intellectually disabled offender sentenced to death some thirty two years ago and the stated by the question before the court today is the impact of hall and what it how it affects the original decisions by both the idaho supreme court and primarily the the original decision of the district court in finding that twenty two fifty four d prohibited federal review  idaho supreme court decision the florida is not a new law it does not expand the law it does not stand the law it does not make any new law it simply enforces atkins v virginia atkins v virginia made clear that it is constitutionally impermissible to execute a person who suffers from intellectual disability the as the as the court in at cannes noted the procedures brought into effect by the state were left to the states but they had a constitutional minimal floor just as pinetti many years after ford laid that constitutional floor were made clear that constitutional floor hall makes clear the constitutional floor is still and always was that it is impermissible to execute the intellectually disabled subcouncil if hall did not create any new law why should we why should we change the the outcome of this case because of hall didn't create new law i mean already determined the idaho court did not act on constitutionally what is changed in what hall did was it made clear that the decision by the district court that the idaho supreme court was reasonable and was not contrary to act existing law right virginia controls this case so your argument is the same argument that was made when we were here before essentially essentially the same your honor though what what hall does  her on the on the concept that intellectual disability must be determined within a medical framework that the states do not have unfettered discretion to define but the state didn't exercise unfettered discretion the state like call did in fact impose a bright line seventy or below i q score so we're in the hundred twenty five twenty five fifteen a the intellectual disability statute in idaho that would in acted after atkins it says that it requires an i q score of seventy did not require a score of seventy plus or minus five within the decision itself they later and this is probably where some of the confusion comes in they later talk about the the s c m of a plus and minus five so they say because we argued obviously that the definition of intellectual disability disability mandated application of the standard error of measure which is a plus or minus five points the court i don't host supreme court then dismissed that argument first because it wasn't because they relied on a bright line rule and secondly because they found that if there was a plus or minus five standard error measurement it was then within the authority or the ability of the that is that is correct your honor in the i and the united states supreme court was incorrect in that citation well but but then there are absent but if the if the supreme court is saying that the case within the parameters are we did apply and both parties have agreed it did not apply the state of idaho represent in an am a kiss represented to the united states supreme court that the idaho supreme court in fact had a bright line rule so what it was was a misunderstanding of a long list of states and their statutes what the idaho supreme court did with the standard of error measurement assuming that they understood it to be part of  the definition that they do not apply it to the first prong of intellectual disability they brought it up later on the pre eighteen onset prong what they said was they could reasonably infer from the district court's summary dismissal of the claim that the district court found that mr because mr position his i q was above seventy on that range the district court here made a similar mistake by saying that there and we have a range hall says we have to consider the range but once we have the range it's a matter of it to be determined it's to be to the i q score is evidence of what the prog actually requires which is sub average intellectual functioning if you have an i q score within the individual is within the range where the whether they're in the range is a matter of fact ok then who makes the determination based on the range who makes a determination whether or would but the judge the trial judge made no finding he simply said there was no issue of material fact and it was untimely filed the idaho supreme court came back and said where we could look at that decision as meaning that there was a reasonable inference that he has higher than  seventy but that's not that's not within the medical framework the medical framework says if you're within the range then you've satisfied that portion of the evidentiary issue of sub average intellectual what cases that is called the florida you're on and that's that's the crux of hall is that it's it's doesn't dictate that the the states are obligated to follow every nuance and every change in in medicine but they are of the gated to be educated and to apply that framework and in the matter of hall they said clearly the clinical definition of intellectual disability were a fundamental problem premise of atkins and that included the s c m so in this case the idaho supreme court was clearly contrary to atkins i've certainly addressed that in my brief but i will talk about the well no difficulty with the difficulty with dr beaver situation dr beaver clearly was a defense witness he was a non testifying expert witness he was not he should not have been disclosed it is very difficult and i understand the court's position it's very difficult to put that cat back in the bag  it was contrary to the rules of evidence it was an invasion of the defense and it was and it led to a confusion in this case that was unnecessary because dr beaver at all times recommended further testing to determine whether or not mr pursuit suffered from intellectual disability he believed based on his neurological assessment some years before and interviews that in fact mr president didn't meet all three health i just understand do you agree that your client relied on dr beaver's affidavits to support his claim of intellectual disability emery's i q score of seventy two and a plethora of affidavits such supported adaptive deficit's we also had dr bieber's opinion that he like any media meet met that standard but he didn't once once dr beaver alerted the defense found what he did not know had occurred a test and i q test of mr  using dr beaver as i mean we never intended to use done as a testifying witness you know there's two premises here there's the the filing of a petition that supports an allegation and then there's the evidence that you proffer to support to support it when we file for the motion for summary judgment when we asked for additional testing when we actually asked for a hearing we did not rely on that affidavit so that and i think the laws fairly clear that even if you at one time rely on the expert once you determine that it's going to be a non testifying expert you're not obligated to disclose i would i would like to say just one other thing that that i haven't gotten to yet and that's that the fact that hall is not new law is fortified by two for two other decisions that have come down by the united states supreme court since hall from field became and more of the texas in more of the united states supreme court made clear that the adaptive deficit's and the interrelated and conjunctive assessment requires is required to be within the medical framework as well as the i q and the sub average intellectual functioning so that when you take that that trio of cases it becomes very clear that the united states supreme court was not making a new law but was was simply explaining how the law of atkinson not been appropriately enforced in this case the district court in following the and following the idaho supreme court's lead made similar errors in application of medical facts that render his decision  talking about the statutes are you saying the sketch is been changed no i'm