F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G E R A L D R O S S P I Z Z U T O , J R .,

Petitioner-Appellant
,

v

.

R A N D Y B L A D E S , W arden, I daho Max imum Security

I nstitution, Respondent-Appellee

. N o. 12-99002

D.C. No. 1:05-cv-00516- B L W

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho B . L y nn W inmill, Chief District J udg e, Presiding

Arg ued and Submitted J une 27, 2013—Seattle, W ashing ton

F iled September 9, 2013

B efore: Ray

mond C. F isher, Ronald M. Gould, and J ohnnie B . Rawlinson, Circuit J u d g es.

O pinion by

J udg e GouldP I Z Z U T O V

. B L A D E S 2

SUMMARY *

Habeas Corpus/Death P e nalty

The panel affi r m ed the denial of a 28 U.S.C. § 2254 habeas corpus petition challeng ing a conviction and capital

s e n tence based on Atkins v. Virginia
, 536 U .S. 304 (2002)
, which prohibits the ex ecution of mentally retarded persons.

I daho state law responded to Atkins by enacting state law prohibiting the e x ecution of mentally retarded person s a nd defining “me n t a lly retarded.” The I daho Supreme Court applied that law for the first time in p etitioner’s c ase. Observing that the United States Supreme Court in Atkins left the definition of “mentally retar d e d ” broadly open for consistent state-court d e c isions, the p anel held that the I daho Supreme Court’s decision was n e ither contrar y to n o r an unreasonable application of clearly established federal law.

COUNSEL

D a niel J

. B roderick, F ederal D efender; J oseph Schlesing er

an d J o an M. F isher (arg

ued), Assistant F ederal D efenders, F ederal Defender of Eastern D istrict of California, Sacramento, California, for Petitioner-Appellant.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P I Z Z U T O V

. B L A D E S 3

L awrence G. W asden, Attorney General of I daho, and L

. L aMont Anderson (arg ued), D eputy A ttorney General, C a p i t al Li t i g a t i o n U n i t C h i e f
, B o i s e , I d a h o , f

o r Respondent-Appellee.

OP INION

GOUL D, Circuit J udg e :

G erald Ross Piz z u to, J r ., appeals the d istrict court’s d e n i a l

o f h is successive p etition for a writ of habeas corpu s , i n which he soug ht relief based on the Uni ted States Supreme Court’s d ecision in A t ki n s v. Virginia
, 536 U.S. 304 (2002). I n Atkins
, the Supreme Court held that th e E i g hth Amendment prohibits the ex e c ution of mentally retarded
persons. 1 I n response to Atkins
, I daho enacted a law prohibiting ex ecution o f mentally r etarded criminals. Piz z uto challeng es the I daho Supreme Court’s decision that his

ex e c uti o n i s not barred u nder that state law. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court’s denial of Piz z uto’s petition.

1 T h e pref

erred clin ical term

is n o w “ in tellectu al d isab i lity .” S ee, e.g

. , Ro b ert L

. Sch alo c k et al., Th e Ren a m in g o f Men ta l Reta rd

a t io n: Un d ersta n d in g

th e Ch a n ge to th e Term In tellectu a l Disa b ility , 4 5 In tell. & Dev

. D isab ilities 1 1 6, 1 1 6– 1 7 (2 0 07 ); s ee a lso Ro sa’ s L aw , Pu b

. L

. No

. 1 1 1

- 2 56
, 1 2 4 Stat. 2 6 4 3 (2 01 0 ). W e u se “ m en tally retard ed ” b ecau se th e p arties u se th at t erm

an d b ecau se th at term w as u sed in Atkin s an d m u ch

o f its p ro g en y

. See, e.g

. , Atkin s , 5 3 6 U.S. at 3 0 6

.P I Z Z U T O V

. B L A D E S 4

I

Piz z uto was convict e d o f two c ounts of first-deg r ee murder, two c ounts of f

elony murder, one count of r obb e ry , and one count of g rand theft. The I daho Supreme Court succinctly summariz e d wha t i t c o nsidered key facts of the crime as follows:

Piz z uto approache d [ B erta L ouise Herndon and her nephew, Delbert Dean Herndon] with

a .22 caliber rifle as they a r r ived at their mountain cabin and made them enter the cabin. W hile ins i d e, he tied the Her[ n] dons’ wrists behind their backs and bound their leg s in order to steal their money

. Some time later, he bludg eoned B erta H erndon to death with ham m e r blows to her head and killed D el Herndon by bludg eoning him in the head with

a hammer a

n d shooting him b etween the ey es. Piz z uto murdered the H er[ n] dons just for the sake of killing and subsequently joke d and brag g ed about the killing s to his associates.

Pizzuto v. State
, 202 P.3d 6 4 2, 64 5 (I daho 2008); see also Pizzuto v. B lades
, 6 7 3 F

. 3d 1003, 1004 (9th Cir. 2012). Piz z uto was sentenced to death for the murders.

Piz z uto’s conviction and sentence were upheld on direct appeal, ex c ept for his r obber y conviction, which the I daho Supreme Court held w as a les s e r -i ncluded offense of felony murder and so merg e d wi t h t hat c onviction. See S tate v

. Pizzuto
, 810 P.2d 680, 695 (I daho 1991). Piz z uto’s o t h er convictions and his death sentence were u pheld ag ain on state and federal post-conviction review. See Pizzuto
, 673 F

. 3d atP I Z Z U T O V

. B L A D E S 5

1 0 0 7 ; see also Pizzuto v. State
, 233 P.3d 86, 88–89 (I d a h o 2010) (reciting

the case history

).

