Thomas Creech v. Tim Richardson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS E. CREECH, No. 10-99015

Petitioner-Appellant,

D.C. No.

v. 1:99-cv-00224-BLW

TIM RICHARDSON, Warden,

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 September 20, 2021

Pasadena, California

Filed July 20, 2022

Before: William A. Fletcher, Jay S. Bybee, and

Morgan Christen, Circuit Judges.

Opinion by Judge W. Fletcher

2 CREECH V. RICHARDSON

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of Thomas

Eugene Creech’s second amended habeas corpus petition

challenging his death sentence.

In 1981, while serving two life sentences for multiple

convictions for first-degree murder, Creech beat a fellow

inmate to death. After pleading guilty, he was sentenced to

death in Idaho state court. Creech obtained federal habeas

relief with respect to his sentence, and was resentenced to

death in 1995. In a second petition, Creech thereafter

unsuccessfully sought federal habeas relief in the district

court.

The district court granted certificates of appealability

(COAs) as to two issues.

First, Creech argued that the district court improperly

denied part of Claim 4, in which he alleged that his attorneys

provided ineffective assistance of counsel (IAC) at his 1995

resentencing by failing to investigate and present mitigation

evidence in a timely and adequate fashion, failing to hire a

mitigation specialist, and relying on an unqualified mental

health expert. The Idaho Supreme Court rejected Creech’s

IAC claims at the 1995 resentencing, holding that Creek

failed to prove either deficient performance or prejudice

under Strickland v. Washington, 466 U.S. 668 (1984). In

*

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

been prepared by court staff for the convenience of the reader.

CREECH V. RICHARDSON 3

denying habeas relief prior to this court’s remand under

Martinez v. Ryan, 566 U.S. 1 (2012), the district court

reaffirmed that holding. The panel agreed with the district

court that the Idaho Supreme Court reasonably found a lack

of prejudice under the second prong of Strickland. The panel

held further that under 28 U.S.C. § 2254(e)(2) the district

court was correct in declining to hold an evidentiary hearing

on the new evidence that Creech sought to introduce to

bolster his IAC resentencing claim.

Second, Creech argued under Martinez that five allegedly

procedurally defaulted sub-claims of IAC at the 1995

resentencing should be heard on the merits. Under Martinez,

a federal habeas court may find cause to excuse a procedural

default where (1) the underlying ineffective assistance claim

is substantial; (2) the petitioner was not represented or had

ineffective counsel during the state post-conviction review

(PCR) proceeding; (3) the state PCR proceeding was the

initial review proceeding; and (4) state law required (or

forced as a practical matter) the petitioner to bring the claim

in the initial review collateral proceeding. Only the first and

second requirements were at issue here, and in practical

effect, the prejudice analysis under both of those

requirements is the same—there must be a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. At the

time of the district court’s decision after this court’s Martinez

remand, the court could consider new evidence supporting a

claim of IAC by PCR counsel in determining whether a

petitioner satisfies the requirements of Martinez without

running afoul of 28 U.S.C. § 2254(e)(2) and Cullen v.

Pinholster, 563 U.S. 170 (2011). After the panel heard oral

argument, however, the Supreme Court decided Shinn v.

Ramirez, 142 S. Ct. 1718 (2022), greatly restricting the

4 CREECH V. RICHARDSON

circumstances in which a federal habeas court deciding

Martinez claims may consider evidence beyond that already

contained in the state court record. The district court

considered all of the proffered new evidence and held that it

was insufficient to transform into a new IAC claim the part of

Claim 4 that alleged IAC during Creech’s 1995 resentencing.

The district court held that the sub-claims at issue in this

appeal were therefore not procedurally defaulted new claims

and that Martinez did not apply. The panel wrote that even

in the absence of Ramirez, it would have agreed with the

district court because most of the new evidence introduced on

federal habeas review in support of Creech’s argument that he

suffers from an organic disorder was duplicative of evidence

introduced during the 1995 resentencing. The panel reached

the same result under Ramirez. Because it could not consider

the evidence presented for the first time to the district court,

Creech’s Martinez claim necessarily fails.

Creech sought to appeal four uncertified issues.

The panel denied a COA as to Creech’s claims (1) that the

district court erred in summarily denying his motion for

reconsideration of its denial of his second habeas petition,

(2) that the Idaho Supreme Court violated the Due Process

Clause by refusing to allow him to withdraw his guilty plea

prior to his first resentencing, and (3) that the duration of

Creech’s confinement for his murder constitutes cruel and

unusual punishment in violation of the Eighth Amendment.

The panel granted a COA as to Creech’s argument under

Magwood v. Patterson, 561 U.S. 320 (2010), that claims in

his second federal habeas petition attacking his guilty plea are

not “second or successive” under 28 U.S.C. § 2244(b) and

should be decided on the merits. Based on Magwood and

CREECH V. RICHARDSON 5

later cases decided by this circuit, the panel concluded that

because Creech’s original sentence was vacated and a new

sentence was imposed, the claims are not barred as second or

successive. Rather than remand the claims to the district

court, the panel denied them, holding that the Idaho courts

(1) did not unreasonably find Creech’s arguments as to trial

counsel’s purported conflict of interest to be without merit,

(2) did not unreasonably conclude that Creech failed to show

that trial counsel should have moved to withdraw his guilty

plea on the ground that Creech was incompetent, (3) did not

unreasonably conclude that Creech failed to show that IAC at

the guilt phase on the basis of trial counsel’s purported failure

to communicate with him, and (4) did not unreasonably reject

Creech’s claim that counsel’s failure to investigate his

purported history of violence led him to plead guilty rather

than insist on going to trial on a theory of self-defense.