saying that the united states supreme court and reading the statute and apparently very quickly reading the pursuit decision determined that it was not a bright line seventy seven the case right even if the united states supreme court is correct and i assert that it is not the majority opinion is not the one the dissenting opinion is correct even if it is correct the supreme court at the idaho courts application of the statute in conjunction with the language of the statute to say that there was no bright line rule well i call it is true that like all the state of idaho those definition counsel good afternoon your honor lamont anderson for the respondent randy blades the real question before this court is in fact the impact of hall upon the audit was from course decision and the impact is it doesn't exist for two reasons primarily because hall was decided well after the auto supreme court issued its decision implicit oh and secondly because it doesn't change the outcome because let's look at two recent decisions from the united states supreme court that were i cited in our supplemental authorities for ginia versus lubanga discussed graham versus florida where the  florida supreme court determined that for genius geriatric release program did not provide actually was the yeah a meaningful opportunity for juvenile non offender no and what this court has done is expanded now compare that also with what happened in athens and paul only required the three general criteria me the and i can't remember the name of it now the way they act and onset before age eighteen there was nothing there was nothing in ak and that talked about the s c counsel let me ask you how they were how the court the states were supposed to implement this three prong criteria why wasn't that just the clarification well but if you look at the decisions of the united states supreme court and what constitutes clearly established federal law a mere expansion a clarification of whatever is not clearly established and that's why i cited in our supplemental authorities virginia versus le blanc and done versus madison done versus madison  incompetency case where the lower court tried to expand forward forces wainwright and of course that's important because at cannes the the court said we're going to leave to the states the issue of implementation just like we did in ford versus wainwright and the united states supreme court came back and said neither pinetti nor ford clearly established to the prisoners and competent  because of a failure to remember his commission of the crimes as distinct from a failure to rationally comprehend the concepts of crime and punishment as wide and this case counseling if we disagree with you regarding your characterization of six fifty one pacific second six fifty one the court is talking about to those contention that his ice cube's scores only accurate within five points he contends his actual i q could have been five points lower or higher than seventy two and the supreme court came back and said there's two problems with this the first is that when an acting one nine hundred twenty five fifteen a the legislature did not require the i q score to be within five points of seventy or below it required it to be seventy or below now the that's where the district court stopped and that's why the district court was wrong in its decision regarding that aspect of the idaho supreme court's decision because the court went on and said the court could just as reasonably have inferred that it was higher the alleged error in i q testing is plus or minus five points the district court was in the drug reasonable inference from the my client's i q and the other two prongs of of a better required under actions it is that particular section of the position opinion that the united states supreme court relied upon and said that the idaho supreme court will allow additional evidence to be presented well if you can allow additional evidence to present it as articulated in the p as i as i indicated the court actually considered vs e m in that particular paragraph the court considered all of the evidence that was presented regarding both the i q irrespective of how this court decides this case if it decides to call did not create new law and was premised upon at cannes the idaho supreme court complied with i'd be happy to your honor i struggle with the notion that dr beaver affidavits his opinions and everything that he's done and i have to assume and i think it's proper to assume that those opinions that those affidavits were based upon his nine hundred ninety six testing that were presented not only to the idaho supreme court but it's my recollection that was part and parcel of the success of paid this petition but that we know for a fact it was presented to the idaho supreme court how the state was not entitled to that reports and his testimony a sentencing where dr emory said to zero as i q was and i think was a verbal i q it was only one prong of the ways was seventy two but it was his opinion that it was significantly higher court and to the idaho supreme court to say that the state is not in tied to that because all of a sudden dr beaver is not going to testify in federal court just defies fundamental all makes is that we could have gotten it back then well maybe maybe not i'm not entirely sure how we were going to get the underlying testing when the underlying testing itself was not presented to the trial court but the affidavits were presented yet found a motion for discovery in idaho and for post conviction cases the probability of us getting that underlying test testing was simply not going to be very great even if we had a reason to have sought that and at that particular point we didn't i would submit that as did the district court that this clearly falls under the judicial arena exception to the rules of discovery  i am i am aware that this court has not particularly gone into that area but i am also unaware of any circuit that has addressed the issue that has not applied the exception it is certainly the majority rule and the district courts of the circuit have certainly applied it i do i have a severe problem with the notion that we were not entitled to that information unless the court has additional rebuttal and here are the district court was not wrong when it's when it found that idaho was a bright line rule because the state of idaho told the court handling of the s c m it was clearly a violation or it a total disregard of the medical standards it is a range it is not in number the court and the district court made the exact same mistake when it found at page nineteen in its original does in its original decision a person who receives a full scale of thirty seven to seventy two on a test they have an actual i q that test as low as sixty seven or as high as seventy seven and where on this continuum the most likely score lies is a question of fact to be decided on the evidence it is not a question of fact to be decided it is a range not a number and the and the district courts failure to understand that medical standard along with the idaho supreme court's inability to understand it permeate the findings that mr positano was not intellectually disabled or is not intellectually disabled yet as we can look at the findings of fact made by judge reinhardt when he found that the fact that mr pursuit was an intelligent based on dr emery's findings a seventy two and intellectual borderline intellectual functioning and that that mr that the judge found that he couldn't he couldn't abstract he couldn't reason he couldn't control his behavior he he basically finds all of the attributes that atkins finds compelling to provide the protection that the courts don't want to preserve provide because an intelligence means you can't change and so judge reinhardt took it as an aggravator that's why adkins had to set the floor and that floor has been back bashed in this case finally i'd just like to say that the supreme court's inference of ongoing ept ongoing drug abuse and epilepsy somehow made it reasonable not to take