I n his fifth state petition f or post-conviction review, relevant h e re, Piz z uto contended that his death sentence was prohibited by Atkins

. See Pizzuto , 202 P.3d at 644. Piz z uto

mov e d for summary judg ment on that issue. B ut the state trial court g ranted summary judg ment in favor of the State because (1) Piz z uto did not raise a g enuine issue of material fact to su p p o r t h is claim o f mental retardation and (2) the petition was untimely

. Id. at 645–46.

The I daho Supreme Court affirmed the g rant of summary judg ment t o the State. To survive summary dismissal, Piz z uto had to present e vidence establishin g a p r ima facie

case on each element of the c l ai m s o n which he bore the burden of p roof. Pizzuto
, 202 P. 3 d at 650. The I daho Supreme Court held that “Piz z uto had the burden of showing that at the time o f his murders he was men t a l l y retarded a s defined in I d aho Code § 1 9–2515A(1)(a) and that h is mental retardation occurred prior to his eig hteenth birthda y

. ” Id

. at 655. B ut Piz z uto did not “create a g enuine issue of material fact on each element of his claim” b e cause he did not show that h e “had an I Q of 70 or below at the time of the murders

a n d p r i o r to his eig hteenth birthday .” Id

. Piz z uto h ad introduced a verbal I Q test score of 72 and a sserted that it should b e interpreted a s b elow 70 because the standard error of measurement for the I Q test was plus or minus five p o ints. Id

. at 651. B u t the court r ejected this arg ument, concluding that “the leg islature did not require that the I Q score be within five points of 70 or b elow. I t required that it be 70 or below.” Id. The court also n oted that Piz zuto’s I Q could have decreased in the y ears be t we e n his eig hteenth birthday a nd when he took the I Q test where he scored 72 b ecause of hisP I Z Z U T O V

. B L A D E S 6

l i f el o n g drug use and his health p roblems. Id

. a t 651–55

. The I daho Supreme Court stressed that Piz z uto did not offer
any ex pert opinion stating that he was mentally retarded at the time of the murders or before the ag e of 18. Id . at 655. The I daho Supreme Court a lso affirmed the trial court’s implicit denial of an evidentiary

hearing

. Id.

W e g a ve Piz z uto permission to file a succe s s i v e federal habeas corpus petition on his Atkins claim. Afte r c a r eful proceeding s, the federal district court denied P i zz uto’s h abeas
corpus petition but g ranted a certificate of a ppealability on the Atkins issues. See 28 U .S.C. § 2253(c). This timely appeal followed.

II

W e review de novo the district court’s denial o f a h abeas petition. G ulbrandson v. Ryan
, 711 F .3d 1026, 1036 ( 9th Cir. 2013). Review of Piz zuto’s petition is g o v e r ned by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because Piz z u to filed h is pet i t i on after April 24, 1996. See Lindh v. Murphy , 521 U.S. 320, 322, 336 (1997). Under A EDPA, habeas relief can be g ranted only if the statecourt proceeding adjudicating the claim on the m e rits “resulted in a de cision that w as contrary to, or involved an unreasonable application of, clearly established F ederal law,

as determined by the Supreme Court of the Unit ed States,” 28 U.S.C. § 2 2 5 4(d)(1), or “ was based on an unreasonable determination of the facts in lig ht of the ev i d en c e presented in the State court proceeding ,” § 2254(d)(2). Un d e r b o t h subsec t ions, our r eview is sig nificantly deferential to our state-court colleag ues’ adjudication of the claim. See Schriro

v. Landrigan
, 5 50 U.S. 4 65, 473 ( 2007). “The q uestion under AEDPA i s n o t whether a federal court believes the stateP I Z Z U T O V

. B L A D E S 7

court’s determination w a s incorrect but whether that determi n a tion was unreasonable—a substantially hig her threshold.” Id

. (citing W

illiams v. Taylor
, 529 U.S. 362, 410 (2000)); see also W

illiams , 529 U .S. at 4 09 (“Stated simply
, a federal habeas court making the ‘unreasonable application’ inquiry should ask whe t h e r the state court’s application o f

c l e a r l y e s t a b l i s h e d f e d e r a l l a w w a s o b

j e c t i v e l y unreasonable.”).

W e apply this deferential r ev i ew to the last reasoned state-court decision. See Y lst v. Nunnemaker , 501 U.S. 797, 803–04 (1991); see also Hibbler v. Benedetti
, 693 F

. 3d 1140, 1 1 4 6 (9th Cir. 2012), c ert. denied
, 133 S. Ct. 1262 (2013). Here, w e review the I daho Supreme Court’s decision. See Pizzuto
, 202 P.3d 642. B e cause that c o u rt denied Piz z u t o ’s Atkins claim on the merits, Pi z z u to can rely only on the record before the state court in ord e r t o satisfy the requirements of § 2254(d). Cullen v. Pinholster
, 1 3 1 S

. Ct. 1388, 1398 (2011); see also G ulbrandson
, 711 F .3d at 1042. I f the state court’s adjudication of a cla im survives r eview under § 2254(d), that ends our a naly sis; the p e t i t i o n er is not entitled to an evidentiary hearing on that same c l a i m in federal court. See Pinhols t e r , 131 S. Ct. at 1398–1401; c f. Earp v. Orno s k i
, 4 3 1 F .3d 1158, 1166–67 (9th Cir. 2 005) (“B ecause a federal court may not i n d e p endently review the merits of a state cou rt d e cision without first a pply ing the AEDPA standards, a f ederal c ourt may not grant an evidentiary hearing without f irst determining whether the
state court’ s d e cision was an u nreasonable determination o f the facts.”).P I Z Z U T O V

. B L A D E S 8

III

Piz z uto contends that the I daho Supreme Court’s decision

was an unreasonable application of the law set forth in Atkins and an unreasonable d etermination of the facts. W e consider each arg ument in turn.