COUNSEL

Jonah J. Horwitz (argued), Bruce D. Livingston, and Teresa

A. Hampton, Federal Defender Services of Idaho, Capital

Habeas Unit, Boise, Idaho; Denise Young, Tucson, Arizona;

for Petitioner-Appellant.

L. LaMont Anderson (argued), Chief, Capital Litigation Unit;

Lawrence G. Wasden, Attorney General; Attorney General’s

Office, Boise, Idaho; for Respondent-Appellee.

6 CREECH V. RICHARDSON

OPINION

W. FLETCHER, Circuit Judge:

Petitioner-Appellant Thomas Eugene Creech appeals the

denial of his 28 U.S.C. § 2254 petition for a writ of habeas

corpus. In 1981, while serving two life sentences for multiple

convictions of first-degree murder, Creech beat a fellow

inmate to death. After pleading guilty, he was sentenced to

death in Idaho state court. Creech obtained federal habeas

relief with respect to his sentence. He was resentenced to

death in 1995. After the reimposition of the death penalty in

1995, in a second petition Creech unsuccessfully sought

federal habeas relief in federal district court.

The district court granted certificates of appealability

(“COAs”) as to two issues, and Creech appeals both of those

issues. First, Creech argues that the district court improperly

denied part of Claim 4 of his habeas petition, in which he

alleges that his attorneys provided ineffective assistance of

counsel (“IAC”) at his 1995 resentencing. Second, Creech

argues under Martinez v. Ryan, 566 U.S. 1 (2012), that five

allegedly procedurally defaulted sub-claims of IAC at the

1995 resentencing should be heard on the merits.

In addition, Creech seeks to appeal four uncertified issues.

First, Creech argues that the district court erred in summarily

denying reconsideration of its decision denying relief under

Martinez. Second, Creech argues that the Idaho courts

unconstitutionally prevented him from withdrawing his guilty

plea. Third, Creech argues under Magwood v. Patterson,

561 U.S. 320 (2010), that claims in his second federal habeas

petition are not “second or successive” under 28 U.S.C.

§ 2244(b) and should be decided on the merits. Fourth,

CREECH V. RICHARDSON 7

Creech argues under Lackey v. Texas, 514 U.S. 1045 (1995),

that we should remand this case for the district court to

determine whether the duration of his confinement while

awaiting execution constitutes cruel and unusual punishment

under the Eighth Amendment.

We affirm the district court on the two certified issues.

We grant a COA as to the third uncertified issue and affirm

the district court on that issue. We deny COAs as to the first,

second, and fourth uncertified issues.

I. Background

A. The Crime and Guilty Plea

While serving life sentences for first-degree murder,

Creech beat to death a fellow inmate, David Dale Jensen, in

the maximum security tier of the Idaho State Correctional

Institution. Jensen, in prison for stealing a car, was twenty-

three years old and suffered from physical and mental

disabilities. He was partially paralyzed, and a plastic plate

had been surgically embedded in his skull.

Creech attacked Jensen, repeatedly hitting him in the head

with a battery-filled sock until the plate embedded in his skull

shattered, his skull caved in, and blood was splashed on the

floors and walls. State v. Creech (“Creech I”), 670 P.2d 463,

465 (Idaho 1983). Creech took breaks during the beating.

After the sock broke and the batteries fell out, Creech kicked

Jensen in the throat while Jensen lay sprawled on the floor.

Jensen was found by a prison guard and taken to the hospital.

He died on the operating table the same day. Creech had four

prior murder convictions when he killed Jensen. Creech

claimed responsibility for killing twenty-six people, and the

8 CREECH V. RICHARDSON

bodies of eleven of his victims were later recovered in seven

states.

Creech was charged with first-degree murder for killing

Jensen. Represented by the Idaho Public Defender’s office,

he initially entered a plea of not guilty. He later wrote a letter

to the trial judge, Judge Robert Newhouse, requesting a

change of plea hearing.

Judge Newhouse held a change of plea hearing in

response to Creech’s letter. Creech’s attorney, Rolf Kehne,

informed the court that Creech was pleading guilty against his

advice and requested a five-day continuance. Creech

indicated he did not want a continuance. Kehne then asked

to withdraw from representation on the ground that Creech

refused to follow his legal advice. Judge Newhouse denied

the request, stating, “I think he should at least have counsel

to inform him of the law and what’s going on.” After the

prosecution summarized the evidence it was prepared to

present at trial, and after a plea colloquy, Judge Newhouse

accepted Creech’s guilty plea and ordered a presentence

report.

B. Initial Sentencing Hearings

Creech’s first sentencing hearing was held in January

1982. The prosecution and the defense each presented expert

mental health testimony. Dr. Floyd LaMarr Heyrend, a

psychiatrist with training in neurology who had served as a

witness for Creech in one of Creech’s prior murder trials,

appeared for the prosecution. Dr. Heyrend had testified in the

prior trial that Creech had antisocial personality disorder and

acted impulsively without adequate forethought and sufficient

consideration for others, but that Creech could appreciate the

CREECH V. RICHARDSON 9

wrongfulness of his conduct and conform that conduct to the

requirements of the law. At Creech’s 1982 sentencing

hearing, Dr. Heyrend testified that Creech could presently

“recognize the wrongfulness of his behavior,” but also that

there was some evidence that Creech exhibited schizotypal

thinking and could drift into florid psychosis during times of

stress. Based on prior testing in 1974 and 1975 and an

electroencephalogram conducted the week before his

testimony, Dr. Heyrend opined that Creech did not suffer

from organic brain disorder.

