Whether Atkins and the Eighth Amendment mandated the use of clinical standards for the determination of subaverage intelligence as measured by intelligence quotient (IQ) scores, including the standard error of measurement (SEM) at the time of the pertinent state court decision in 2008

QUESTIONS PRESENTED Intellectual disability is comprised of three features: 1) subaverage intellectual functioning; 2) significant limitations in adaptive skills; and 3) manifestation before age 18. See Atkins v. Virginia, 536 U.S. 304, 318 (2002). Below, the Ninth Circuit denied relief on Petitioner’s Atkins claim because it believed that even though the Idaho Supreme Court’s rejection of the claim was inconsistent with the science that existed at the time, its decision on the first and third prongs was not so unreasonable as to satisfy the federal habeas standard. The questions presented are: 1. In determining intellectual disability, at the time of the pertinent state court decision in 2008, whether Atkins and the Eighth Amendment mandated the use of clinical standards for the determination of subaverage intelligence as measured by intelligence quotient (“IQ”) scores, including the standard error of measurement (“SEM”)? 2. Atkins acknowledged that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills ... that became manifest before age 18.” 536 USS. at 318. Affidavits in the state court record averred that before petitioner reached age 18 he had significant academic difficulties and failing grades, and was forced to repeat two grades in school. No pre-18 PETITION FOR WRIT OF CERTIORARI — Page i IQ tests exist, but an IQ test at age 29 was 72. Expert affidavits speculated that Petitioner’s mental functioning could have declined over the years since he turned 18 due to epilepsy and drug abuse, but no testing occurred and no expert averred that Petitioner’s IQ had declined. In denying a hearing based in part on its view that Petitioner failed to establish the pre-18 onset of adaptive limitations because of such speculation, did the Idaho Supreme Court make an unreasonable determination of fact? PETITION FOR WRIT OF CERTIORARI — Page ii