A

Pi z z uto contends that the I daho Supreme Court unreasonably a

pplied Atkins a

n d that he should be g iven relief under 28 U .S.C. § 2254(d)(1). Under § 2254(d)(1), “[ t] he pivotal question is whether the sta t e court’s application” o f the Supreme Court precedent “was u n r e a s o n a b l e , ” Harrington v. Richter
, 131 S. Ct. 770, 785 (2011), as opposed
to merely “incorrect or err o n eous,” Lockyer v. A n drade
, 538 U.S. 63, 75 (2003); see also W illiams
, 5 29 U .S. at 409–10 (requiring that the state-court decisi o n b e an “objectively unreasonable” application of clearly e stablished federal law to g rant relief under § 2 254(d)). I n apply ing this standard, we “ must ask whether it is possible f airminded jurists could disag r ee that those a rg u ments or theories a

re inconsistent with the holding in a prior d e c i s i on of [ the Supreme Court] .” Harrington , 131 S. Ct. at 786.

I n reviewing the I daho Supreme Court’s decision, we must first ascerta i n w h a t is the clearly established law o f Atkins and then determine whether the I daho Supreme Court unreasonably a

pplied that law in Piz z uto’s case. P i z z uto faces a h ig h barrier on this issue because the Supreme Court, while outlawing the d eath penalty for mentally r et arded
persons, left definition of that term broadly open for consistent state-court decisions. And so the Supreme Court
g ave some leeway to state le gi s l ators to craft their o wnP I Z Z U T O V

. B L A D E S 9

standard for what constitutes mental retardation. As we have previously e x plained: “The Supreme Court in Atkins did not define mental retardation as a m a t t er of federal law. W ith respect to mental retardation

. . . the Supreme Court left to the
states ‘the task of developing appropriate way s to enforce the constitutional restricti o n u p o n [ t h e i r ] e x e c u t i o n o f sentences.’” Moormann v

. S chriro
, 672 F .3d 644, 648 (9th Cir. 2012) (alteration in orig inal) (quoting Atkins
, 536 U.S. at 317); see also Hill v

. Humphrey , 662 F .3d 1335, 1339 (11th C ir. 2 0 11) (en banc) (“I n Atkins
, the Supreme Court w a s careful not to fix the burden o f p r o o f or to impose rig id definitions of mental retardation. I nstead, the Court left it to the states to d evelop ‘appropria t e’ procedures for mental retardation determinations

. . . . ” )

. More recently
, the Supreme Court reaffirmed that Atkins “did not provide definitive procedural or substantive g uides for det e rmining when a person who claims mental r e tardation will be so impaired as to fall [ within A tkins ’ compass] .” Bobby v. Bies
, 556 U .S. 825, 831 ( 2009) ( alteration in orig inal) (internal quotation marks omitted); see a lso Schriro v. Smith
, 5 46 U.S. 6, 6–8 (2005) (per curiam).

The “clearly e stablished law” of A tkins is its holding “that

a person w ho is mentally r etarded may not b e s e n tenced to death.” Moormann
, 672 F

. 3d at 648. B ut clearly e stablished Supr eme Court law does not totally hem in the ability o f individual states to define and determine who i s mentally retarded.

I daho r esponded to Atkins by enacting I daho Code § 19- 2515A, which prohibits the ex ecution of mentally r e t ar d ed persons. I daho defines mentally r etarded as:P I Z Z U T O V

. B L A D E S 10

si g nificantly subaverag e g eneral intellectual functioning that is accompanied by sig nificant limitations in adaptive functioning in at least
two (2) of t h e following skill a reas: communication, self-care, home living
, social

or interpersonal skills, u se of community
resources, self-direction, functional academic skills, work, leisure, heal t h a nd safety

. The
onset of sig n ifican t subaverag e g eneral i n tellig ence functioning and sign i fi c a n t limitations in adaptive functioning must occur before ag e eig hteen (18) y ears.

I daho Code A n n

. § 19-2515A(1)(a). “‘Sig nificantly subaverag e g eneral intellectual functioning ’ means an intellig ence quotient of s e v en ty ( 70) or below.” § 19- 2515A(1)(b).

I n Piz z uto’s case, the I d aho Supreme Court applied § 19- 2515A for the first time. The I daho Supreme Court’s use of this definition was not an unreasonable application of Atkins because I d aho’s definition of men t a l retardation “ g enerally conform[ s] to the c linical def i n i t i ons” cited in Atkins

. 2

2 W e d o n o t read th e Id ah o Su p rem e Co u rt’ s d ecisio n

as h o ld in g th at a d ef en d an t m u st presen t an IQ test sco re, as o p po sed to an actu al IQ, o f 7 0

o r b elo w

. If th at h ad b een th e case, t ha t c o ur t co u ld h av e d i sp o sed of P izzu to ’ s Atkin s claim sim p ly b y n o tin g th e ex isten ce o f P i zz u to ’ s test

sco re. I n stead
, th e Id ah o Su p rem e Co u rt ap p eared to co n tem p l ate th at P izzu to ’ s actu al IQ m ig h t b e 7 0 o r b elo w , d esp i te a test sco re o f 7 2

. A s

w e see it, th e Id ah o Su

p rem e Co u rt en tertain ed th e p ossib ility th at P izzu to

co u ld satisf

y Id ah o ’s s t atu t o ry d ef

in itio n o f m en tal retard atio n t h ro u g h
p ersu asiv e ex

p ert testim o n y th at P izzu to ’ s tru e IQ b ef o re h e w as 1 8 w asP I Z Z U T O V

. B L A D E S 11

5 3 6 U. S

. at 317 n.22. F or ex ample, in Atkins
, the Suprem e Court c ited the American Psy chiatric Associa t ion’s (APA) definition of mental r etardation, which requires “sig nificantly subaverag e g eneral inte llectual f unctioning

. . . that is accompanied by sig nificant l i m i t at i o n s in adaptive functioning ” and “[ t] he o nset must occur before ag e 18
y ears.” Id

. at 308 n.3 (quoting AP A
, D iagnostic and Statistical Manual of Mental Disorders 41 (4th ed. tex t rev. 2000) [ hereinafter, DSM-IV-TR ] ). The APA say s that the I Q cutoff for mental retardation is “approx imately 70.” Id

.

