FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, JR.,

Petitioner-Appellant,

v.

RANDY BLADES, Warden, Idaho

Maximum Security Institution,

Respondent-Appellee.

No. 12-99002

D.C. No.

1:05-cv-00516-

BLW

OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

June 27, 2013—Seattle, Washington

Filed September 9, 2013

Before: Raymond C. Fisher, Ronald M. Gould,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould
2 PIZZUTO V. BLADES

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the denial of a 28 U.S.C. § 2254

habeas corpus petition challenging a conviction and capital

sentence based on Atkins v. Virginia, 536 U.S. 304 (2002),

which prohibits the execution of mentally retarded persons.

Idaho state law responded to Atkins by enacting state law

prohibiting the execution of mentally retarded persons and

defining “mentally retarded.” The Idaho Supreme Court

applied that law for the first time in petitioner’s case. 

Observing that the United States Supreme Court in Atkinsleft

the definition of “mentally retarded” broadly open for

consistent state-court decisions, the panel held that the Idaho

Supreme Court’s decision was neither contrary to nor an

unreasonable application of clearly established federal law.

COUNSEL

Daniel J. Broderick, Federal Defender; Joseph Schlesinger

and Joan M. Fisher (argued), Assistant Federal Defenders,

Federal Defender of Eastern District of California,

Sacramento, California, for Petitioner-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PIZZUTO V. BLADES 3

Lawrence G. Wasden, Attorney General of Idaho, and L.

LaMont Anderson (argued), Deputy Attorney General,

Capital Litigation Unit Chief, Boise, Idaho, for

Respondent-Appellee.

OPINION

GOULD, Circuit Judge:

Gerald Ross Pizzuto, Jr., appeals the district court’s denial

of his successive petition for a writ of habeas corpus, in

which he sought relief based on the United States Supreme

Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002). 

In Atkins, the Supreme Court held that the Eighth

Amendment prohibits the execution of mentally retarded

persons.1In response to Atkins, Idaho enacted a law

prohibiting execution ofmentallyretarded criminals. Pizzuto

challenges the Idaho Supreme Court’s decision that his

execution is not barred under that state law. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm

the district court’s denial of Pizzuto’s petition.

 

1 The preferred clinical term is now “intellectual disability.” See, e.g.,

Robert L. Schalock et al., The Renaming of Mental Retardation:

Understanding the Change to the Term Intellectual Disability, 45 Intell.

& Dev. Disabilities 116, 116–17 (2007); see also Rosa’s Law, Pub. L. No.

111-256, 124 Stat. 2643 (2010). We use “mentally retarded” because the

parties use that term and because that term was used in Atkins and much

of its progeny. See, e.g., Atkins, 536 U.S. at 306.
4 PIZZUTO V. BLADES

I

Pizzuto was convicted of two counts of first-degree

murder, two counts of felony murder, one count of robbery,

and one count of grand theft. The Idaho Supreme Court

succinctly summarized what it considered key facts of the

crime as follows:

Pizzuto approached [Berta Louise Herndon

and her nephew, Delbert Dean Herndon] with

a .22 caliber rifle as they arrived at their

mountain cabin and made them enter the

cabin. While inside, he tied the Her[n]dons’

wrists behind their backs and bound their legs

in order to steal their money. Some time later,

he bludgeoned Berta Herndon to death with

hammer blows to her head and killed Del

Herndon by bludgeoning him in the head with

a hammer and shooting him between the eyes. 

Pizzuto murdered the Her[n]dons just for the

sake of killing and subsequently joked and

bragged about the killings to his associates.

Pizzuto v. State, 202 P.3d 642, 645 (Idaho 2008); see also

Pizzuto v. Blades, 673 F.3d 1003, 1004 (9th Cir. 2012). 

Pizzuto was sentenced to death for the murders.

Pizzuto’s conviction and sentence were upheld on direct

appeal, except for his robbery conviction, which the Idaho

Supreme Court held was a lesser-included offense of felony

murder and so merged with that conviction. See State v.

Pizzuto, 810 P.2d 680, 695 (Idaho 1991). Pizzuto’s other

convictions and his death sentence were upheld again on state

and federal post-conviction review. See Pizzuto, 673 F.3d at
PIZZUTO V. BLADES 5

1007; see also Pizzuto v. State, 233 P.3d 86, 88–89 (Idaho

2010) (reciting the case history).

In his fifth state petition for post-conviction review,

relevant here, Pizzuto contended that his death sentence was

prohibited by Atkins. See Pizzuto, 202 P.3d at 644. Pizzuto

moved for summary judgment on that issue. But the state

trial court granted summary judgment in favor of the State

because (1) Pizzuto did not raise a genuine issue of material

fact to support his claim of mental retardation and (2) the

petition was untimely. Id. at 645–46.

