sept. 9, 2013

United States Court of Appeals, Ninth Circuit

Case No. 12-99002

Pizzuto v. Blades, 758 F.3d 1178 (9th Cir. 2014)

Withdrawing opinion, vacating district court opinion and remanding, July 15, 2014

United States Court of Appeals, Ninth Circuit

Case No. 13-35443

Pizzuto v. Ramirez, 783 F.3d 1171 (9th Cir. 2015)

Denial of Rule 60(b) affirmed, Apr. 22, 2015

United States District Court, District of Idaho

Case No. 1:05-cv-00516-BLW

Pizzuto v. Blades

Habeas corpus denied on remand, Nov. 28, 2016

United States Court of Appeals, Ninth Circuit

Case No. 16-36082

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

Denial of habeas corpus affirmed, Dec. 31, 2019

Idaho County District Court

Case No. CV-2003-34748

Pizzuto v. State

Rule 60(b) denied, Jan. 6, 2020

PETITION FOR WRIT OF CERTIORARI – Page v

Idaho Supreme Court

Case No. 32679

Pizzuto v. State

Motion to Recall Remittitur denied, May 14, 2020

Idaho Supreme Court

Case No. 47709

Pizzuto v. State, 484 P.3d 823 (Idaho 2021)

Denial of Rule 60(b) relief affirmed, Feb. 3, 2021

PETITION FOR WRIT OF CERTIORARI – Page vi

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS .............................................................................................. vii

APPENDICES ............................................................................................................. viii

TABLE OF AUTHORITIES ......................................................................................... ix

OPINION BELOW......................................................................................................... 1

JURISIDICTIONAL STATEMENT .............................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

STATE STATUTES INVOLVED .................................................................................. 1

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 5

I. There is a conflict between lower courts on whether Atkins adopted the

clinical standards regarding the SEM. ...................................................................... 5

II. The conflict implicates an important issue of national concern. ....................... 7

III. This case is an ideal vehicle for resolving the conflict. .................................... 10

IV. The Idaho Supreme Court got it wrong. ........................................................... 12

CONCLUSION............................................................................................................. 14

PETITION FOR WRIT OF CERTIORARI – Page vii

APPENDICES

APPENDIX A:

Opinion, Feb. 3, 2021, Idaho Supreme Court

Docket No. 47709-2020………………….....................App. 001–022

APPENDIX B:

Order Denying Petition for Rehearing,

April 29, 2021, Idaho Supreme Court Docket

No. 47709-2020.….………………………………………App. 023

APPENDIX C:

Petition for Post-Conviction Relief Raising

Atkins v. Virginia, June 19, 2003, Idaho County

District Court No. CV34748…………………………App. 024–033

PETITION FOR WRIT OF CERTIORARI – Page viii

TABLE OF AUTHORITIES

Supreme Court Opinions

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................ 2, 12

Bobby v. Bies, 556 U.S. 825 (2009) ............................................................................ 13

Brumfield v. Cain, 576 U.S. 305 (2015) ...................................................................... 9

Chaidez v. United States, 568 U.S. 342 (2013) ........................................................... 7

Dunn v. Madison, 138 S. Ct. 9 (2017) ....................................................................... 11

Hall v. Florida, 572 U.S. 701 (2014) ................................................................. 4, 9, 12

Harrington v. Richter, 562 U.S. 86 (2011) ........................................................... 10-11

Lambrix v. Singletary, 520 U.S. 518 (1997) ................................................................ 7

Michigan v. Long, 463 U.S. 1032 (1983) ................................................................... 10

Moore v. Texas, 137 S. Ct. 1039 (2017) ....................................................................... 9

Moore v. Texas, 139 S. Ct. 666 (2019) ......................................................................... 9

Peede v. Jones, 138 S. Ct. 2360 (2018) ...................................................................... 11

Shoop v. Hill, 139 S. Ct. 504 (2019) ...................................................................... 9, 13

Truesdale v. Aiken, 480 U.S. 527 (1987) ...................................................................... 7

Federal Court Opinions

Fulks v. Watson, 4 F.4th 586 (7th Cir. 2021) .......................................................... 5, 8

In re Henry, 757 F.3d 1151 (11th Cir. 2014) .................................................... 5, 6, 7-8

In re Payne, 722 F. App’x 534 (6th Cir. 2018) ............................................................. 8

Pizzuto v. Yordy, 947 F.3d 510 (9th Cir. 2019) ................................................... 3, 4, 6

Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019) .............................................. 5, 8, 11

Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014) ...................................................... 5

Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017) ........................................................ 8

Federal Constitutional Provisions

U.S. CONST. amend. VIII ........................................................................................... 1

Federal Statutes

28 U.S.C. § 1254 ........................................................................................................... 1

28 U.S.C. § 2244 ........................................................................................................... 8

PETITION FOR WRIT OF CERTIORARI – Page ix

State Cases

Fuston v. State, 470 P.3d 306 (Okla. Crim. App. 2020) .............................................. 5

Hall v. State, 201 So.3d 628 (Fla. 2016) ...................................................................... 9

Phillips v. State, 299 So.3d 1013 (Fla. 2020) .............................................................. 6

Pizzuto v. State of Idaho, 484 P.3d 823 (Idaho 2021) ................................................. 1

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

Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016) ........................................... 5-6

State v. Pizzuto, 810 P.2d 680 (Idaho 1991) ................................................................ 2

White v. Commonwealth, 500 S.W.3d 208 (Ky. 2016) ................................................ 6

State Statutes

Idaho Code § 19-2515A ........................................................................................ 1, 2, 3

Secondary Sources

Alexander H. Updegrove et al., Intellectual Disability in Capital Cases: Adjusting

State Statutes After Moore v. Texas, 32 Notre Dame J.L. Ethics & Pub. Pol’y 527

(2018) ............................................................................................................................ 7

Z. Payvand Ahdout, Direct Collateral Review,

121 Colum. L. Rev. 159 (2021) ................................................................................... 14

PETITION FOR WRIT OF CERTIORARI – Page x

Petitioner Gerald Ross Pizzuto respectfully submits this petition for a writ of

certiorari to review the judgment of the Idaho Supreme Court.

OPINION BELOW

A copy of the opinion below is attached as Appendix A, at App. 1–22, and is

available at Pizzuto v. State of Idaho, 484 P.3d 823 (Idaho 2021). 1

JURISIDICTIONAL STATEMENT

On February 3, 2021, the Idaho Supreme Court issued a decision. The court

denied Mr. Pizzuto’s petition for rehearing on April 29, 2021. App. 23. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eighth Amendment to the United States Constitution,

which reads in pertinent part:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

U.S. CONST. amend. VIII.

STATE STATUTES INVOLVED

This petition involves Idaho Code § 19-2515A, which is entitled “Imposition

of death penalty upon mentally retarded person prohibited,” and provides:

(1) As used in this section:

(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

In this response, unless otherwise noted, all internal quotation marks and citations are omitted,

and all emphasis is added.

1

PETITION FOR WRIT OF CERTIORARI – Page 1

following skill areas: communication, self-care, home living,

social or interpersonal skills, use of community resources, selfdirection, 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.

***

(3) If the court finds by a preponderance of the evidence that the

defendant is mentally retarded, the death penalty shall not be imposed.

***

(6) Any remedy available by post-conviction procedure or habeas corpus

shall be pursued according to the procedures and time limits set forth in

section 19-2719, Idaho Code.

STATEMENT OF THE CASE

Mr. Pizzuto was convicted of two counts of first-degree murder and sentenced

to death in 1986. State v. Pizzuto, 810 P.2d 680, 687 (Idaho 1991). Since then, his

case has been engaged in continual litigation, covering numerous proceedings and

issues. Here, he will only set forth the events relevant to the question presented.

The question presented here concerns intellectual disability. To understand

the certiorari petition, including the statement of the case, some background on

intellectual disability is necessary. Intellectual disability is comprised of three

features: 1) “subaverage intellectual functioning”; 2) “significant limitations in

adaptive skills”; and 3) manifestation “before age 18.” See Atkins, 536 U.S. at 318;

Idaho Code § 19-2515A(1)(a). IQ scores go to the first prong of this three-prong test.

See Atkins, 536 U.S. at 309 n.5 (“an IQ between 70 and 75 or lower … is typically

PETITION FOR WRIT OF CERTIORARI – Page 2

considered the cutoff IQ score for the intellectual function prong of the mental

retardation definition”); Idaho Code § 19-2515A(1)(b) (defining subaverage

intellectual functioning for purposes of Idaho law as an IQ “of seventy (70) or

below”).

In 2003, Mr. Pizzuto sought post-conviction relief based on this Court’s

decision in Atkins. App. 24. To establish his intellectual disability, Mr. Pizzuto

expressly noted his verbal IQ score of seventy-two, “which is within the plus or

minus 5 point range, characterizing him as having significantly subaverage

intellectual functioning.” App. 28. In 2005, without granting an evidentiary

hearing or additional testing, the state district court summarily dismissed the

petition.