The Atk ins Court a lso pointed to several state statutes offering protection to mentally retarded persons, illus t r a t ing the national consensus ag a inst ex ecuting men t a l ly retarded

c riminals. 536 U.S. at 313–15 & nn.9–15 (citing inter a l i a Ky

. Rev. Stat. Ann. § 532.1 3 0 ( 2 ) ( 1 990); Md. Code Ann., Art. 27, § 412(e)(3) ( 1989); N.C

. Gen. Stat. § 15A-2005 (2002); Tenn. Code Ann. § 3 9-13-203(c) (1990)). These state

s t atutes use a

n I Q of 70 as the cutoff f or mental r etardation. B ecause I daho’s statute is similar, I da ho’s definition o f mental retardation has “support” in Atkins ’ “ d iscussions of

. . . the state standards” that the Supreme Court looked to when describing the cla s s protected by the Eig hth Amendment. Pa n e t t i v. Quarterman
, 551 U.S. 930, 959 (2007) (rejecting the F ifth Circuit’s incompetency standard in part because it lacked support in the “discus s i o ns of the

common law and the state standards” on which the Supreme Court’s incompetency law is based).

7 0 o r b elo w

. A lso , an IQ test sco re ab ov e 7 0 tak en bef o re th e ag e o f 1 8

w o u ld n o t n ecessa r i l y p reclu d e a su b seq u en t, bu t still p re- 18
, o n set of

m en tal retard atio n

as req u i red u n d er Id ah o law

.P I Z Z U T O V

. B L A D E S 12

Despite the similarities between I daho’s statute and those relied on by the Supreme Court in Atkins
, Piz zuto contends that the I d aho Supreme Court’s interpretati o n of § 19- 2515A(1) was an unreasonable application of Atkins because
t he I daho Supreme Court did not consider two statisti c al adjustments to his I Q sc o r e

— the F ly nn Effect a

nd the

s tandard error of measurement (SEM). Althoug h Piz z ut o raises this claim in his d iscussion of an unreasonable application of Atkins under § 2254(d)(1), we beli e ve it is

more appropriately discussed as i t relates to the f actual analy sis under § 2254(d)(2). See Part I I I .B .2, infra ; Green v

. Johnson
, 515 F .3d 290, 300 n .2 (4th Cir. 2008) ( apply ing the

same statistical adjustments to the § 2254(d)(2) analy sis); but Hooks v. W

or km a n , 689 F .3d 1148, 1 170 (10th Cir. 2 012) (applying these adjust m ents to the leg al standard under § 2254(d)(1)). Reg ardless, A t ki ns does not mandate any particular form of calculating I Q s, including the use o f either SEM or the F ly

nn Effect. See, e .g. , Bies
, 5 5 6 U

. S

. a t 831; Atkins
, 536 U.S. at 3 17; W orkman
, 689 F .3d at 1170 (“[ I ] t cannot be said that the [ state c ourt’s] failure to c onsider a nd apply the F ly

nn Effect is contrary to, o r a n unreasonable application of, clearly

established federal law.”).

Piz z uto nex t a r gues that even if these theories are not

ma ndated by Atkins
, I daho’s failure to consider them, combined w ith I daho’s rig id 70-point cutoff for mental retardation, r e sults in a definition that d oes no t sufficiently protect Atkins ’ class. W e disag ree. I daho’s law is not outside

o f t he “national c onsensus [ that] has developed ag ainst” t h e

ex e c ution of “offenders possessing a known I Q less than 70.” Atkins
, 536 U.S. at 3 16. Rather, a s shown above, I daho’s law
rests comfortably within t h a t c onsensus. And as stated in Atkins : “ To the ex tent there is serious disag reement about the

ex e c ution of mentally retarded offenders, it is in d eterminingP I Z Z U T O V

. B L A D E S 13

which o f fenders are in fact retarded.

. . . Not all people w ho claim to be m e n tally retarded will be so impaired as to fall within the rang e of mentally retarded offenders a bout whom there is a national consensu s

. ” 5 36 U .S. at 317. I daho is sufficiently w ithin the n a t ional consensus in enforcing the substantive protection of Atkins

. The I daho Supreme Court’s application of Atkins was not objectively unreasonable.

B

Piz z uto nex t contends that t he I daho Supreme Court’s dete r m i nation of the facts was unreasonable. See 28 U .S.C. § 2254(d)(2). He asserts that the s t ate court’s fact-finding
process was deficient a n d that the state court’s f actual finding s were not supported by substantial e v i d e n ce in the
state-court record. Piz z u to’s burden under § 2254( d)(2) is heavy

. “This is a daunting standard

— o n e t h at will be satisfied in relatively few cases.” Taylor v. Maddox
, 366 F .3d 992, 1000 (9th Cir. 2004).