The Idaho Supreme Court affirmed the grant of summary

judgment to the State. To survive summary dismissal,

Pizzuto had to present evidence establishing a prima facie

case on each element of the claims on which he bore the

burden of proof. Pizzuto, 202 P.3d at 650. The Idaho

Supreme Court held that “Pizzuto had the burden of showing

that at the time of his murders he was mentally retarded as

defined in Idaho Code § 19–2515A(1)(a) and that his mental

retardation occurred prior to his eighteenth birthday.” Id. at

655. But Pizzuto did not “create a genuine issue of material

fact on each element of his claim” because he did not show

that he “had an IQ of 70 or below at the time of the murders

and prior to his eighteenth birthday.” Id. Pizzuto had

introduced a verbal IQ test score of 72 and asserted that it

should be interpreted as below 70 because the standard error

of measurement for the IQ test was plus or minus five points. 

Id. at 651. But the court rejected this argument, concluding

that “the legislature did not require that the IQ score be within

five points of 70 or below. It required that it be 70 or below.” 

Id. The court also noted that Pizzuto’s IQ could have

decreased in the years between his eighteenth birthday and

when he took the IQ test where he scored 72 because of his
6 PIZZUTO V. BLADES

lifelong drug use and his health problems. Id. at 651–55. 

The Idaho Supreme Court stressed that Pizzuto did not offer

any expert opinion stating that he was mentally retarded at the

time of the murders or before the age of 18. Id. at 655. The

Idaho Supreme Court also affirmed the trial court’s implicit

denial of an evidentiary hearing. Id.

We gave Pizzuto permission to file a successive federal

habeas corpus petition on his Atkins claim. After careful

proceedings, the federal district court denied Pizzuto’s habeas

corpus petition but granted a certificate of appealability on

the Atkins issues. See 28 U.S.C. § 2253(c). This timely

appeal followed.

II

We review de novo the district court’s denial of a habeas

petition. Gulbrandson v. Ryan, 711 F.3d 1026, 1036 (9th Cir.

2013). Review of Pizzuto’s petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) because Pizzuto filed his petition after April 24,

1996. See Lindh v. Murphy, 521 U.S. 320, 322, 336 (1997). 

Under AEDPA, habeas relief can be granted only if the statecourt proceeding adjudicating the claim on the merits

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,”

28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding,” § 2254(d)(2). Under both

subsections, our review is significantly deferential to our

state-court colleagues’ adjudication of the claim. See Schriro

v. Landrigan, 550 U.S. 465, 473 (2007). “The question under

AEDPA is not whether a federal court believes the state
PIZZUTO V. BLADES 7

court’s determination was incorrect but whether that

determination was unreasonable—a substantially higher

threshold.” Id. (citing Williams v. Taylor, 529 U.S. 362, 410

(2000)); see also Williams, 529 U.S. at 409 (“Stated simply,

a federal habeas court making the ‘unreasonable application’

inquiry should ask whether the state court’s application of

clearly established federal law was objectively

unreasonable.”).

We apply this deferential review to the last reasoned

state-court decision. See Ylst v. Nunnemaker, 501 U.S. 797,

803–04 (1991); see also Hibbler v. Benedetti, 693 F.3d 1140,

1146 (9th Cir. 2012), cert. denied, 133 S. Ct. 1262 (2013). 

Here, we review the Idaho Supreme Court’s decision. See

Pizzuto, 202 P.3d 642. Because that court denied Pizzuto’s

Atkins claim on the merits, Pizzuto can rely only on the

record before the state court in order to satisfy the

requirements of § 2254(d). Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011); see also Gulbrandson, 711 F.3d at 1042. 

If the state court’s adjudication of a claim survives review

under § 2254(d), that ends our analysis; the petitioner is not

entitled to an evidentiary hearing on that same claim in

federal court. See Pinholster, 131 S. Ct. at 1398–1401; cf.

Earp v. Ornoski, 431 F.3d 1158, 1166–67 (9th Cir. 2005)

(“Because a federal court may not independently review the

merits of a state court decision without first applying the

AEDPA standards, a federal court may not grant an

evidentiary hearing without first determining whether the

state court’s decision was an unreasonable determination of

the facts.”).
8 PIZZUTO V. BLADES

III

Pizzuto contends that the Idaho Supreme Court’s decision

was an unreasonable application of the law set forth in Atkins

and an unreasonable determination of the facts. We consider

each argument in turn.

