United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER ON REMAND
Lynn Winmill Chief Judge
Gerald Ross Pizzuto, Jr., is an Idaho state prisoner under a
sentence of death. Before the Court is Pizzuto's
Successive Petition for Writ of Habeas Corpus. The Successive
Petition asserts that Pizzuto is intellectually disabled and,
therefore, that his execution is prohibited by the Eighth
Amendment. See Atkins v. Virginia, 536 U.S. 304
(2002). The Court previously denied the Successive
Petition after a four-day evidentiary hearing, concluding
that Pizzuto was not entitled to habeas relief on his
Atkins claim, either under 28 U.S.C. § 2254(d)
or under de novo review. (Dkt. 228.) The Court later denied
Pizzuto's motion to alter or amend the judgment. (Dkt.
233.) Pizzuto appealed.
September 9, 2013, the Ninth Circuit affirmed this
Court's decision, holding that, under 28 U.S.C. §
2254(d), the Idaho Supreme Court's rejection of
Pizzuto's Atkins claim was not contrary to, or
an unreasonable application of, clearly-established Supreme
Court precedent, nor was it based on an unreasonable
determination of the facts. Pizzuto v. Blades, 729
F.3d 1211, 1224 (9th Cir. 2013), op. withdrawn, 758
F.3d 1178 (9th Cir. 2014). Shortly thereafter, the Supreme
Court granted a writ of certiorari in Hall v.
Florida, 134 S.Ct. 471 (cert. granted Oct 21, 2013). The
Ninth Circuit then withdrew its opinion and deferred
submission pending the Hall decision. (Dkt. 257.)
2014, the Supreme Court issued its decision in Hall v.
Florida, 134 S.Ct. 1986 (2014). In Hall, the
Court held, on review of an Atkins claim, that
Florida's intellectual disability rule-which prohibited
further exploration of a petitioner's Atkins
claim if the petitioner's intelligence quotient
“IQ” test score was above a hard cut-off of 70,
without taking into consideration the Standard Error of
Measurement (SEM)- violated the Eighth Amendment.
Id. at 1994-95. That is, the Eighth Amendment
requires that if an individual asserting an Atkins
claim has an IQ test score within the SEM of a score of 70,
that individual must be allowed the opportunity to present
other evidence of intellectual disability.
Hall, the Ninth Circuit withdrew its previous
opinion in this case, vacated this Court's decision on
Pizzuto's Atkins claim, and remanded for
consideration of the applicability, if any, of Hall
to the Successive Petition. (Dkt. 261.)
Court ordered the parties to file supplemental briefs
addressing the following issues: “(1) whether Hall
v. Florida applies retroactively to this case; (2)
whether and to what extent Hall affects this
Court's consideration of Petitioner's claim under 28
U.S.C. § 2254(d)(1) or under de novo review; and (3)
whether the previous evidentiary hearing held in this action
is sufficient to resolve the issues in this case, whether a
new evidentiary hearing is permissible and warranted, what
additional evidence should be considered, and what that
evidence would show.” (Dkt. 265 at 1-2.) The parties
have filed their briefing, and the issue is now ripe for
decision. (See Dkt. 268, 276, 279.)
carefully reviewed the record, including the state court
record, the Court concludes that the parties have adequately
presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D.
Idaho L. Civ. R. 9.2(h)(5) (“Motions and petitions
shall be deemed submitted and shall be determined upon the
pleadings, briefs, and record. The court, at its discretion,
may order oral argument on any issue or claim.”).
Accordingly, the Court enters the following Order concluding
that the Supreme Court's decision in Hall v.
Florida does not alter the Court's previous decision
in this case.
Habeas Corpus Standard of Law
habeas corpus relief may be granted on claims adjudicated on
the merits in a state court judgment when the federal court
determines that the petitioner “is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Under §
2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas
relief is further limited to instances where the state
court's adjudication of the petitioner's claim
(1) 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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). Although a federal habeas court
reviews the state court's “last reasoned
decision” in determining whether a petitioner is
entitled to relief. Ylst v. Nunnemaker, 501 U.S.
797, 804 (1991), a state court need not “give reasons
before its decision can be deemed to have been
‘adjudicated on the merits'” under §
2254(d). Harrington v. Richter, 562 U.S. 86, 100
party contests the state court's legal conclusions,
including application of the law to the facts, §
2254(d)(1) governs. That section consists of two alternative
tests: the “contrary to” test and the
“unreasonable application” test.
the first test, a state court's decision is
“contrary to” clearly established federal law
“if the state court applies a rule different from the
governing law set forth in [the Supreme Court's] cases,
or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable
facts.” Bell v. Cone, 535 U.S. 685, 694
the second test, to satisfy the “unreasonable
application” clause of § 2254(d)(1), the
petitioner must show that the state court-although
identifying “the correct governing legal rule”
from Supreme Court precedent-nonetheless “unreasonably
applie[d] it to the facts of the particular state
prisoner's case.” Williams (Terry) v.