1

Piz z uto urg es that the state court’s determination of facts

w a s unreasonable b ecause the state court did n ot hold a n evidentiary hearing before d eny ing his state petition for postconviction review. “I n some limited circumstances, we have held that the state c ourt’s fai l u r e t o hold an evidentiary hearing ma y r ender its fact-finding process unreasonable under § 2254(d)(2).” Hibbler
, 693 F .3d at 1147; see also Taylor
, 366 F .3d at 999–1001. F o r ex ample, in Earp
, we h eld that a state court’s determination of facts was u n r e a sonable when it failed to hold an evidentiary hearing because “such a h earing was necessary to make the credibility determination
upon which rejection of [ the petitioner’s] claim depends.”P I Z Z U T O V

. B L A D E S 14

Earp
, 431 F .3d at 1 1 69. “B ut w e h ave never held that a state

c o u r t must conduct an evidentiary hearing to resolve e ve r y disputed factual question; such a per se rule would be counter not only to the deference o wed to state courts under AEDPA, but to Supreme Court p recedent.” Hibbler
, 693 F .3d a t 1147 (discussing Landrigan
, 5 50 U.S. at 471, 4 76, where “the Sup r e m e Court held that a state court’s rejection of the petitioner’s alleg ations was reasonable for purposes o f § 2254(d)(2), even thoug h the state court had not held an evidentiary hearing ”); cf. Lambert v. B lodgett
, 393 F

. 3d 943, 970 (9th Cir. 2004) (“Althoug h an evidentiary hearing mig ht be evidence o f an adjudication on the merits, it is a sufficient, rather than a necessary , conditi o n to AEDPA deference.”). The state court does n ot act unreasonably “so long as the state court could h ave reaso n a b l y concluded that the evidence already adduced was suffici en t to resolve the f actual question.” Hibbler
, 6 93 F .3d at 1147. “The ultimate issue is whether the state’s fact-finding procedures were reasonable; this is a fact-bound and case-specific inquiry .” Id.

Piz z uto was denied an evidentiary hearing at least in part based on his own litig ation choi c e s

. A fter filing his f ifth petition for post-convicti o n r ev iew in the state trial court, Piz z uto moved for additional neurolog ical testing and an evidentiary heari n g. B ut at the same time, Piz z uto was

a p pealing the state trial judg e ’ s f ailure to recuse h imself, s o P i z z uto’s counsel said that she could not ask the trial cou r t ju d ge t o r u le on the motion for an evidentiary h e aring

. The State moved f

o r summary d ismissal of Piz z u to’s petition,
arg uing that Piz z uto’s petition was untimely and that, e ven if the pe t i t i o n was timely
, Piz z u to was n ot entitled to relief because he had not c r eated a g enuine issue of material fact a s to whether he was mentally retarded under I daho law. After losing the interlocutory appeal to disqualify the state trialP I Z Z U T O V

. B L A D E S 15

judg e, Piz z uto filed a motion for summary judg ment, arg uing that b ased on the evidence a lready in the record, there was no g enuine issue of mater i a l fact and that his ex ecution was barred because, as a matter of law, he w as mentally retarded. I n the a lternative, Piz z uto ag ain asked for an eviden t i a r y hearing

.

The state trial court g ranted summary judg ment f or the State w ithout addressing Piz z uto’s motion for an evidentiary hearing
, and the I daho Supreme Court affirmed. The question we must answer is whether this implicit denial of an evid e ntiary hearing made the fact-finding process deficient under AEDPA— t h a t is, whether the determination of facts

was unreasonable based on the specific facts o f t his c ase. Under the unique facts of this case, we hold that it was not.

Under I daho law, where one party moves for summary judg ment, the trial court has discret i o n to g rant summary judg ment in favor of the opposing party on that same issue. See Pizzuto v. State
, 202 P.3d at 650 ( q u o t ing Harwood v

. Talbert
, 39 P.3d 612, 617 (I d aho 2001)). Here, Piz z uto moved f or summary judg ment contending that he is mentally retarded under § 19-2515A. I n so doing
, he arg ued that the undisputed e v i d e nce showed he is mentally retarded as a matter o f law. And the State directly addre s s e d t h e same arg ument in its briefs before the state trial court as well.

I n su b s t ance, the two motions—both asking the trial
court to summarily decide if there w as a g enuine issue of fact

on w hether Pi z z u to is mentally retarded—effectively stipulated that the facts in the record were sufficient to decide
t he case. U nder I daho law, w here both parties move f o r

su m m a r y judg ment “based upon the same evidentiary facts and the same issues and theories, they have effectivelyP I Z Z U T O V

. B L A D E S 16

stipulated that there is no g enuine iss u e o f material fact a nd
summary judg ment is t h e re for[ e] appropriate.” Kromrei v

. AID Ins. Co.
, 716 P

. 2 d 1 3 2 1
, 1323 (I daho 1986); c f. Surgicenters of Am., I

nc. v. Med. Dental Surgeries

, C o. , 601 F .2d 1011, 1014 (9th Cir. 1979) (“I n other words, this was a trial on a stipulated record and was so intended by the parties. T here are no g enuine issues of material facts. I t is a proper case for disposition throug h summary

judg ment.”).