A

Pizzuto contends that the Idaho Supreme Court

unreasonablyapplied Atkins and that he should be given relief

under 28 U.S.C. § 2254(d)(1). Under § 2254(d)(1), “[t]he

pivotal question is whether the state court’s application” of

the Supreme Court precedent “was unreasonable,”

Harrington v. Richter, 131 S. Ct. 770, 785 (2011), as opposed

to merely “incorrect or erroneous,” Lockyer v. Andrade,

538 U.S. 63, 75 (2003); see also Williams, 529 U.S. at

409–10 (requiring that the state-court decision be an

“objectively unreasonable” application of clearly established

federal law to grant relief under § 2254(d)). In applying this

standard, we “must ask whether it is possible fairminded

jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of [the

Supreme Court].” Harrington, 131 S. Ct. at 786.

In reviewing the Idaho Supreme Court’s decision, we

must first ascertain what is the clearly established law of

Atkins and then determine whether the Idaho Supreme Court

unreasonably applied that law in Pizzuto’s case. Pizzuto

faces a high barrier on this issue because the Supreme Court,

while outlawing the death penalty for mentally retarded

persons, left definition of that term broadly open for

consistent state-court decisions. And so the Supreme Court

gave some leeway to state legislators to craft their own
PIZZUTO V. BLADES 9

standard for what constitutes mental retardation. As we have

previously explained: “The Supreme Court in Atkins did not

define mental retardation as a matter of federal law. With

respect to mental retardation . . . the Supreme Court left to the

states ‘the task of developing appropriate ways to enforce the

constitutional restriction upon [their] execution of

sentences.’” Moormann v. Schriro, 672 F.3d 644, 648 (9th

Cir. 2012) (alteration in original) (quoting Atkins, 536 U.S. at

317); see also Hill v. Humphrey, 662 F.3d 1335, 1339 (11th

Cir. 2011) (en banc) (“In Atkins, the Supreme Court was

careful not to fix the burden of proof or to impose rigid

definitions of mental retardation. Instead, the Court left it to

the states to develop ‘appropriate’ procedures for mental

retardation determinations . . . .”). More recently, the

Supreme Court reaffirmed that Atkins “did not provide

definitive procedural or substantive guides for determining

when a person who claims mental retardation will be so

impaired as to fall [within Atkins’ compass].” Bobby v. Bies,

556 U.S. 825, 831 (2009) (alteration in original) (internal

quotation marks omitted); see also Schriro v. Smith, 546 U.S.

6, 6–8 (2005) (per curiam).

The “clearly established law” of Atkinsis its holding “that

a person who is mentally retarded may not be sentenced to

death.” Moormann, 672 F.3d at 648. But clearly established

Supreme Court law does not totally hem in the ability of

individual states to define and determine who is mentally

retarded.

Idaho responded to Atkins by enacting Idaho Code § 19-

2515A, which prohibits the execution of mentally retarded

persons. Idaho defines mentally retarded as:
10 PIZZUTO V. BLADES

significantly subaverage general intellectual

functioning that is accompanied by significant

limitations in adaptive functioning in at least

two (2) of the following skill areas:

communication, self-care, home living, social

or interpersonal skills, use of community

resources, self-direction, functional academic

skills, work, leisure, health and safety. The

onset of significant subaverage general

intelligence functioning and significant

limitations in adaptive functioningmust occur

before age eighteen (18) years.

Idaho Code Ann. § 19-2515A(1)(a). “‘Significantly

subaverage general intellectual functioning’ means an

intelligence quotient of seventy (70) or below.” § 19-

2515A(1)(b).

In Pizzuto’s case, the Idaho Supreme Court applied § 19-

2515A for the first time. The Idaho Supreme Court’s use of

this definition was not an unreasonable application of Atkins

because Idaho’s definition of mental retardation “generally

conform[s] to the clinical definitions” cited in Atkins.

2

2

 We do not read the Idaho Supreme Court’s decision as holding that a

defendant must present an IQ test score, as opposed to an actual IQ, of 70

or below. If that had been the case, that court could have disposed of

Pizzuto’s Atkins claim simply by noting the existence of Pizzuto’s test

score. Instead, the Idaho Supreme Court appeared to contemplate that

Pizzuto’s actual IQ might be 70 or below, despite a test score of 72. As

we see it, the Idaho Supreme Court entertained the possibility that Pizzuto

could satisfy Idaho’s statutory definition of mental retardation through

persuasive expert testimony that Pizzuto’s true IQ before he was 18 was
PIZZUTO V. BLADES 11

536 U.S. at 317 n.22. For example, in Atkins, the Supreme

Court cited the American Psychiatric Association’s (APA)

definition of mental retardation, which requires “significantly

subaverage general intellectual functioning . . . that is

accompanied by significant limitations in adaptive

functioning” and “[t]he onset must occur before age 18

years.” Id. at 308 n.3 (quoting APA, Diagnostic and

Statistical Manual of Mental Disorders 41 (4th ed. text rev.

