Pizzuto v. Yordy, No. 16-36082

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PER CURIAM.
• Citation: 947 F.3d 510
• Parties: Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. Keith YORDY, Warden, Idaho Maximum Security Institution, Respondent-Appellee.
• Docket Number: No. 16-36082
• Decision Date: 14 August 2019

947 F.3d 510

Gerald Ross PIZZUTO, Jr., Petitioner-Appellant,
v.
Keith YORDY, Warden, Idaho Maximum Security Institution, Respondent-Appellee.

No. 16-36082

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2018 San Francisco, California
Filed August 14, 2019
Amended December 31, 2019

ORDER

The panel has voted to deny the petition for panel rehearing. Judge Gould and Judge Rawlinson have voted to deny the petition for rehearing en banc and Judge Fisher has so recommended.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc, filed November 27, 2019 (Dkt. 71), are denied.

The opinion filed August 14, 2019, and reported at 933 F.3d 1166, is amended. An amended opinion is filed concurrently with this order.

No further petitions for rehearing may be filed.

PER CURIAM:

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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins , the Supreme Court held that the Eighth Amendment prohibits the execution of intellectually disabled persons.¹ In response to Atkins , Idaho enacted a law prohibiting the execution of intellectually disabled offenders. See Idaho Code § 19-2515A. Pizzuto challenges the Idaho Supreme Court’s decision that his execution is not barred under that state law. See Pizzuto v. State (Pizzuto I ), 146 Idaho 720, 202 P.3d 642 (2008). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court’s denial of Pizzuto’s petition. Because the record does not establish that the state court’s adjudication of Pizzuto’s Atkins claim 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," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,"

947 F.3d 515

habeas relief may not be granted. See 28 U.S.C. § 2254(d). Because habeas relief is barred under § 2254(d), we do not address whether Pizzuto is intellectually disabled, nor whether his execution would violate the Eighth Amendment.

BACKGROUND

In 1986, a state trial court judge sentenced Pizzuto to death for the murders of Berta Herndon and her nephew Del Herndon. See Pizzuto I , 202 P.3d at 645. The Idaho Supreme Court summarized the murders as follows:

Pizzuto approached [the Herndons] 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.

Id.²

Sixteen years later, the Supreme Court decided Atkins , holding that executions of intellectually disabled persons constitute "cruel and unusual punishments" prohibited by the Eighth Amendment to the United States Constitution. See U.S. Const. amend. VIII. Citing "powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal," the Court concluded that "a national consensus has developed against" such executions. Atkins , 536 U.S. at 316, 122 S.Ct. 2242.

The Court, however, did not adopt any single definition of intellectual disability. It noted that states’ "statutory definitions of mental retardation [we]re not identical, but generally conform[ed] to the clinical definitions set forth" by the American Association on Mental Retardation (AAMR) and the American Psychiatric Association. See id. at 317 n.22, 122 S.Ct. 2242. At the time, the AAMR – now known as the American Association on Intellectual and Developmental Disabilities (AAIDD) – defined intellectual disability as follows:

Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.

Id. at 308 n.3, 122 S.Ct. 2242 (quoting AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992)). The American Psychiatric Association’s definition was similar:

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at

947 F.3d 516

least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.

Id. (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000) (DSM-IV)). The Court noted that "an IQ between 70 and 75 or lower ... is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition," id. at 309 n.5, 122 S.Ct. 2242, and that " ‘[m]ild’ mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70," id. at 308 n.3, 122 S.Ct. 2242 (quoting DSM-IV at 42–43).

Atkins , however, did not expressly adopt these clinical definitions of intellectual disability. The Court instead left that question to the states:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. As was our approach in Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Id. , at 405, 416–417, 106 S.Ct. 2595.

Id. at 317, 122 S.Ct. 2242 (alterations in original).

Shortly after the Atkins decision, Idaho adopted a statute prohibiting imposition of the death penalty for intellectually disabled offenders. See 2003 Idaho Sess. Laws 399 (codified at Idaho Code § 19-2515A(3) ). The statute defines intellectual disability as follows:

(a) "Mentally retarded" means significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two (2) of the 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 functioning must occur before age eighteen (18) years.

(b) "Significantly subaverage general intellectual functioning" means an intelligence quotient of seventy (70) or below.

Id. at 308, 122 S.Ct. 2242 (codified at Idaho Code § 19-2515A(1) ).

In light of Atkins , Pizzuto filed a fifth petition for state post-conviction relief, challenging his death sentence on the ground that he was intellectually disabled. See Pizzuto I , 202 P.3d at 645. In July 2003, the state moved to summarily dismiss Pizzuto’s petition. See id. at 646. In August 2003, Pizzuto moved to disqualify the state trial court judge. See id. In October 2004, Pizzuto moved for additional psychological testing, asking that he be transported to an appropriate medical facility for testing in connection with a neuropsychiatric evaluation by Dr. James R. Merikangas. Pizzuto did not notice the motion

947 F.3d 517

for a hearing, however. See id. at 655.³ In January 2005, the state trial court denied the motion for disqualification. See id. at 646.

In seeking dismissal of Pizzuto’s petition, the state argued that the petition was untimely under Idaho law and, alternatively, that Pizzuto had failed to establish a prima face case of intellectual disability under the new Idaho statute.⁴ With...