Psychologist Dr. John Stoner testified for Creech. He

testified that Creech had antisocial personality disorder,

schizotypal personality disorder, and borderline personality

disorder. Dr. Stoner testified that Creech’s strikingly uneven

performance on different types of mental tests “strongly

suggest[ed] the presence of an organic brain disorder.” He

testified that Creech would have been able to appreciate the

wrongfulness of his actions at the beginning of the encounter

with Jensen, but that, once the attack commenced, Creech had

“a rage reaction during which he would neither appreciate the

wrongfulness nor be able to conform his behavior; that is, he

went into a self-maintaining assaulting rage.” Dr. Stoner

testified that individuals with similar disorders to Creech had

no prospects of therapeutic rehabilitation.

Creech took the stand on his own behalf. He testified that

he had killed twenty-six people, a number of whom he

believed had gang-raped his deceased former wife. He

testified that two other inmates had asked him “to kill Jensen

for money,” and another inmate offered to help him escape

from the penitentiary in exchange for Jensen’s killing.

Creech testified that he gave someone a knife to give to

Jensen; that Jensen then attacked Creech with the knife as an

10 CREECH V. RICHARDSON

effort to impress other inmates who “wouldn’t accept him

because he was partially crippled”; and that Creech then

killed Jensen. When asked on cross-examination what

sentence he wanted Judge Newhouse to give him, Creech

replied, “I want him to sentence me to death.”

On January 25, 1982, in a written decision, Judge

Newhouse sentenced Creech to death. He found in mitigation

that Creech had been justified in protecting himself against an

unprovoked attack by Jensen. However, he also found that

Jensen, “a young, inexperienced, handicapped man” with

“both physical and mental impairments,” had been “under the

complete domination and control” of Creech once the attack

began, and that Jensen’s murder, “once commenced, appears

to have been an intentional, calculated act.” Judge Newhouse

found that five statutory aggravating factors under Idaho

Code § 19-2515 had been proven beyond a reasonable doubt:

(1) Creech had previously been convicted of four first-degree

murders—two in 1976, one in 1979, and one in 1980;

(2) Creech “exhibited utter disregard for human life” during

Jensen’s murder; (3) Jensen’s murder came within the

definition of Idaho Code statutory aggravating factor § 18-

4003(c) because Creech was serving a first-degree murder

sentence at the time of the crime; (4) Jensen’s murder came

within the definition of Idaho Code statutory aggravating

factor § 18-4003(e) because Creech killed Jensen while both

were incarcerated in the Idaho State Correctional Institution;

and (5) Creech, “by prior conduct or conduct in the

commission of the murder at hand . . . exhibited a propensity

to commit murder which will probably constitute a continuing

threat to society.”

On February 24, 1983, the Idaho Supreme Court vacated

Creech’s death sentence because it had not been imposed in

CREECH V. RICHARDSON 11

open court in the presence of Creech and his counsel as

required by Idaho law. On remand, Judge Newhouse held a

hearing at which Creech and his counsel were present. Judge

Newhouse read his previous findings into the record and

again sentenced Creech to death. Judge Newhouse did not

permit Creech to present additional mitigation evidence at the

second sentencing hearing. On May 23, 1983, a divided

Idaho Supreme Court affirmed. Creech I, 670 P.2d at 465.

C. First State Post-Conviction Review Proceedings

In state court post-conviction review (“PCR”)

proceedings before Judge Newhouse, Creech moved to

withdraw his guilty plea. He asked for no other relief. See

State v. Creech (“Creech II”), 710 P.2d 502, 504 (Idaho

1985). During a four-day evidentiary hearing in February

1984, Creech testified extensively about the details of

Jensen’s death and his reasons for pleading guilty. On March

6, 1984, Judge Newhouse denied Creech’s motion to

withdraw his plea. The Idaho Supreme Court affirmed. Id.

at 507.

D. First Federal Habeas Proceedings

Creech sought federal habeas corpus under 28 U.S.C.

§ 2254. Our court granted relief with respect to Creech’s

sentence. We held: (1) the state trial court committed

constitutional error when it refused to allow Creech to present

additional mitigation evidence at his second sentencing

hearing; (2) the trial court applied two statutory aggravating

factors, Idaho Code § 18-4003(c) and (e), without making the

requisite findings of specific intent to kill; and (3) the trial

court applied an unconstitutionally vague “utter disregard for

human life” aggravating factor. Creech v. Arave (“Creech

12 CREECH V. RICHARDSON

III”), 947 F.2d 873, 881–85, 888 (9th Cir. 1991). The

Supreme Court reversed our third holding. It held that the

Idaho Supreme Court’s limiting construction of Idaho’s “utter

disregard” aggravating factor saved the instruction from

unconstitutionality. Arave v. Creech (“Creech IV”), 507 U.S.

463, 471 (1993). The Court did not disturb our other two

holdings, leaving intact our remand for resentencing. Id.

at 478–79.

E. Resentencing Hearing in 1995

Although no longer a public defender, Kehne represented

Creech at his third sentencing hearing, assisted by his law

partner John Adams. Kehne and Adams obtained several

continuances in order to investigate and prepare for the

hearing. A five-day resentencing hearing was held before

Judge Newhouse in March and April of 1995.

The defense called four witnesses, including Creech, at

the hearing. Creech’s sister, Virginia Plageman, and her

husband, Michael, each testified about Creech’s personality,

family background, and childhood. Virginia discussed the

family’s mental health problems, including depression, social

withdrawal, and anger management. She testified that

Creech’s maternal grandparents were cousins and that

Creech’s mother “left society” after her youngest son died at

the age of thirteen months. Virginia also described Creech’s

three surviving brothers, two of whom had been convicted of

murder or manslaughter.