Pi z z uto’s summary judg ment motion contradicted his request f o r an evidentiary hearing because his summary judg ment motion meant that in his view the facts in the record

were sufficient to decide the case. Piz z uto b y filing his
summary judg ment motion a c c epted the risk that the trial
court could rule in favor of the s t a t e , instead of merely deny ing his motion. Under I daho law, “[ i] f a trial court denies a party ’s motion for summa r y judg ment, it has the discretion to g r ant summary judg ment to the opposing p arty

. ” P i z z u t o , 202 P.3d a t 656. I n these c ircumstances—most notably that under I daho law the trial court had discretion to
treat Piz z uto’s summary judg ment motion as a concess i on that the record was compete—it was not unreasonable for the
state court to decide the motion for s u m m a ry judg ment without an evidentiary hearing

. “ [ T] he state court could have reasonably concluded that the evidence already adduced was sufficient to r esolve t h e factual question” because Piz z uto stated t h a t there was no g enuine issue of material fact. Hibbler , 693 F .3d at 1147. 3

3 W e n ote th at, w

h ile Id ah o law m ay g ran t th e trial co u rt th e po w er to treat su ch a m o tio n f

o r su m m ary j u d g m en t as a s tip u l atio n th at th e reco rd is co m p l ete, th e trial co u rt h ad th e d iscretio n to rej ect th at stip u latio n an d
to h o ld an ev id en tiary

h earin g . Stated an o th er w ay , th e state co u rt co u ld h av e h eld an ev id en t iary h earin g n o tw ith stan d in g P izzu to ’ s d ecisio n to f i leP I Z Z U T O V

. B L A D E S 17

Piz z uto a lso challeng es the fact-finding process for two other reasons, n either of which is persuasive. F irst, he insists that the Due Pro c e s s Clause and Panetti v. Q uarterman require stat es to impose certain procedures before adjudicating a

n Atkins claim. I n Panetti
, the Supreme Court held that “ Ford [ v. W

ainwright
, 477 U.S. 399 (1986),] entitled [a p eti t ioner] to certain procedures not provided in the state court [ and] failu r e to provide these procedures constituted an unreasonable application o f clearly e stablished Supreme Court law.” 551 U.S. a t 948. B ut the Supreme Court has never h eld that the procedural requirements

announc ed in Ford and P a netti —prohibiting ex ecutions o f i ncompetent criminals—apply in the contex t of Atkins

. Rather, the Supreme Court has repeatedly said that the states

are to determine both the substantive and procedural reg imes for enforcing A tkins

. 4 See, e.g. , B ies
, 5 56 U.S. at 831; see also H ill
, 662 F .3d at 1359 (holding that, unlike A tkins
, Ford

a m o tio n fo r s um m ary j u d g m en t. B u t o n th e f

acts o f th is case, w e

co n clu d e th at it w as n o t req u ired to d o so

. If th is h ad b een a f ed eral co u rt h ab eas p ro ceed in g u

n der 2 8 U.S.C. § 2 2 5 5
, a nd w ith a sim i lar f ed eral
statu te d ef

in in g m en tal retard atio n , w e m i g h t h av e co n clu ded th at P izzu to ’ s b o rd erlin e IQ test sco re, af f id av i ts su p p o rtin g h is case, an d h is
req u ests fo r f

u rth er testin g to g eth er w ere su f f icien t to sh ow t

h at P izzu to h ad a su f f i ci e n t ly clo se case to w arran t f u rth er ev id en tiary p ro ceed i n g s. W e n eed n o t ad d ress w

h eth er th e state co u

rt’ s d ecisio n to den y P izzu to an

e v id en t iary h earin g , in th e f ace o f th e cro ss m o tio n s f o r s u m m a r y j u d g m en t th at h ad been f i led
, w o u ld h av e b ee n an u n reaso n ab le d eterm in atio n o f t

h e f acts if P izzu to h ad n o t ef

f ectiv ely stip u l ated th at th e

reco rd w as co m

p lete.

4 T h e S u p rem e Co u rt h as stated th at ev en th o u g h it d id n o t d ictate
p ro ced u res f

o r ad j u d icatin g m en tal retard atio n , th o se p ro ced u res “ m ig h t, in th eir ap plicatio n , b e su b j ect to co n s titu tio n al ch allen g e.” S mith
, 5 4 6 U.S. at 7

. B u t as w e ex p lain h ere, Id ah o ’ s p ro ced u res in th is case w ere n o t

u n reaso n ab le.P I Z Z U T O V

. B L A D E S 18

“announced both a substantive E ig hth Amendment rig ht a nd

a specific procedural due process requirement under the Due Process Clause for incompetency claims”). N either the Supreme Court nor our court has held that Ford ’s procedural protections a

pply to adjudication of a n Atkins claim. Bu t

even if they d id, Ford permits states to “require a substantial threshold showing

. . . to trig g er the hearing process.” Ford
, 477 U.S. a t 4 26 (Powell, J
., concurring ); see also id

. at 417 (pluralit y o p i n ion) ( “I t may b e that some hig h threshold showing on behalf of the p risoner will b e found a necessary

means to control the number of nonmeritorious or repetitive claims of insanity .”); see also Panetti
, 551 U.S. at 948. I t is
not unreasonable for I daho to require Piz z uto to make a p rima facie showing of mental r e t ardation before providing him with an evidentiary hearing

. See Blue v. T h a l e r , 665 F .3d 647, 657 (5th Cir. 2011) (“T h e states retain discretion to set g ateway s to full consideration [ of Atkins claims] and to define the manner in which habeas petitioners may develop their claims.”). Here, Piz zuto complains th a t h e had to make a prima facie showing o f mental retardation to re c ei v e an evidentiary h earing

. Such a threshold r e quirement is not unreasonable.

Second, Piz z uto contends tha t h i s equal-protection a nd due-process rig hts were violated because I da ho treats his post-conviction Atkins claim differently than an Atkins claim raised b e fo re trial. I f Piz z uto had raised his Atkins claim before trial, he would h ave automatically been g iven an evidentiary hearing under I d aho Code § 19-2515A. B ut because P i z z u t o raised his claim on post-conviction review, his claim is g overned by I d aho Code § 19-2719. Under that
pro v i s i o n, the state trial court can g rant summary judg ment f o r the state, even b efore an e v identiary hearing
, i f t h e petitioner d o es n ot make a prima f acie showing that h e isP I Z Z U T O V

. B L A D E S 19

entitled to relief. This different treatment, Piz z uto contends, violates his F ourteenth Amendment rig h ts.