2000) [hereinafter, DSM-IV-TR]). The APA says that the IQ

cutoff for mental retardation is “approximately 70.” Id.

The Atkins Court also pointed to several state statutes

offering protection to mentally retarded persons, illustrating

the national consensus against executing mentally retarded

criminals. 536 U.S. at 313–15 & nn.9–15 (citing inter alia

Ky. Rev. Stat. Ann. § 532.130(2) (1990); Md. Code Ann.,

Art. 27, § 412(e)(3) (1989); N.C. Gen. Stat. § 15A-2005

(2002); Tenn. Code Ann. § 39-13-203(c) (1990)). These state

statutes use an IQ of 70 as the cutoff for mental retardation. 

Because Idaho’s statute is similar, Idaho’s definition of

mental retardation has “support” in Atkins’ “discussions

of . . . the state standards” that the Supreme Court looked to

when describing the class protected by the Eighth

Amendment. Panetti v. Quarterman, 551 U.S. 930, 959

(2007) (rejecting the Fifth Circuit’s incompetency standard in

part because it lacked support in the “discussions of the

common law and the state standards” on which the Supreme

Court’s incompetency law is based).

70 or below. Also, an IQ test score above 70 taken before the age of 18

would not necessarily preclude a subsequent, but still pre-18, onset of

mental retardation as required under Idaho law.
12 PIZZUTO V. BLADES

Despite the similarities between Idaho’s statute and those

relied on by the Supreme Court in Atkins, Pizzuto contends

that the Idaho Supreme Court’s interpretation of § 19-

2515A(1) was an unreasonable application of Atkins because

the Idaho Supreme Court did not consider two statistical

adjustments to his IQ score—the Flynn Effect and the

standard error of measurement (SEM). Although Pizzuto

raises this claim in his discussion of an unreasonable

application of Atkins under § 2254(d)(1), we believe it is

more appropriately discussed as it relates to the factual

analysis under § 2254(d)(2). See Part III.B.2, infra; Green v.

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

same statistical adjustments to the § 2254(d)(2) analysis); but

Hooks v. Workman, 689 F.3d 1148, 1170 (10th Cir. 2012)

(applying these adjustments to the legal standard under

§ 2254(d)(1)). Regardless, Atkins does not mandate any

particular form of calculating IQs, including the use of either

SEM or the Flynn Effect. See, e.g., Bies, 556 U.S. at 831;

Atkins, 536 U.S. at 317; Workman, 689 F.3d at 1170 (“[I]t

cannot be said that the [state court’s] failure to consider and

apply the Flynn Effect is contrary to, or an unreasonable

application of, clearly established federal law.”).

Pizzuto next argues that even if these theories are not

mandated by Atkins, Idaho’s failure to consider them,

combined with Idaho’s rigid 70-point cutoff for mental

retardation, results in a definition that does not sufficiently

protect Atkins’ class. We disagree. Idaho’s law is not outside

of the “national consensus [that] has developed against” the

execution of “offenders possessing a known IQ less than 70.” 

Atkins, 536 U.S. at 316. Rather, as shown above, Idaho’s law

rests comfortably within that consensus. And as stated in

Atkins: “To the extent there is serious disagreement about the

execution of mentally retarded offenders, it is in determining
PIZZUTO V. BLADES 13

which offenders are in fact retarded. . . . Not all people who

claim to be mentally retarded will be so impaired as to fall

within the range of mentally retarded offenders about whom

there is a national consensus.” 536 U.S. at 317. Idaho is

sufficiently within the national consensus in enforcing the

substantive protection of Atkins. The Idaho Supreme Court’s

application of Atkins was not objectively unreasonable.

B

Pizzuto next contends that the Idaho Supreme Court’s

determination of the facts was unreasonable. See 28 U.S.C.

§ 2254(d)(2). He asserts that the state court’s fact-finding

process was deficient and that the state court’s factual

findings were not supported by substantial evidence in the

state-court record. Pizzuto’s burden under § 2254(d)(2) is

heavy. “This is a daunting standard—one that will be

satisfied in relatively few cases.” Taylor v. Maddox, 366 F.3d

992, 1000 (9th Cir. 2004).