Taylor, 529 U.S. 362, 407 (2000).
“Section 2254(d)(1) provides a remedy for instances in
which a state court unreasonably applies [Supreme Court]
precedent; it does not require state courts to extend that
precedent or license federal courts to treat the failure to
do so as error.” White v. Woodall, 134 S.Ct.
1697, 1706 (2014) (emphasis omitted).
federal court cannot grant habeas relief simply because it
concludes, in its independent judgment, that the decision is
incorrect or wrong; rather, the state court's application
of federal law must be objectively unreasonable to warrant
relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003);
Bell, 535 U.S. at 694. If there is any possibility
that fair-minded jurists could disagree on the correctness of
the state court's decision, then relief is precluded by
§ 2254(d)(1). Richter, 562 U.S. at 102. The
Supreme Court has emphasized that “even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. (internal
citation omitted). To be entitled to habeas relief under
§ 2254(d)(1), “a state prisoner must show that the
state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
White, 134 S.Ct. at 1702 (internal quotation marks
the source of clearly established federal law must come from
the holdings of the United States Supreme Court, circuit
precedent may be persuasive authority for determining whether
a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200
F.3d 597, 600-01 (9th Cir. 2000). However, circuit law may
not be used “to refine or sharpen a general principle
of Supreme Court jurisprudence into a specific legal rule
that th[e] Court has not announced.” Marshall v.
Rodgers, 133 S.Ct. 1446, 1450 (2013).
the facts, the United States Supreme Court has clarified
“that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 180 (2011). This means that evidence not
presented to the state court may not be introduced on federal
habeas review if a claim was adjudicated on the merits in
state court and if the underlying factual determination of
the state court was not unreasonable. See Murray v.
Schriro, 745 F.3d 984, 999 (9th Cir. 2014).
petitioner contests the reasonableness of the state
court's factual determinations, the petitioner must show
that the state court decision was based upon factual
determinations that were “unreasonable . . . in light
of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). A
“state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010).
United States Court of Appeals for the Ninth Circuit has
identified five types of unreasonable factual determinations
that result from procedural flaws that occurred in state
court proceedings: (1) when state courts fail to make a
finding of fact; (2) when courts mistakenly make factual
findings under the wrong legal standard; (3) when “the
fact-finding process itself is defective, ” such as
when a state court “makes evidentiary findings without
holding a hearing”; (4) when courts “plainly
misapprehend or misstate the record in making their findings,
and the misapprehension goes to a material factual issue that
is central to petitioner's claim”; or (5) when
“the state court has before it, yet apparently ignores,
evidence that supports petitioner's claim.”
Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir.
2004). State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting this
presumption by clear and convincing evidence. 28 U.S.C.
strict deferential standard of § 2254(d) applies to
habeas claims except in the following narrow circumstances:
(1) where the state appellate court did not decide a
properly-asserted federal claim; (2) where the state
court's factual findings are unreasonable under §
2254(d)(2); or (3) where an adequate excuse for the
procedural default of a claim exists. Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In those
circumstances, the federal district court reviews the claim
de novo and, as in the pre- AEDPA era, may draw from both
United States Supreme Court and circuit precedent, limited
only by the non-retroactivity rule of Teague v.
Lane, 489 U.S. 288 (1989).
de novo review, if the factual findings of the state court
are not unreasonable, the Court must apply the presumption of
correctness found in 28 U.S.C. § 2254(e)(1) to any facts
found by the state courts. Pirtle, 313 F.3d at 1167.
On the other hand, if a state court factual determination is
unreasonable, the federal court is not limited by §
2254(e)(1). Rather, the federal district court may consider
evidence outside the state court record, except to the extent
that § 2254(e)(2) might apply. Murray, 745 F.3d
Standard of Law Regarding Claims of Intellectual
Eighth Amendment to the Constitution prohibits cruel and
unusual punishment. U.S. Const., amend. VIII. In 2002, the
United States Supreme Court determined that the Eighth
Amendment forbids the execution of individuals who were
intellectually disabled at the time of their crime.
Atkins, 536 U.S. at 321. That is, intellectually
disabled criminals are “categorically excluded from
execution.” Id. at 318.
capital habeas petitioner may show that he was intellectually
disabled at the time of the crime-and therefore not subject