Virginia testified that Creech’s childhood was

characterized by poverty and physical abuse, but she

specified that the abuse was not sexual. She testified that, on

one occasion, Creech fell down a staircase onto concrete; was

CREECH V. RICHARDSON 13

knocked unconscious; bled from his nose, mouth, and

possibly ears; and was hospitalized for a few days before their

mother took him home against medical advice. Virginia

testified that Creech had experienced escalating problems

beginning in early childhood, and that he struggled to discern

the difference between right and wrong. She testified that, in

recent years, Creech had calmed down and had become more

loving and kind. She testified that Creech’s wife, whom he

had married after his conviction in this case, had been a

positive influence on him.

Dr. Steven Brown, a clinical psychologist, also testified

for Creech. Dr. Brown had interviewed Creech twice and had

reviewed the updated presentence reports, psychiatric records,

and hospital records. He testified that Creech scored in the

ninety-sixth percentile for psychopathic traits when compared

to the general prison population. He testified that Creech was

a “prototypical or classic psychopath, and that if any

psychopaths have a biological predisposition,” then

“somebody who has such an extreme form as Mr. Creech

probably does.” Dr. Brown noted the significance of the fact

that two of Creech’s brothers were also murderers: “The fact

that two of his brothers are murderers is strong anecdotal

evidence that there’s a genetic contribution in his family. It’s

fairly outstanding that there are three murderers in one

family.” Though Creech’s electromyography test results

were within normal limits and there was no direct evidence of

a biological basis for Creech’s condition, Dr. Brown testified

that “there’s probably a biological contribution.”

The State called six witnesses whose testimony focused

on Creech’s conduct in prison and whether he posed a

security concern.

14 CREECH V. RICHARDSON

On April 17, 1995, Judge Newhouse again sentenced

Creech to death. He found the following facts in mitigation:

(1) Creech was forty-four years old, and most violent acts are

committed by males younger than thirty; (2) Creech

completed high school through eleventh grade and had

acquired his GED; (3) Creech took pride in cooperating with

law enforcement; (4) Creech was creative, writing songs,

poetry, and prose and playing the guitar; (5) Creech’s current

wife had been a positive influence on him; and (6) Creech

may be biologically predisposed to violence.

Judge Newhouse found the same five statutory

aggravating factors he had found in 1982. However, this

time, in discussing aggravating factors under Idaho Code

§ 18-4003(c) and (e), he found that Creech had attacked

Jensen with specific intent to kill. Judge Newhouse noted

that “[Creech] indicates an intention to commit further

murders if he is ever released” and that “[a]nything less than

total isolation would give rise to a substantial chance of the

defendant killing again.” He concluded, “The protection of

society demands that Thomas Eugene Creech receive the

death penalty.”

F. Second State Post-Conviction Review Proceedings

During Creech’s second state court PCR proceedings

before Judge Newhouse, Creech was represented by Idaho

Public Defender August Cahill. Creech claimed that Kehne

and Adams had been ineffective at his resentencing hearing

in 1995. After several continuances, a four-day evidentiary

hearing was held in October 1996. Creech presented

testimony from his ex-wife Emma Jean Asbrock and their

daughter Shelley Renae Creech. Asbrock and Shelley

testified that Creech may have suffered sexual abuse at the

CREECH V. RICHARDSON 15

hands of his aunt and uncle when he was a child. Shelley also

discussed her own and her mother’s mental health difficulties.

Kehne and Adams took the stand, testifying that they had

been ineffective at Creech’s 1995 resentencing hearing.

Judge Newhouse denied relief, finding that “Mr. Kehne ha[d]

performed with outstanding competence in a case where the

chance for success was extremely remote.” After

consolidating Creech’s appeal from the trial court’s judgment

with his appeal from the denial of PCR relief, the Idaho

Supreme Court affirmed. State v. Creech (“Creech V”),

966 P.2d 1, 23 (Idaho 1998).

G. Second Federal Habeas Proceedings

Creech timely filed a second § 2254 habeas petition on

January 20, 2000. Proceedings were stayed until January

2005 while Creech unsuccessfully pursued other state post-

conviction relief. On March 24, 2005, Creech filed a second

amended petition, the operative pleading in this appeal.

In March 2006, the district court found that certain

claims, including some IAC claims, had been procedurally

defaulted. It permitted discovery with respect to these claims

but warned that the claims “will be dismissed unless, after a

period of limited discovery, Petitioner can show cause and

prejudice to excuse any default.” Procedural default in PCR

proceedings was then governed by the cause and prejudice

standard of Coleman v. Thompson, 501 U.S. 722 (1991). The

court allowed mental health experts and a mitigation

specialist to meet with Creech.

Creech filed a motion for an evidentiary hearing in

August 2007. Creech proffered additional mitigation

evidence in support of his motion. That evidence provided

16 CREECH V. RICHARDSON

substantial additional support for the conclusion that Creech

suffered from an organic brain disorder. In March 2008, the

district court denied Creech’s motion for an evidentiary

hearing.

The district court held that 28 U.S.C. § 2254(e)(2)

foreclosed an evidentiary hearing on the additional mitigating

evidence Creech submitted in support of his motion. The

court nonetheless considered the additional evidence on the

merits, concluding that “[m]uch of this information was

already before the state courts, albeit in a less specific way.”