In 2008, the Idaho Supreme Court affirmed the post-conviction court’s

dismissal of the petition. Pizzuto v. State, 202 P.3d 642, 657 (Idaho 2008). The

court reasoned that that the standard error of measurement (“SEM”) for IQ scores

of “plus or minus five points” did not apply to Mr. Pizzuto’s seventy-two verbal IQ

score, because “the legislature did not require the IQ score be within five points of

70 or below. It required that it be 70 or below.” Id. at 651.

After a series of proceedings whose vicissitudes are not germane here, the

Ninth Circuit ultimately denied Mr. Pizzuto’s Atkins claim. See Pizzuto v. Yordy,

947 F.3d 510 (9th Cir. 2019) (per curiam), cert. denied, 141 S. Ct. 661 (2020). The

Ninth Circuit recognized that the Idaho Supreme Court’s adjudication of the claim

“was inconsistent with the clinical definitions in place at the time of the state

PETITION FOR WRIT OF CERTIORARI – Page 3

court’s decision,” in large part because of its confusion about the SEM. See id. at

525. Nevertheless, the Ninth Circuit determined that relief was barred under 28

U.S.C. § 2254(d) because the state court’s error was only prohibited by Hall v.

Florida, 572 U.S. 701 (2014), which was unborn at the time of the 2008 opinion, and

not by Atkins itself. Id. at 526–27. Although it was powerless to grant relief, the

Ninth Circuit emphasized that its decision did “not preclude the Idaho judiciary

from reconsidering” Mr. Pizzuto’s Atkins claim given the tension between the state

supreme court’s analysis and the science that existed at the time, as well as the law

as it later developed. Id. at 534–35.

Consistent with the Ninth Circuit’s suggestion, and based on its statements,

Mr. Pizzuto filed a motion to reopen his Atkins post-conviction claim in the state

district court under Idaho Rule of Civil Procedure 60(b). App. 2. The district judge

denied the motion and the Idaho Supreme Court affirmed. App. 2. In pertinent

part, the Idaho Supreme Court reasoned that its 2008 opinion was correctly decided

under the law in place at the time. App. 7–10. As the court explained, it was true

in 2008—as its earlier opinion stated—that “the legislature did not require that the

IQ score be within five points of 70 or below because of the standard error of

measurement.” App. 9. “Rather, the legislature required an IQ score of 70 or

below.” Id. There was nothing wrong with that reasoning in 2008, the court

continued, because “Atkins did not adopt specific clinical standards.” Id..

The court later denied a timely petition for rehearing, App. 23, and Mr.

Pizzuto now seeks certiorari review here.

PETITION FOR WRIT OF CERTIORARI – Page 4

REASONS FOR GRANTING THE WRIT

I.

There is a conflict between lower courts on whether Atkins adopted

the clinical standards regarding the SEM.

There is a clear and entrenched split between lower courts on whether Atkins

approved of the clinical standards concerning sub-average intellectual functioning,

including the SEM.

On one side of that line there are several decisions, from both state and

federal courts around the country, holding that Atkins did indeed make the clinical

IQ standards part of Eighth Amendment precedent, and that Hall therefore did not

change the law but merely confirmed what it had already been. See Fulks v.

Watson, 4 F.4th 586, 592 (7th Cir. 2021) (describing the continuity in the law

between Atkins and subsequent cases, including Hall; observing that Atkins “did

rely on clinical definitions;” and categorizing later decisions such as Hall as

primarily “course corrections to state-court applications of Atkins”); Smith v. Sharp,

935 F.3d 1064, 1077, 1080 (10th Cir. 2019) (evaluating several IQ scores, including

a seventy-three, with an eye to “Atkins’ statement that a score of 75 or lower will

generally satisfy the intellectual functioning prong” because “[t]he Supreme Court

in Atkins accepted clinical definitions for the meaning of the term mentally

retarded”); Van Tran v. Colson, 764 F.3d 594, 612 (6th Cir. 2014) (noting that Hall

“clarified the minimum Atkins standard”); Fuston v. State, 470 P.3d 306, 316 (Okla.

Crim. App. 2020), cert. denied, 141 S. Ct. 1400 (2021) (summarizing Hall as having

clarified that “failing to take into account the SEM and setting a strict cutoff at 70 .