1

Pizzuto urges that the state court’s determination of facts

was unreasonable because the state court did not hold an

evidentiary hearing before denying his state petition for postconviction review. “In some limited circumstances, we have

held that the state court’s failure to hold an evidentiary

hearing may render its fact-finding process unreasonable

under § 2254(d)(2).” Hibbler, 693 F.3d at 1147; see also

Taylor, 366 F.3d at 999–1001. For example, in Earp, we held

that a state court’s determination of facts was unreasonable

when it failed to hold an evidentiary hearing because “such a

hearing was necessary to make the credibility determination

upon which rejection of [the petitioner’s] claim depends.” 
14 PIZZUTO V. BLADES

Earp, 431 F.3d at 1169. “But we have never held that a state

court must conduct an evidentiary hearing to resolve every

disputed factual question; such a per se rule would be counter

not only to the deference owed to state courts under AEDPA,

but to Supreme Court precedent.” Hibbler, 693 F.3d at 1147

(discussing Landrigan, 550 U.S. at 471, 476, where “the

Supreme Court held that a state court’s rejection of the

petitioner’s allegations was reasonable for purposes of

§ 2254(d)(2), even though the state court had not held an

evidentiary hearing”); cf. Lambert v. Blodgett, 393 F.3d 943,

970 (9th Cir. 2004) (“Although an evidentiary hearing might

be evidence of an adjudication on the merits, it is a sufficient,

rather than a necessary, condition to AEDPA deference.”). 

The state court does not act unreasonably “so long as the state

court could have reasonably concluded that the evidence

already adduced was sufficient to resolve the factual

question.” Hibbler, 693 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.

Pizzuto was denied an evidentiary hearing at least in part

based on his own litigation choices. After filing his fifth

petition for post-conviction review in the state trial court,

Pizzuto moved for additional neurological testing and an

evidentiary hearing. But at the same time, Pizzuto was

appealing the state trial judge’s failure to recuse himself, so

Pizzuto’s counsel said that she could not ask the trial court

judge to rule on the motion for an evidentiary hearing. The

State moved for summary dismissal of Pizzuto’s petition,

arguing that Pizzuto’s petition was untimely and that, even if

the petition was timely, Pizzuto was not entitled to relief

because he had not created a genuine issue of material fact as

to whether he was mentally retarded under Idaho law. After

losing the interlocutory appeal to disqualify the state trial
PIZZUTO V. BLADES 15

judge, Pizzuto filed a motion for summary judgment, arguing

that based on the evidence already in the record, there was no

genuine issue of material fact and that his execution was

barred because, as a matter of law, he was mentally retarded. 

In the alternative, Pizzuto again asked for an evidentiary

hearing.

The state trial court granted summary judgment for the

State without addressing Pizzuto’s motion for an evidentiary

hearing, and the Idaho Supreme Court affirmed. The

question we must answer is whether this implicit denial of an

evidentiary hearing made the fact-finding process deficient

under AEDPA—that is, whether the determination of facts

was unreasonable based on the specific facts of this case. 

Under the unique facts of this case, we hold that it was not.

Under Idaho law, where one party moves for summary

judgment, the trial court has discretion to grant summary

judgment in favor of the opposing party on that same issue. 

See Pizzuto v. State, 202 P.3d at 650 (quoting Harwood v.

Talbert, 39 P.3d 612, 617 (Idaho 2001)). Here, Pizzuto

moved for summary judgment contending that he is mentally

retarded under § 19-2515A. In so doing, he argued that the

undisputed evidence showed he is mentally retarded as a

matter of law. And the State directly addressed the same

argument in its briefs before the state trial court as well.

In substance, the two motions—both asking the trial

court to summarily decide if there was a genuine issue of fact

on whether Pizzuto is mentally retarded—effectively

stipulated that the facts in the record were sufficient to decide

the case. Under Idaho law, where both parties move for

summary judgment “based upon the same evidentiary facts

and the same issues and theories, they have effectively
16 PIZZUTO V. BLADES

stipulated that there is no genuine issue of material fact and

summary judgment is therefor[e] appropriate.” Kromrei v.

AID Ins. Co., 716 P.2d 1321, 1323 (Idaho 1986); cf.

Surgicenters of Am., Inc. v. Med. Dental Surgeries, Co.,

601 F.2d 1011, 1014 (9th Cir. 1979) (“In other words, this

was a trial on a stipulated record and was so intended by the

parties. There are no genuine issues of material facts. It is a

proper case for disposition through summary judgment.”).

Pizzuto’s summary judgment motion contradicted his

request for an evidentiary hearing because his summary

judgment motion meant that in his view the facts in the record

were sufficient to decide the case. Pizzuto by filing his

summary judgment motion accepted the risk that the trial

court could rule in favor of the state, instead of merely

denying his motion. Under Idaho law, “[i]f a trial court

denies a party’s motion for summary judgment, it has the

discretion to grant summary judgment to the opposing party.”