The court wrote that the “state courts already assumed the

truth of Dr. Brown’s testimony in 1995 that there could be a

biological aspect to Creech’s violent behavior, and that fact

was not significant to the outcome.” In the court’s view, “[a]

neurologist’s opinion that Creech has brain damage may be

more specific than Dr. Brown’s testimony, but it would have

provided only a modest counterweight to the heavy

aggravating factors.”

The district court dismissed Creech’s second amended

habeas petition with prejudice on March 31, 2010. The court

granted COAs on five claims. One of the COAs authorized

an appeal from the denial of the part of Claim 4 that alleged

IAC at Creech’s resentencing in 1995. Creech timely

appealed four of the five claims as to which COAs had been

granted, including the district court’s denial of the part of

Claim 4 addressed to IAC at the 1995 resentencing.

After oral argument on appeal, the Supreme Court

decided Martinez v. Ryan, 566 U.S. 1, 17 (2012), holding that

IAC by PCR counsel in an initial-review PCR proceeding can

excuse a procedural default of a claim of IAC of trial counsel.

We remanded to the district court to consider, in light of

CREECH V. RICHARDSON 17

Martinez, whether counsel had been ineffective during

Creech’s second PCR proceeding in failing to present certain

sub-claims under Claim 4. All of the sub-claims at issue

alleged IAC at the 1995 resentencing.

Seventeen possibly defaulted sub-claims under Claim 4

were before the district court on remand. The district court

held that Creech waived all but six of the sub-claims by

failing to argue them. Of the remaining six, the district court

found that only one, contained in ¶ 100(a), had been

procedurally defaulted. That sub-claim was that trial counsel

had failed to “prepare, develop, and present a coherent

sentencing strategy” at the 1995 resentencing. The district

court held that PCR counsel had not performed deficiently in

failing to present that sub-claim, and, in the alternative, that

there was no prejudice resulting from the failure to present it.

The district court held that the other five sub-claims,

contained in ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv), had not

been procedurally defaulted by PCR counsel. Rather, it held,

they had been presented by Creech’s counsel to the PCR

court, had been decided adversely by that court, and had been

decided adversely by the federal district court.

Creech presented additional evidence on remand.

Creech’s counsel submitted various medical records, as well

as a declaration that she had consulted with a

neuropsychologist who had concluded, based on those

medical records, that Creech may have suffered from an

organic brain disorder. Properly considering this new

evidence under the law in effect at the time, the district court

concluded that it was comparable to the evidence submitted

to the district court in support of Creech’s pre-remand motion

for an evidentiary hearing, and that it added little to the

information that had been before the state PCR court. The

18 CREECH V. RICHARDSON

court wrote, “Over the course of the two sentencing hearings

and the state postconviction proceedings, it had been well-

established that Creech might, indeed, have some . . .

biological or genetic component that contributed to his

antisocial and violent behavior . . . .”

The district court on remand held that the entirety of the

additional evidence of IAC that Creech sought to present in

district court, both before and after our Martinez remand, was

insufficient under Dickens v. Ryan, 740 F.3d 1302, 1318–19

(9th Cir. 2014) (en banc), to “fundamentally alter[]” these

five sub-claims and thereby to transform them into

unexhausted and procedurally defaulted new claims. The

court wrote, “The evidence that Petitioner brings forward in

this Court, although more specific, adds little substance to the

evidence that the state courts considered when adjudicating

Petitioner’s mitigation-based IATC claims. The evidence

submitted for the first time in this Court simply does not

substantially improve the evidentiary posture of those

claims.” Because the sub-claims had not been transformed

into procedurally defaulted new claims, Martinez did not

apply.

The district court reaffirmed its previous grant of a COA

as to the part of Claim 4 alleging IAC at the 1995

resentencing. It granted a new COA as to its denial of

Creech’s request for relief under Martinez as to the five sub-

claims contained in ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv). It

denied a COA as to any other issue.

Creech filed a motion for reconsideration. He proffered

additional new evidence that he argued fundamentally altered

the five sub-claims and transformed them into new claims.

The district court denied the motion for reconsideration,

CREECH V. RICHARDSON 19

refusing to consider the additional new evidence on the

ground that it could, and should, have been presented as part

of the initial proceeding on remand. The district court denied

a COA as to this issue.

Rather than appeal on all of the grounds on which he

previously appealed to this court, Creech now appeals only

the two certified issues and four uncertified issues described

at the beginning of our opinion.

II. Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 2253. We

review de novo a district court’s dismissal of a habeas

petition. Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir.

2016) (citing Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir.

2012)). We review for clear error the district court’s findings

of fact. Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir.

2006) (en banc) (citing Riley v. Payne, 352 F.3d 1313, 1317

(9th Cir. 2003)). We review for abuse of discretion the denial

of a request for an evidentiary hearing. Stanley v. Schriro,

598 F.3d 612, 617 (9th Cir. 2010) (citing Schriro v.

Landrigan, 550 U.S. 465, 468 (2007)).

We may grant habeas relief under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) only if the state

court’s decision “(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; or (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). The phrase “clearly established Federal

law” “refers to the holdings, as opposed to the dicta, of the

20 CREECH V. RICHARDSON

Supreme Court’s decisions as of the time of the relevant

state-court decision.” Carey v. Musladin, 549 U.S. 70, 74

(2006) (quoting Williams v. Taylor, 529 U.S. 362, 412

(2000)).

State-court findings of fact are presumed to be correct.