. . misconstrues Atkins”); Reeves v. State, 226 So. 3d 711, 727 n.7 (Ala. Crim. App.

PETITION FOR WRIT OF CERTIORARI – Page 5

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.”); see also In re

Henry, 757 F.3d 1151, 1164–65 (11th Cir. 2014) (Martin, J., dissenting) (“It occurs

to me, therefore, that the decision in Hall did not announce a new rule insofar as

the result was dictated by Atkins.”).

By contrast, another set of courts views Hall and its championing of the SEM

as an expansion of the law beyond what was accomplished by Atkins. See Pizzuto,

947 F.3d at 526–27 (observing that “[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” the SEM, because that was only confirmed by Hall);

In re Henry, 757 F.3d at 1159 (“Nothing in Atkins dictated or compelled the

Supreme Court in Hall to limit the states’ previously recognized power to set an IQ

score of 70 as a hard cutoff.”); Phillips v. State, 299 So. 3d 1013, 1019 (Fla. 2020),

cert. denied, --- S. Ct. ----, 2021 WL 2044590 (2021) (remarking that “Hall

establishes a new rule of law”); White v. Commonwealth, 500 S.W.3d 208, 214–15

(Ky. 2016), abrogated on other grounds by Woodall v. Commonwealth, 563 S.W.3d 1,

6 (Ky. 2018) (deeming Hall a “sea change” in the law that qualified as a new rule).

The decisions listed above disagree with one another on a question only this

Court can answer: did Atkins incorporate the SEM into Eighth Amendment

intellectual-disability law or not? Lower courts have issued detailed opinions on

either side of the equation. Seven years after Hall, the division is not going

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anywhere. There is no reason to wait for further percolation, and the Court should

intervene now to settle the dispute.

II.

The conflict implicates an important issue of national concern.

The difference of opinion within the lower courts on the import of Atkins is

not a minor, technical squabble, but a serious matter affecting the outcome of large

numbers of life-and-death cases. More than 350 death-row inmates raised

intellectual-disability claims in the period between the issuance of Atkins and Hall.

See Alexander H. Updegrove et al., Intellectual Disability in Capital Cases:

Adjusting State Statutes After Moore v. Texas, 32 Notre Dame J.L. Ethics & Pub.

Pol’y 527, 545 n.110 (2018).

For this substantial number of prisoners, the distinction between what

Atkins held and what Hall held, or the absence of a distinction, is critical. It could

impact a number of different issues. Perhaps most significantly, the interplay

between the cases sheds light on whether Hall applies retroactively, because

retroactivity analysis turns in large part on whether a “new rule” is involved. See,

e.g., Chaidez v. United States, 568 U.S. 342, 347–54 (2013) (providing an example of

how an inquiry into retroactivity implicates the question of whether the Supreme

Court rule at issue is new or not); Lambrix v. Singletary, 520 U.S. 518, 527–29

(1997) (same); Truesdale v. Aiken, 480 U.S. 527, 528 (1987) (Powell, J., dissenting)

(same). Four of the cases listed above in the description of the split consider the

relationship between Atkins and Hall as part of an inquiry into retroactivity:

Reeves, Henry, Phillips, and White. Indeed, there is a division of authority on the

PETITION FOR WRIT OF CERTIORARI – Page 7

retroactivity question itself, with Reeves and White applying Hall to older cases and

Henry and Phillips refusing to. See also In re Henry, 757 F.3d at 1167 (Martin, J.,

dissenting) (contending that the fact this Court issued Hall in a post-conviction case

indicates that it is to be applied retroactively). That is a ground for granting

certiorari standing alone. 2

In addition, the question can influence cases in other important ways. For

instance, the nature of what Atkins held, versus Hall, is germane in habeas

proceedings, which raise the question of what was “clearly established” by this

Court’s cases at the time the state judiciary ruled on the claim, as in Mr. Pizzuto’s

own federal action and in Smith. See supra at 4, 5. The question also has

ramifications for savings clause cases brought under 28 U.S.C. § 2241, where courts

must consider whether a federal inmate had a remedy for an intellectual-disability

claim under an earlier legal regime. See Fulks, 4 F.4th at 592. Or the issue could

arise in a more unusual posture. In this case itself, for instance, the question is at

issue mainly because the timeliness of Mr. Pizzuto’s motion to amend judgment

2 Cases dealing with the retroactivity vel non of rules on federal habeas review often

carry their own procedural wrinkles which render them imperfect vehicles for

developing more general principles through certiorari. See 28 U.S.C. § 2244(b)(2)(A)

(limiting consideration of successive petitions raising new issues to new rules of law

“made retroactive to cases on collateral review by the Supreme Court”). Such cases

are relevant here, because they can turn—like Henry, supra—on whether the rule

at issue is new or not. Plus, the existence of such cases regarding Hall indicates

that the question of its novelty has fully percolated in the circuit courts, either in

the § 2244(b)(2)(A) setting or otherwise, and there is consequently no need for the

Court to wait longer before taking the matter up. Aside from the cases cited

already, see In re Payne, 722 F. App’x 534, 538–39 (6th Cir. 2018); Williams v.

