Gerald Pizzuto, Jr. v. Randy Blades , 729 F.3d 1211 ( 2013 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GERALD ROSS PIZZUTO, JR.,                No. 12-99002
    Petitioner-Appellant,
    D.C. No.
    v.                       1:05-cv-00516-
    BLW
    RANDY BLADES, Warden, Idaho
    Maximum Security Institution,
    Respondent-Appellee.           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 Atkins left
    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.1 In response to Atkins, Idaho enacted a law
    prohibiting execution of mentally retarded 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 state-
    court 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
    unreasonably applied 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 Atkins is 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 functioning must 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 post-
    conviction 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 equal-
    protection 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 equal-
    protection rights). Idaho’s capital post-conviction-review
    process does not violate Pizzuto’s due-process or equal-
    protection 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 merely wrong, 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 from mental retardation. Compare DSM-
    IV-TR 39–49 (mental retardation), with DSM-IV-TR 740
    (borderline intellectual deficiency); see also APA, 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.