This presumption can be rebutted only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

III. Discussion

As a preliminary matter, relying on Browning v. Baker,

875 F.3d 444 (9th Cir. 2017), Creech argues that we should

broaden the COA on the first issue—IAC at the 1995

resentencing under Claim 4—to include every claim and sub-

claim addressed to that issue. We wrote in Browning:

While an individual claiming IAC “must

identify the acts or omissions of counsel that

are alleged not to have been the result of

reasonable professional judgment,” the court

considers counsel’s conduct as a whole to

determine whether it was constitutionally

adequate[.] The district court distorted this

inquiry by separating Browning’s IAC

argument into individual “claims” of IAC

corresponding to particular instances of

[defense attorney] Pike’s conduct. This

approach was misguided. Rather, the IAC

portion of the COA should have been crafted

at a higher level of generality.

Id. at 471 (citations omitted).

CREECH V. RICHARDSON 21

In the case before us, the question at issue was whether

Creech received IAC during his 1995 resentencing.

Browning was decided after the district court’s decisions,

while the case was on appeal to us. If Browning had been

available to the district court, it might have used slightly

different language in order to make clear that it was analyzing

Creech’s “counsel’s conduct as a whole to determine whether

it was constitutionally adequate.” Id. But it is clear that this

is what the district court did.

In its initial decision denying habeas relief, the district

court headed its analysis of Creech’s IAC claim under Claim

4 as “Ineffective Assistance of Counsel at the Resentencing

(Claim 4, ¶¶ 100(b)(d)(j)(o)(q))”. Each of the specified

subparagraphs of ¶ 100 alleged instances of IAC during

Creech’s 1995 resentencing. The court then spent thirteen

pages analyzing the IAC resentencing claim as a whole,

considering the entirety of the attorney conduct of which

Creech complained. The initial COA granted by the district

court was similarly encompassing. Claim 4 had alleged IAC

of trial counsel in many respects, including but not limited to

IAC at the 1995 resentencing. The court granted a narrowed

COA for Claim 4, but included in the COA all of the attorney

conduct relevant to the 1995 resentencing. The court wrote:

“[T]he Court will certify an appeal over the Court’s

resolution of Claim[] . . . 4 (but only to the extent that Creech

alleges that he was deprived of his right to effective

assistance of counsel at the 1995 resentencing proceeding)

. . . .”

In its decision denying habeas after our remand under

Martinez, reaffirming its previous grant of a COA for the part

of Claim 4 that alleged IAC at the 1995 resentencing, the

court used much of the same wording as it had used

22 CREECH V. RICHARDSON

previously in granting the COA for this part of Claim 4. The

court wrote, “The Court reaffirms its previous grant of a

certificate of appealability with respect to its resolution of the

merits of the non-defaulted aspects of Claim[] . . . 4 (to the

extent Creech alleges that he was deprived of his right to the

effective assistance of counsel at the 1995 resentencing

proceeding) . . . .”

In our Martinez remand order, we instructed the district

court to consider “whether any of Creech’s ineffective

assistance of counsel claims previously found procedurally

defaulted” may be heard under Martinez. Faithful to our

remand order, the district court discussed each of Creech’s

remanded IAC contentions, calling them “sub-claims.” In

holding that sub-claims ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv)

were not procedurally defaulted within the meaning of

Martinez, the district court did not consider these sub-claims

independently. Rather, it considered them together, in the

context of the entirety of Creech’s claim of IAC at

resentencing.

A. Certified Claims

1. Claim 4: Ineffective Assistance of Counsel at the 1995

Resentencing

Creech argues under Claim 4 that his trial counsel was

ineffective during his 1995 sentencing proceeding for failing

to investigate and present mitigation evidence in a timely and

adequate fashion, failing to hire a mitigation specialist, and

relying on an unqualified mental health expert. The Idaho

Supreme Court rejected Creech’s IAC claims at the 1995

resentencing, holding that Creech failed to prove either

deficient performance or prejudice under Strickland v.

CREECH V. RICHARDSON 23

Washington, 466 U.S. 668 (1984). Creech V, 966 P.2d at

17–21. In denying habeas relief to Creech prior to our

remand under Martinez, the district court held that the Idaho

Supreme Court had reasonably concluded that Creech failed

to demonstrate prejudice under Strickland. On remand from

our court under Martinez, the district court reaffirmed that

holding. We agree with the district court.

The two-part standard for evaluating IAC claims is set

forth in Strickland. First, “the defendant must show that

counsel’s representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. In order to minimize “the

distorting effects of hindsight,” courts evaluating IAC claims

“must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance.” Id. at 689. Counsel’s performance must be

judged “on the facts of the particular case, viewed as of the

time of counsel’s conduct.” Id. at 690. “The question is

whether an attorney’s representation amounted to

incompetence under ‘prevailing professional norms,’ not

whether it deviated from best practices or most common

custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011)

(quoting Strickland, 466 U.S. at 690).

Second, the defendant must “affirmatively prove

prejudice” by showing that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 693–94. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

at 694. “The benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just

24 CREECH V. RICHARDSON

result.” Id. at 686. We “need not determine whether

counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged

deficiencies” if “it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice.” Id.

at 697.

“Surmounting Strickland’s high bar is never an easy

task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). States

must be given wide latitude in applying rules of general

applicability such as the Strickland standard. Cf. Yarborough

v. Alvarado, 541 U.S. 652, 663–64 (2004). “The standards

created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is

doubly so.” Richter, 562 U.S. at 105 (internal quotation

marks and citations omitted). Our review “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, 181

(2011).