Piz z uto’s challeng e fails for at least the following t h r ee

r easons. F irst, we have rejected due-process and equ al

protection challeng es to I daho Code § 1 9-2719. See Rhoades

v. Henry
, 611 F .3d 1133, 1 1 4 4 (9 t h Cir. 2010); Hoffman v

. Arave
, 236 F .3d 5 2 3 ( 9th Cir. 2001). Second, if we were to

assum e that Piz z uto’s equal-protection claim was not foreclosed by these cases, nonetheless Piz z uto overlooks that he is not similarly situated to p re-trial def e n dants—a
necessary part of h is equal-protection claim—because the
state has already obtained his conviction and sentence. Cf. City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985) (noting that t h e Equal Protection Clause o f the F ourteenth Amendment is “ essentiall y a direction that all
persons similarly situated should be treated a like”). T h ird,

e v e n i f he were similarly situated to pre-trial defendants on the theory that he could not have raised Atkins before trial, the classification is not suspect because it is based on conviction status, so the State must o nly show that i t s d i fferential
treatment is rationally related to a leg i t imate state interest. See id

. at 4 40. Piz zuto is attempting to c ollaterally attack his sentence, and “the State ha s a quite leg itimate interest in preventing

. . . abuses of the writ” by a petitioner who “mig ht attempt to use repeate d p e t itions and appeals as a mere delay ing tactic.” Barefoot v. E stelle
, 463 U. S. 8 80, 895 (1 9 8 3 )
, superseded by AEDPA; cf. Brecht v. Abrahamson
, 507 U.S. 619, 635 (1993) (“The reason m o st f requently advanced i n our cases for disting uishing between direct a nd collateral review is the State’s interest in th e finality o f convictions that have survived direct review within the state
court sy stem.”). T he different proce s s e s for raising Atkins claims are rationally related to I daho’s leg itimate interests inP I Z Z U T O V

. B L A D E S 20

f i n a l ity and in preventing a buses of the writ. See W alker v. True
, 399 F .3d 315 (4th Cir. 2 005) ( h o l ding that Virg inia’s

use of a separate Atkins process for crimin a ls whose convictions are final did no t v i o l ate a petitioner’s equalprotection rig hts). I dah o’s capital post-conviction-review
process does not violate Piz zuto’s d ue-process or equalprotection rig hts. See Rhoades , 611 F .3d at 1144.

2

Piz z uto nex t contends that eve n i f he was not entitled to

an evidentiary hearing
, the state court made a n unreasonable d e t e rm ination of facts in lig ht of the evidence under § 2254(d)(2). Under § 2 254(d), we “ ‘ m u s t be p a rticularly deferential to our state-court colleag ues’ o n q u e stions o f fact.” Cunningham v. W

ong , 704 F .3 d 1143, 1164 (9th Cir. 2013) (quoting Taylor
, 366 F .3d at 999–1000). W e will “ not second-g uess a state court’s f

act-finding process unless, a fter review of the state-court record, [ we] det e r m i n e[ ] that the
state court was not merely wrong , but actually u nreasonable.” Id . (quoting Taylor , 366 F .3d at 999).

The I daho Supreme Court found that Piz z uto did not state

a prima facie case of menta l r e t a r d ation because he did not show evidence of an I Q of 70 o r b elow before ag e 18. Pizutto
, 202 P.3d at 651. These finding s w er e not unreasonable based on the evidence b efore the state court. A s the district court below noted, “ P i z z uto’s evidence was

ex c e ptionally

thin” on the element of whether his I Q was 70

or below before ag e 18. The r e c o r d before the I daho Supreme Court contained only o n e I Q test score: a verbal I Q
test score of 72 on the W echsler Adult I ntellig ence S c a l e Revised, administered in 1985, when Piz z uto was almost 29. Pizzuto
, 202 P.3d at 651. I n the same a ffidavit reporting thatP I Z Z U T O V

. B L A D E S 21

score, D r. Emery n o t e d that Piz z uto’s I Q score “falls in the borderline r a n ge of intellectual deficiency ,” but that other
tests “ s u gg est somewhat hig her intellectual potential.” Dr. E mery diag nosed Piz z uto as having “borderline intellec t u al deficiency ,” a clinical term for subaverag e intellect ual functioning distinct f

r o m m ental r etardation. Compare DSMI V-TR 39–49 (mental retardation), w i th DSM-I V-TR 740 (borderline intellectual deficiency ); s e e a l s o A PA, Diagnostic and Statistical Manual of Me n t al Disorders 36–41, 332 (3d ed. 1980). L ater, Dr. E mery confirmed his previous diag nosis and concluded, “I g uess [ Piz z uto’s] native inte l l i ge nce is probably a little hig her than that [ I Q tes t score] .” Piz z uto presented additional evidence to the state court, such a s records of poor performance in school, but no ex pert opined that this poor performance was proof of an I Q of 70 or below.

