9th Circuit affirms denial of successor petition filed by Idaho death row inmate raising Atkins claim
Posted on: 9/17/2013 01:35:42 PM by Peoples

The Ninth Circuit (Gould, with Fisher and Rawlinson) rejected Gerald Pizzuto’s contention that the Idaho Supreme Court’s denial of relief on Pizzuto’s claim of mental retardation was based on an unreasonable application of Atkins and an unreasonable determination of the facts. Pizzuto v. Blades, ___ F.3d ___, 2013 WL 4779679 (9th Cir. Sept. 9, 2013).  Pizzuto had argued, inter alia, that the Idaho Supreme Court’s interpretation of the Idaho statute barring execution of the mentally retarded was an unreasonable application of Atkins because the state court did not consider the Flynn Effect and the standard error of measurement (SEM) in determining whether Pizzuto satisfied the statutory requirement of an IQ of seventy or below. Although the panel concluded that this argument was more appropriately discussed in relation to whether the state court’s factual finding was unreasonable, it nevertheless noted that "Atkins does not mandate any particular form of calculating IQs, including the use of either SEM or the Flynn Effect." Pizzuto had raised the alternative argument that Idaho’s failure to consider SEM or Flynn Effect, when combined with Idaho’s rigid 70-point IQ cutoff, resulted in a definition of mental retardation that does not adequately protect Atkins’ class. The panel disagreed, finding that "Idaho is sufficiently within the national consensus in enforcing the substantive protection of Atkins." In a footnote, the panel explained that it did not read the Idaho Supreme Court’s decision as requiring a petitioner to present an IQ test score of 70 or below. Rather, a petitioner must present evidence, e.g., through expert testimony, establishing the petitioner’s actual IQ met the definition. 

Pizzuto also argued that the Idaho Supreme Court’s determination of facts was unreasonable because no evidentiary hearing had been held. Instead, summary judgment had been granted in favor of Idaho. The panel responded by pointing out that Pizzuto was denied an evidentiary hearing at least in part based on his own litigation choices. Although Pizzuto had requested an evidentiary hearing, both sides moved for summary judgment based on the same evidentiary facts – e.g., a post-18 verbal IQ score of 72 and a diagnosis of borderline intellectual deficiency. Under Idaho law, this meant that the parties had effectively stipulated that there was no genuine issue of material fact and that summary judgment was therefore appropriate.

Next, the panel was unpersuaded by Pizzuto’s contention that the procedural requirements set forth in Ford v. Wainwright and Panetti v. Quarterman apply in the context of Atkins. But even assuming they did apply, it was not unreasonable for Idaho to require a petitioner to make a prima facie showing of mental retardation to receive an evidentiary hearing. The panel also rejected Pizzuto’s argument that his equal protection and due process rights were violated because he would have been entitled to an evidentiary hearing without a prima facie showing had the Atkins claim been raised pre-trial.

Finally, Pizzuto claimed that even if he was not entitled to an evidentiary hearing, the Idaho Supreme Court’s decision was based on an unreasonable determination of the facts. Looking to the evidence that was before the state court, the panel could not conclude it was unreasonable for the Idaho Supreme Court to have found that Pizzuto did not state a prima facie case of mental retardation because he did not show evidence of an IQ of 70 or below before age 18. The panel agreed with the district court’s description of Pizzuto’s evidence regarding his IQ as "exceptionally thin." There was also evidence in the record supporting a reasonable inference that Pizzuto’s IQ may have declined between age 18 and age 29, when his verbal IQ was measured at 72. That the Idaho Supreme Court also analyzed an affidavit that Pizzuto had presented in support of his request for additional psychological testing, even though neither party had argued it was proof of mental retardation, demonstrated that the state court did not overlook evidence. And the Idaho Supreme Court’s failure to apply the Flynn Effect did not make its factual determination unreasonable, according to the panel. It explained: "Without more evidence in the record on the need to include an adjustment such as the Flynn Effect in considering the relationship between past IQ tests and a person’s true IQ, the Idaho Supreme Court’s refusal to apply it is not grounds for reversal here." As for SEM, the Idaho Supreme Court did acknowledge that there was a range of potential true IQs that could be inferred from the 72 IQ test score. Because Pizzuto had failed to present expert testimony supporting the notion that a downward adjustment was the more appropriate inference, the state court had been unwilling to use SEM to infer that Pizzuto’s true IQ was at the low end of the range. The panel ruled that the state court’s factual findings were not unreasonable in light of the record before it. It concluded: "Although Pizzuto argues that there may have been ‘more reasonable’ inferences that could be drawn from the facts in the record, that is not our standard of review under AEDPA."