We agree with the district court that the Idaho Supreme

Court reasonably found a lack of prejudice under the second

prong of Strickland. The district court noted that Creech’s

case was “far from a blank slate” when it remanded for the

1995 resentencing. At the 1995 resentencing hearing, Judge

Newhouse took judicial notice of the entire record. That

record included the testimony of Dr. Stoner at the first

sentencing hearing and the testimony of Dr. Brown at the

1995 resentencing hearing. It also included a voluminous

presentence report, updated at Kehne’s request, that contained

substantial mental health evidence. Creech’s counsel at the

1995 hearing supplemented the record with character

reference letters and testimony regarding Creech’s family

background and mental health history; evidence of the

CREECH V. RICHARDSON 25

physical and verbal abuse Creech suffered as a child;

evidence of a serious childhood head injury; evidence of the

positive influence of Creech’s wife; expert testimony that

there was likely a biological basis for Creech’s violent

tendencies; and evidence of Creech’s progress in becoming

a calmer, less angry person.

The only new mitigation evidence that was presented in

the state PCR proceeding in 1996 was the testimony of

Asbrock, Creech’s ex-wife, and Shelley, his daughter.

Asbrock testified that Creech had been the victim of

childhood sexual abuse, but her testimony was vague as to the

details. When asked about abuse that occurred in Creech’s

childhood home, Asbrock responded, “Yes. I think a lot of

this is a big part, what happened somewhat in abuse and

incest. You keep—. . . You keep getting abused and abused,

and I don’t—I think someone should have put a stop to it.”

As her testimony continued, Asbrock indicated Creech had

been sexually abused by his aunt and uncle. When asked the

name of the uncle, she said, “Aunt Thelma, in the bathtub—I

can’t remember the man’s name. But I know what he did. It

wasn’t right to continue that over and over.” She indicated

that she knew about the abuse because Creech and others told

her twenty-five or thirty years earlier.

Shelley’s testimony was less specific than her mother’s.

She stated in her direct examination:

Q. Have you heard the same sorts of things

about Tom’s family that we heard today from

your mom?

A. I’ve heard a lot of stories.

26 CREECH V. RICHARDSON

Q. Okay.

A. And on that issue, I had letters. But I don’t

know. I lost everything. I don’t know. You

know, I know it was in Mount Orab. I don’t

know.

Q. And these were letters that your dad wrote

telling you about things that had happened to

him as a child?

A. Yeah.

Q. And that he had been abused as a child?

A. Yeah.

Q. And that there had been problems in

his—in his home when he was growing up?

A. And that’s why I could write my dad and

let him know things that had happened. And

I couldn’t even go to nobody else.

Asbrock’s and Shelley’s testimony was undermined by

their own mental health problems. Asbrock had suffered

some kind of breakdown at the airport immediately prior to

coming to court to give her testimony, and she was frequently

incoherent while on the stand. Shelley testified that she had

been diagnosed with schizophrenia, depression, and

borderline personality disorder. She became agitated and

confused on cross-examination.

CREECH V. RICHARDSON 27

To establish prejudice under Strickland, any additional

mitigation evidence presented at the PCR IAC hearing,

together with the mitigation evidence already in the record,

must outweigh the aggravating evidence in the record. That

aggravating evidence included Jensen’s brutal murder in the

prison, Creech’s four prior murder convictions, and Creech’s

testimony that he had committed many other murders and

intended to kill more people if given the opportunity. We

agree with the district court that the state court reasonably

concluded that there was no reasonable probability that

calling Asbrock and Shelley as witnesses at the 1995

resentencing hearing would have changed the outcome of that

proceeding. See, e.g., Pinholster, 563 U.S. at 202 (“Given

what little additional mitigating evidence Pinholster presented

in state habeas, we cannot say that the California Supreme

Court’s [denial of his IAC claim] was unreasonable.”); Bobby

v. Van Hook, 558 U.S. 4, 12 (2009) (per curiam) (holding no

prejudice where only two potential witnesses not interviewed

by defense counsel would have added any new information of

value and the information provided only “minor additional

details” about defendant’s background); King v. Schriro,

537 F.3d 1062, 1074 (9th Cir. 2008) (holding no prejudice

where defendant did not present evidence of what a more

complete social and medical history investigation would have

revealed).

As noted above, Creech had sought to “bolster” his IAC

resentencing claim by introducing in the district court

evidence that had never been presented to the state court. The

district court held that an evidentiary hearing on this

proffered new evidence was precluded by 28 U.S.C.

§ 2254(e)(2). In the alternative, the court held, further, that

if it were to ignore the limitation of evidentiary hearings

contained in § 2254(e)(2) and were to consider on the merits

28 CREECH V. RICHARDSON

the evidence not presented to the state PCR court, it would

nonetheless deny relief. Inter alia, the court wrote, “A

neurologist’s opinion that Creech has brain damage may be

more specific than Dr. Brown’s testimony, but it would have

provided only a modest counterweight to the heavy

aggravating factors . . . .”

We hold that the district court was correct in denying

relief on Creech’s IAC resentencing claim under Claim 4.

We hold, further, under § 2254(e)(2) that the district court

was correct in declining to hold an evidentiary hearing on the

new evidence that Creech sought to introduce to bolster his

IAC resentencing claim.

2. Martinez Remand: Five Allegedly Procedurally

Defaulted Sub-claims

a. Martinez

In Martinez, the Supreme Court announced an equitable

exception to the longstanding rule of Coleman v. Thompson

that ineffective assistance of PCR counsel cannot establish

cause to overcome a procedural default. The Court held:

Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an

initial-review collateral proceeding, a

procedural default will not bar a federal

habeas court from hearing a substantial claim

of ineffective assistance at trial if, in the

initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was

ineffective.