I n addition, the state-court record c o n t a ined evidence o f P i z z u t o’s long history of seiz ures and drug abuse that likely had a neg ative impact on his intellect u a l abilities. F o r

ex a mple, Dr. Merikang as, who reviewed Piz zuto’s m e dical and psy c holog ical records opined that Piz z uto’s “long history of poly drug a b u s e has caused him further neurolog ical dy sfunction a

nd has c aused him to have substantial defects o f mind and reason.” And the record showed that in 1996, a fter

a c o m p rehensive neuropsy chometric ex aminatio n , D r

. B e a v e r concluded that “[ t] he combination of J erry Piz z uto having a seiz ure d i s order, neurocog n itive limitations that a ffect his im p ulse control and decision-making
, combined w ith the
neurotox ic affects [ sic] of poly substance abuse would have sig nificantly im p acted his abilities to make appropriate decisi o n s a n d to control his behavior in an appropriate a nd community acceptable m a n n er.” A nd in 2004, in a request for more testing
, Dr. B eaver a g ain stressed that “patients that have persistent seiz ure disorders, for ex ample, will declineP I Z Z U T O V

. B L A D E S 22

over time in thei r overall mental abilities.” B a sed on this evidence, the I daho Supreme Court concluded that it was reasonable to inf

e r that Piz zuto’s I Q may have declined between ag e 18—the last time relevant for a diag nosis o f mental retardation—and ag e 29, when his I Q was measured at 72. See Pizzuto , 202 P.3d at 652.

F inally
, the I daho Supreme Court a n a ly z ed an ex pert affidavit that Piz z uto had presented to the state trial court in support of h i s motion for additional psy cholog ical testing

. The court ex amined this evidence even thoug h neither party had arg u ed that the affidavit was proof of mental r etardation. The I daho Supreme Court’s close ex amination of the entire record—e v e n reviewing documents not discussed by the parties—tends to support that the court did not overlo o k o r ig nore evidence. See Taylor , 366 F .3d at 1001.

This is true even thoug h the I daho Supreme Court did not apply the F ly

n n Effect to Piz z uto’s I Q test sco r e s , a n d only implicitly considered the standard error of mea surement (SEM). The F ly

nn Effect is a theory t h a t I Q scores increase

over time, so that a person who t a k e s a n I Q test that has not recently been “normed” may hav e a n artificially inflated I Q

score. See J ames R. F ly

n n, Tethering the Elephant: Capital Cases, IQ, and the F

lynn Effect
, 12 Psy chol. Pub. Pol’y & L

. 170, 173 (20 0 6 )

. “ The standard practice is to deduct 0.3 I Q points per y ear (3 points per decade) to c over the period between the y ear the test was n o r med and the y ear in which the subject took the test.” Id

. Piz z uto asserts that a pplication of the F ly

n n Eff e c t t o h is 1985 verbal score of 72 would result in an I Q below the I daho statute’s c utoff. The standard

error of measurement “describ es the band o f error surrounding an individual’s theoretical ‘ true’ score.” David W e c hsler, W

AIS-R Manual 31–34 (1981). I n other w ords, theP I Z Z U T O V

. B L A D E S 23

measurement “estimates the standard deviatio n o f an individual’s scores on a test if that person could be tested a larg e number of t i m e s , and effects such as practice a nd fatig u e could be r

uled out.” Id. Piz z uto arg ues that his “true score” could be as low as 67, while the I daho Supreme Court

n o t e d t h at the trial court could have inferred a real I Q
any where in the rang e b etween 67 to 77. Pizzuto
, 202 P.3d at 651.

The I daho Supreme Court’s treatment of these two potential adjus t m e n ts in determining whether Piz z u to h ad made a prima facie c ase of mental r etardatio n w a s not

u n r e a s onable. F or one thing
, the F ly nn Effect is not uniformly accepted as scientifically valid. See Maldonado v

. Thaler
, 625 F .3d 2 29, 238 (5th Cir. 2010) ( “ [ N] e ither this
court n or the [ state court] h as r ecog n iz ed the F ly nn Effect a s

s c ientifically valid.”); see also F ly nn, supra , at 174 (“ T h e California court

. . . g o es further than I would in asserting that the F ly n n Effect seems to be g enerally accepted in the c linical field.”). W ithout more evidence in the record on the need to include an adjustment such as the F ly nn Effect in considering the relationship between past I Q tests a nd a person’s true I Q
, the I daho Supreme Court’s refusal to apply it is not g rounds for reversal h ere. F or another, the I daho Supreme Court did
account for SEM w h e n it noted that there was a rang e o f potential true I Qs th a t could be inferred from Piz z u to’s I Q
test score. However, w ithout ex p ert testimony supporting the notion that a downward adjustment was the more appropriate inference, they were unwilling to use S E M to infer that Piz z uto’s true I Q was at the low end of the rang e

.

W e conclude that the I daho Supre m e C o urt’s f actual finding s were not unreasonable in lig ht of the record before it. Althoug h Piz z uto arg ues that there may have been “moreP I Z Z U T O V

. B L A D E S 24

reasonable” inferences that could be drawn from the facts in the record, that is n o t our standard of review under AEDPA. “[ I ] f permissible inferences co u l d be drawn either way , the
st a t e court decision must stand, as its determination of the facts would not b e unrea s o nable.” Hunterson v. DiSabato
, 308 F .3d 236, 250 (3d Cir. 2002).

IV

W e hold that the state court’s decision was not unreasonable under e ither subsection of § 2254(d), and we affirm the district court’s denial o f Piz z u t o ’s habeas corpus petition. 5

AF F IRMED.

5 B ecau se t

h e state- co u rt d ecisio n w as n o t u n reaso n ab le u n d er § 2 2 5 4 (d ), P izzu to w as n o t e n t itled to an ev id en tiary h earin g in th e f ed eral d istrict

co u rt. S ee Pin h o l s t er , 1 3 1 S. Ct. at 1 39 8 –1 4 0 1

. His ch allen g es to th e d i strict co u rt’ s f

actu al f in d in g s an d th e d istrict co u rt’ s o rd er co m p el l i ng d isclo su re o f th e alleg ed ly p riv ileg ed m aterial are m o o t b ecau s e u n der Pin h o lster w e co u ld n o t co n sid er co n clu sio n s o f th e d istrict co u rt o n n ew

ev id en ce th at w as n o t b ef o re th e state co u

rt.