Kelley, 858 F.3d 464, 473–74 (8th Cir. 2017).

PETITION FOR WRIT OF CERTIORARI – Page 8

hinges on whether he should have filed it in the wake of Hall—i.e., whether Hall

reshaped the legal landscape or not.

No doubt, there are still other ways in which the precise meaning of Atkins’

allusions to the clinical standards and the SEM will surface, given the large pool of

death-row inmates with intellectual-disability claims whose sentences were final

before Hall, and given the volume of litigation generated by every capital case.

Fewer than twenty years have elapsed since Atkins, and the Court has already

dived back into intellectual disability and the death penalty a number of times,

demonstrating how significant and complex an area of law it is. See Moore v. Texas,

139 S. Ct. 666 (2019) (per curiam); Shoop v. Hill, 139 S. Ct. 504 (2019) (per curiam);

Moore v. Texas, 137 S. Ct. 1039 (2017); Brumfield v. Cain, 576 U.S. 305 (2015); Hall,

572 U.S. 701. Clearly, the intellectual-disability exemption from the death penalty

is a subject that has necessitated—and will continue to necessitate—the Court’s

attention.

As intellectual-disability issues continue to come up and land on both sides of

the conflict, the confusion in the lower courts over where Atkins ends and where

Hall starts will continue to generate uncertainty and inefficiency, consuming the

resources of litigants and courts, as well as leading to inconsistent results. Such

inconsistency is especially problematic when it comes to who lives and who dies. By

way of example, Freddie Lee Hall had a seventy-two IQ, and a death sentence that

became final prior to Atkins, and he obtained penalty-phase relief and a life term.

See Hall v. State, 201 So.3d 628, 631, 633, 638 (Fla. 2016). Jerry Pizzuto had a

PETITION FOR WRIT OF CERTIORARI – Page 9

seventy-two IQ, and a death sentence that became final prior to Atkins, and the

State of Idaho is moving rapidly towards his execution without any judicial

intervention to stop it. To avoid inequality in the selection of who is executed and

who is not, both in this case and in many others, the conflict should be settled now.

III.

This case is an ideal vehicle for resolving the conflict.

Mr. Pizzuto’s case provides the Court with a clean chance to straighten out

this area of law. Below, the Idaho Supreme Court flatly stated that it had been

“correct” to say, in 2008, that it was fine to “require[] an IQ score of 70 or below” at

that time, because “Atkins did not adopt specific clinical standards.” App. 9. That

is as direct and unequivocal a holding as the Court is likely to see on the central

question that is the focus of the split. Moreover, it is a statement of federal

constitutional law inextricably intertwined with the Idaho Supreme Court’s result.

This is so because the Idaho Supreme Court found Mr. Pizzuto’s motion to amend

judgment untimely on the basis that it should have been submitted shortly after

Hall. App. 12–14. But if Hall added nothing substantive to Atkins’ pre-existing

endorsement of the SEM, that reasoning would be incoherent. Consequently, the

Idaho Supreme Court’s analysis in this regard “appears to rest primarily on federal

law” and “to be interwoven with the federal law,” Michigan v. Long, 463 U.S. 1032,

1040-41 (1983), so there are no potential jurisdictional concerns.

Furthermore, the complications that render other cases imperfect vehicles

are not present here. Nearly all of the federal cases listed earlier in the section on

the conflict were habeas actions. Habeas petitions carry with them an exceedingly

PETITION FOR WRIT OF CERTIORARI – Page 10

deferential standard of review, which makes it difficult for the Court to reach the

underlying questions in a straightforward way that advances the law. See

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.”); see also Peede v. Jones, 138 S. Ct. 2360,

2361 (2018) (Sotomayor, J., respecting the denial of certiorari) (“Considering the

posture of this case, under which our review is constrained by the [federal habeas

standard of review], I cannot conclude the particular circumstances here warrant

this Court’s intervention,” even though the lower court’s approach was “deeply

concerning.”); Dunn v. Madison, 138 S. Ct. 9, 12 (2017) (Ginsburg, J., concurring)

(remarking that the issue presented deserved a “full airing” but that given the

habeas restrictions it was not a good vehicle for such an airing in its current

posture).