Pizzuto, 202 P.3d at 656. In these circumstances—most

notably that under Idaho law the trial court had discretion to

treat Pizzuto’s summary judgment motion as a concession

that the record was compete—it was not unreasonable for the

state court to decide the motion for summary judgment

without an evidentiary hearing. “[T]he state court could have

reasonably concluded that the evidence already adduced was

sufficient to resolve the factual question” because Pizzuto

stated that there was no genuine issue of material fact. 

Hibbler, 693 F.3d at 1147.3

3 We note that, while Idaho law may grant the trial court the power to

treat such a motion for summary judgment as a stipulation that the record

is complete, the trial court had the discretion to reject that stipulation and

to hold an evidentiary hearing. Stated another way, the state court could

have held an evidentiary hearing notwithstanding Pizzuto’s decision to file
PIZZUTO V. BLADES 17

Pizzuto also challenges the fact-finding process for two

other reasons, neither of which is persuasive. First, he insists

that the Due Process Clause and Panetti v. Quarterman

require states to impose certain procedures before

adjudicating an Atkins claim. In Panetti, the Supreme Court

held that “Ford [v. Wainwright, 477 U.S. 399 (1986),]

entitled [a petitioner] to certain procedures not provided in

the state court [and] failure to provide these procedures

constituted an unreasonable application of clearly established

Supreme Court law.” 551 U.S. at 948. But the Supreme

Court has never held that the procedural requirements

announced in Ford and Panetti—prohibiting executions of

incompetent criminals—apply in the context of Atkins.

Rather, the Supreme Court has repeatedly said that the states

are to determine both the substantive and procedural regimes

for enforcing Atkins.

4

See, e.g., Bies, 556 U.S. at 831; see

also Hill, 662 F.3d at 1359 (holding that, unlike Atkins, Ford

a motion for summary judgment. But on the facts of this case, we

conclude that it was not required to do so. If this had been a federal court

habeas proceeding under 28 U.S.C. § 2255, and with a similar federal

statute defining mental retardation, we might have concluded that

Pizzuto’s borderline IQ test score, affidavits supporting his case, and his

requests for further testing together were sufficient to show that Pizzuto

had a sufficiently close case to warrant further evidentiary proceedings.

We need not address whether the state court’s decision to deny Pizzuto an

evidentiary hearing, in the face of the cross motions for summary

judgment that had been filed, would have been an unreasonable

determination of the facts if Pizzuto had not effectively stipulated that the

record was complete.

4 The Supreme Court has stated that even though it did not dictate

procedures for adjudicating mental retardation, those procedures “might,

in their application, be subject to constitutional challenge.” Smith, 546

U.S. at 7. But as we explain here, Idaho’s procedures in this case were not

unreasonable.
18 PIZZUTO V. BLADES

“announced both a substantive Eighth Amendment right and

a specific procedural due process requirement under the Due

Process Clause for incompetency claims”). Neither the

Supreme Court nor our court has held that Ford’s procedural

protections apply to adjudication of an Atkins claim. But

even if they did, Ford permits states to “require a substantial

threshold showing . . . to trigger the hearing process.” Ford,

477 U.S. at 426 (Powell, J., concurring); see also id. at 417

(plurality opinion) (“It may be that some high threshold

showing on behalf of the prisoner will be found a necessary

means to control the number of nonmeritorious or repetitive

claims of insanity.”); see also Panetti, 551 U.S. at 948. It is

not unreasonable for Idaho to require Pizzuto to make a prima

facie showing of mental retardation before providing him

with an evidentiary hearing. See Blue v. Thaler, 665 F.3d

647, 657 (5th Cir. 2011) (“The states retain discretion to set

gateways to full consideration [of Atkins claims] and to define

the manner in which habeas petitioners may develop their

claims.”). Here, Pizzuto complains that he had to make a

prima facie showing of mental retardation to receive an

evidentiary hearing. Such a threshold requirement is not

unreasonable.

Second, Pizzuto contends that his equal-protection and

due-process rights were violated because Idaho treats his

post-conviction Atkins claim differently than an Atkins claim

raised before trial. If Pizzuto had raised his Atkins claim

before trial, he would have automatically been given an

evidentiary hearing under Idaho Code § 19-2515A. But

because Pizzuto raised his claim on post-conviction review,

his claim is governed by Idaho Code § 19-2719. Under that

provision, the state trial court can grant summary judgment

for the state, even before an evidentiary hearing, if the

petitioner does not make a prima facie showing that he is
PIZZUTO V. BLADES 19

entitled to relief. This different treatment, Pizzuto contends,

violates his Fourteenth Amendment rights.