In other cases, there are multiple IQ scores in the record, some above seventy

and some below, muddying the picture about how the SEM would apply. See, e.g.,

Smith, 935 F.3d at 1079. By contrast, when the Idaho Supreme Court declared in

2008 that Mr. Pizzuto’s IQ disqualified him from intellectual disability (i.e., the

declaration reaffirmed below), “[t]he record reflect[ed] only one IQ score,” a verbal

seventy-two. Pizzuto, 202 P.3d at 651. And that is the conclusion the Idaho

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Supreme Court below championed. App. 9. The SEM issue is, accordingly,

unobstructed by any statistical ambiguities.

In summary, the question behind the split is at the front and center of the

case, allowing the Court to answer it once and for all.

IV.

The Idaho Supreme Court got it wrong.

Finally, the Idaho Supreme Court’s reading of Atkins—and the likeminded

interpretation articulated by the other decisions listed earlier—is mistaken, and

certiorari review is warranted to correct it.

The belief on the part of those courts that Atkins has nothing to do with the

SEM conflicts with the plain language of the opinion. In particular, Atkins

expressly addressed the upper limit of an intellectually disabled person’s IQ score.

The Court noted explicitly that “the cutoff IQ score for the intellectual function

prong” of intellectual disability is “between 70 and 75 or lower.” Atkins, 536 U.S. at

309 n.5.

Nor can the Idaho Supreme Court’s approach be squared with Hall. In that

case, the Court emphasized 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.” Hall, 572 U.S. at 720. Hall further elaborated

that it “read[] Atkins to provide substantial guidance on the definition of intellectual

disability.” Id. at 721. Were it otherwise and “the States were to have complete

autonomy to define intellectual disability as they wished, the Court’s decision in

Atkins could become a nullity.” Id. at 720. It is impossible to take these passages,

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which the Idaho Supreme Court entirely ignored, as anything other than an

acknowledgment that it was Atkins that enshrined the SEM in the Eighth

Amendment, and Hall only confirmed it after the fact.

Tellingly, the Idaho Supreme Court did not cite a single binding authority

that directly supports its construction of Atkins. And the two cases from this Court

that were relied upon are plainly distinguishable. Shoop, 139 S. Ct. at 506, deals

with adaptive deficits, the second prong of intellectual disability, not questions

about IQ scores and the SEM, which concerns the first prong and is the germane

one here. While Atkins did expressly discuss clinical standards in connection with

IQ scores, it did not do so in relation to adaptive deficits, which makes Shoop

irrelevant. Bobby v. Bies, 556 U.S. 825 (2009), is even farther afield. It is a doublejeopardy case containing no substantive analysis of intellectual disability

whatsoever, for either prong—the language cited in the opinion below is from the

procedural history section of the decision, which hardly signals its significance as a

statement of law. 556 U.S. at 831.

In short, the Idaho Supreme Court’s analysis is at odds with the text of both

Atkins and Hall, and there is no precedent from this tribunal to support it. That is

yet another reason for this Court to resolve the conflict and correct the jurisdictions

that have, like Idaho, gone astray. In the alternative, it is a justification for a

decision by the Court to summarily vacate and remand, as the decision below

conflicts with the plain language of these controlling opinions. Since Mr. Pizzuto’s

life hangs in the balance, summary vacatur is an appropriate vehicle to prevent the

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extreme inequity that would result if he were executed on the basis of a decision

that badly misunderstood this Court’s precedent. The Court has increasingly issued

summary decisions to reverse rulings in capital state post-conviction proceedings in

order to protect against “potentially severe and irreversible miscarriage[s] of

justice.” Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 200

(2021). Such a mechanism is especially appropriate when federal habeas

proceedings are incapable of remedying the error, see id. at 201, which has already

proven to be the case here, see supra at 3–4. In the absence of plenary review, a

summary reversal would be proper.

CONCLUSION

The petition for certiorari should be granted and the case set for merits

briefing and oral argument. Alternatively, Mr. Pizzuto respectfully asks the Court

to summarily vacate and remand for further proceedings.

Respectfully submitted this 23rd day of September 2021.

/s/ Jonah J. Horwitz

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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