Pizzuto’s challenge fails for at least the following three

reasons. First, we have rejected due-process and equalprotection challenges to Idaho Code § 19-2719. See Rhoades

v. Henry, 611 F.3d 1133, 1144 (9th Cir. 2010); Hoffman v.

Arave, 236 F.3d 523 (9th Cir. 2001). Second, if we were to

assume that Pizzuto’s equal-protection claim was not

foreclosed by these cases, nonetheless Pizzuto overlooks that

he is not similarly situated to pre-trial defendants—a

necessary part of his 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 the Equal Protection Clause of the

Fourteenth Amendment is “essentially a direction that all

persons similarly situated should be treated alike”). Third,

even if 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 only show that its differential

treatment is rationally related to a legitimate state interest. 

See id. at 440. Pizzuto is attempting to collaterally attack his

sentence, and “the State has a quite legitimate interest in

preventing . . . abuses of the writ” by a petitioner who “might

attempt to use repeated petitions and appeals as a mere

delaying tactic.” Barefoot v. Estelle, 463 U.S. 880, 895

(1983), superseded by AEDPA; cf. Brecht v. Abrahamson,

507 U.S. 619, 635 (1993) (“The reason most frequently

advanced in our cases for distinguishing between direct and

collateral review is the State’s interest in the finality of

convictions that have survived direct review within the state

court system.”). The different processes for raising Atkins

claims are rationally related to Idaho’s legitimate interests in
20 PIZZUTO V. BLADES

finality and in preventing abuses of the writ. See Walker v.

True, 399 F.3d 315 (4th Cir. 2005) (holding that Virginia’s

use of a separate Atkins process for criminals whose

convictions are final did not violate a petitioner’s equalprotection rights). Idaho’s capital post-conviction-review

process does not violate Pizzuto’s due-process or equalprotection rights. See Rhoades, 611 F.3d at 1144.

2

Pizzuto next contends that even if he was not entitled to

an evidentiary hearing, the state court made an unreasonable

determination of facts in light of the evidence under

§ 2254(d)(2). Under § 2254(d), we “‘must be particularly

deferential to our state-court colleagues’ on questions of

fact.” Cunningham v. Wong, 704 F.3d 1143, 1164 (9th Cir.

2013) (quoting Taylor, 366 F.3d at 999–1000). We will “not

second-guess a state court’s fact-finding process unless, after

review of the state-court record, [we] determine[] that the

state court was not merelywrong, but actually unreasonable.” 

Id. (quoting Taylor, 366 F.3d at 999).

The Idaho Supreme Court 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. 

Pizutto, 202 P.3d at 651. These findings were not

unreasonable based on the evidence before the state court. As

the district court below noted, “Pizzuto’s evidence was

exceptionally thin” on the element of whether his IQ was 70

or below before age 18. The record before the Idaho

Supreme Court contained only one IQ test score: a verbal IQ

test score of 72 on the Wechsler Adult Intelligence Scale

Revised, administered in 1985, when Pizzuto was almost 29. 

Pizzuto, 202 P.3d at 651. In the same affidavit reporting that
PIZZUTO V. BLADES 21

score, Dr. Emery noted that Pizzuto’s IQ score “falls in the

borderline range of intellectual deficiency,” but that other

tests “suggest somewhat higher intellectual potential.” Dr.

Emery diagnosed Pizzuto as having “borderline intellectual

deficiency,” a clinical term for subaverage intellectual

functioning distinct frommental retardation. Compare DSMIV-TR 39–49 (mental retardation), with DSM-IV-TR 740

(borderline intellectual deficiency); see alsoAPA, Diagnostic

and Statistical Manual of Mental Disorders 36–41, 332 (3d

ed. 1980). Later, Dr. Emery confirmed his previous diagnosis

and concluded, “I guess [Pizzuto’s] native intelligence is

probably a little higher than that [IQ test score].” Pizzuto

presented additional evidence to the state court, such as

records of poor performance in school, but no expert opined

that this poor performance was proof of an IQ of 70 or below.

In addition, the state-court record contained evidence of

Pizzuto’s long history of seizures and drug abuse that likely

had a negative impact on his intellectual abilities. For

example, Dr. Merikangas, who reviewed Pizzuto’s medical

and psychological records opined that Pizzuto’s “long history

of poly drug abuse has caused him further neurological

dysfunction and has caused him to have substantial defects of

mind and reason.” And the record showed that in 1996, after

a comprehensive neuropsychometric examination,Dr.Beaver

concluded that “[t]he combination of Jerry Pizzuto having a

seizure disorder, neurocognitive limitations that affect his

impulse control and decision-making, combined with the

neurotoxic affects [sic] of polysubstance abuse would have

significantly impacted his abilities to make appropriate

decisions and to control his behavior in an appropriate and

community acceptable manner.” And in 2004, in a request

for more testing, Dr. Beaver again stressed that “patients that

have persistent seizure disorders, for example, will decline
22 PIZZUTO V. BLADES

over time in their overall mental abilities.” Based on this

evidence, the Idaho Supreme Court concluded that it was

reasonable to infer that Pizzuto’s IQ may have declined

between age 18—the last time relevant for a diagnosis of

mental retardation—and age 29, when his IQ was measured

at 72. See Pizzuto, 202 P.3d at 652.

Finally, the Idaho Supreme Court analyzed an expert

affidavit that Pizzuto had presented to the state trial court in

support of his motion for additional psychological testing. 

The court examined this evidence even though neither party

had argued that the affidavit was proof of mental retardation. 

The Idaho Supreme Court’s close examination of the entire

record—even reviewing documents not discussed by the

parties—tends to support that the court did not overlook or

ignore evidence. See Taylor, 366 F.3d at 1001.

This is true even though the Idaho Supreme Court did not

apply the Flynn Effect to Pizzuto’s IQ test scores, and only

implicitly considered the standard error of measurement

(SEM). The Flynn Effect is a theory that IQ scores increase

over time, so that a person who takes an IQ test that has not

recently been “normed” may have an artificially inflated IQ

score. See James R. Flynn, Tethering the Elephant: Capital

Cases, IQ, and the Flynn Effect, 12 Psychol. Pub. Pol’y & L.

170, 173 (2006). “The standard practice is to deduct 0.3 IQ

points per year (3 points per decade) to cover the period

between the year the test was normed and the year in which

the subject took the test.” Id. Pizzuto asserts that application

of the Flynn Effect to his 1985 verbal score of 72 would

result in an IQ below the Idaho statute’s cutoff. The standard

error of measurement “describes the band of error

surrounding an individual’s theoretical ‘true’ score.” David

Wechsler, WAIS-R Manual 31–34 (1981). In other words, the
PIZZUTO V. BLADES 23

measurement “estimates the standard deviation of an

individual’s scores on a test if that person could be tested a

large number of times, and effects such as practice and

fatigue could be ruled out.” Id. Pizzuto argues that his “true

score” could be as low as 67, while the Idaho Supreme Court

noted that the trial court could have inferred a real IQ

anywhere in the range between 67 to 77. Pizzuto, 202 P.3d at

651.

The Idaho Supreme Court’s treatment of these two

potential adjustments in determining whether Pizzuto had

made a prima facie case of mental retardation was not

unreasonable. For one thing, the Flynn Effect is not

uniformly accepted as scientifically valid. See Maldonado v.

Thaler, 625 F.3d 229, 238 (5th Cir. 2010) (“[N]either this

court nor the [state court] has recognized the Flynn Effect as

scientifically valid.”); see also Flynn, supra, at 174 (“The

California court . . . goes further than I would in asserting that

the Flynn Effect seems to be generally accepted in the clinical

field.”). 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. For another, the Idaho Supreme Court did

account for SEM when it noted that there was a range of

potential true IQs that could be inferred from Pizzuto’s IQ

test score. However, without expert testimony supporting the

notion that a downward adjustment was the more appropriate

inference, they were unwilling to use SEM to infer that

Pizzuto’s true IQ was at the low end of the range.

We conclude that the Idaho Supreme Court’s factual

findings were not unreasonable in light of the record before

it. Although Pizzuto argues that there may have been “more
24 PIZZUTO V. BLADES

reasonable” inferences that could be drawn from the facts in

the record, that is not our standard of review under AEDPA. 

“[I]f permissible inferences could be drawn either way, the

state court decision must stand, as its determination of the

facts would not be unreasonable.” Hunterson v. DiSabato,

308 F.3d 236, 250 (3d Cir. 2002).

IV

We hold that the state court’s decision was not

unreasonable under either subsection of § 2254(d), and we

affirm the district court’s denial of Pizzuto’s habeas corpus

petition.5

AFFIRMED.

5 Because the state-court decision was not unreasonable under § 2254(d),

Pizzuto was not entitled to an evidentiary hearing in the federal district

court. See Pinholster, 131 S. Ct. at 1398–1401. His challenges to the

district court’s factual findings and the district court’s order compelling

disclosure of the allegedly privileged material are moot because under

Pinholster we could not consider conclusions of the district court on new

evidence that was not before the state court.