CREECH V. RICHARDSON 29

Martinez, 566 U.S. at 17. The Court refined the Martinez

inquiry in Trevino v. Thaler, 569 U.S. 413 (2013). Under

Martinez, a federal habeas court may find cause to excuse a

procedural default where:

(1) the underlying ineffective assistance of

trial counsel claim is “substantial”; (2) the

petitioner was not represented or had

ineffective counsel during the PCR

proceeding; (3) the state PCR proceeding was

the initial review proceeding; and (4) state law

required (or forced as a practical matter) the

petitioner to bring the claim in the initial

review collateral proceeding.

Dickens, 740 F.3d at 1319 (citing Trevino, 569 U.S. at 423).

A petitioner must satisfy all four requirements, id., but

only the first and second requirements are at issue here. With

respect to the first requirement, a petitioner must

“demonstrate that the underlying [IAC] claim is a substantial

one, which is to say that the prisoner must demonstrate that

the claim has some merit.” Martinez, 566 U.S. at 14 (citing

Miller-El v. Cockrell, 537 U.S. 322 (2003)). “Thus, there

must be a substantial showing of a ‘reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Runningeagle,

825 F.3d at 982 (quoting Strickland, 466 U.S. at 694). To

satisfy the second requirement, the petitioner must

demonstrate that PCR counsel “was ineffective under the

standards of Strickland,” which requires a petitioner to “show

not only that PCR counsel performed deficiently, but also that

. . . ‘there was a reasonable probability that, absent the

deficient performance, the result of the post-conviction

30 CREECH V. RICHARDSON

proceedings would have been different.’” Martinez, 566 U.S.

at 14; Runningeagle, 825 F.3d at 982 (quoting Pizzuto v.

Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015)).

In practical effect, the prejudice analysis under both the

first and second Martinez requirements is the same. Under

both requirements, the required analysis is the prejudice

prong of Strickland: There must be a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694; see Runningeagle, 825 F.3d at 982 (reciting the

Strickland prejudice standard under both the first and second

Martinez requirements); cf. Detrich v. Ryan, 740 F.3d 1237,

1245–46 (9th Cir. 2013) (en banc) (plurality opinion)

(interpreting the first and second Martinez requirements

differently).

Pursuant to our remand under Martinez, the district court

considered six sub-claims of Claim 4, all of which alleged

IAC at the 1995 resentencing proceeding. Creech appeals its

decision as to five of those sub-claims. At the time of the

district court’s decision after our Martinez remand, the court

could consider new evidence supporting a claim of IAC by

PCR counsel in determining whether a petitioner satisfies the

requirements of Martinez without running afoul of

§ 2254(e)(2) and Pinholster. See Dickens, 740 F.3d at 1320.

After we heard oral argument, however, the Supreme Court

decided Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022),

greatly restricting the circumstances in which a federal

habeas court deciding Martinez claims may consider evidence

beyond that already contained in the state court record.

CREECH V. RICHARDSON 31

b. Sub-claims ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv)

All of the sub-claims included in the district court’s COA

are addressed to IAC at Creech’s 1995 resentencing. Sub-

claim ¶ 100(b) alleges that post-conviction counsel failed to

conduct an adequate investigation of matters in mitigation,

including Creech’s mental health and that of his family. Sub-

claim ¶ 100(d) alleges failure to retain qualified mental health

experts to address issues of Creech’s mental health. Sub-

claim ¶ 100(j) alleges failure to investigate Creech’s mental

health issues including the effect of head injuries. Sub-claim

¶ 100(o)(iii) alleges failure to present mitigating evidence of

the mental condition of Creech’s daughter, which could

support claims of organic causes for Creech’s aggressive

behavior. Finally, sub-claim ¶ 100(o)(iv) alleges failure to

present evidence of severe mental illness of Creech’s mother.

The district court concluded that each of these sub-claims

had been presented to, and exhausted in, the state court as

part of Creech’s IAC claim under Claim 4 that his counsel

had been ineffective at his 1995 resentencing. Prior to the

Supreme Court’s decision in Ramirez, a claim previously

presented to a state court could become a new unexhausted

(and procedurally defaulted) claim if new evidence presented

to the district court under Martinez either “fundamentally

alter[ed] the legal claim already considered by the state

courts” or “place[d] the case in a significantly different and

stronger evidentiary posture than it was when the state courts

considered it.” Dickens, 740 F.3d at 1318 (citations omitted)

(first quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986);

and then quoting Aiken v. Spalding, 841 F.2d 881, 883 (9th

Cir. 1988)). The district court recognized that, if a previously

exhausted claim was supplemented on federal habeas with

sufficient new supporting evidence, the claim could be

32 CREECH V. RICHARDSON

transformed into a new, unexhausted, and procedurally

defaulted claim.

As recounted above, the district court considered all of the

proffered new evidence and held that it was insufficient to

transform into a new IAC claim the part of Claim 4 that

alleged IAC during Creech’s 1995 resentencing. The court

held that sub-claims ¶¶ 100(b), (d), (j), (o)(iii), and (o)(iv)

were therefore not procedurally defaulted new claims and that

Martinez did not apply.

Even in the absence of Ramirez, we would have agreed

with the district court. Most of the new evidence introduced

on federal habeas review in support of Creech’s argument

that he suffers from an organic disorder was duplicative of

evidence introduced during the 1995 resentencing.

Dr. Brown had testified at Creech’s 1995 resentencing

hearing that it was highly unusual that Creech and his two

brothers were all murderers, and that there was “probably a

biological contribution” to Creech’s behavior. Dr. Stoner had

testified at Creech’s original sentencing hearing that Creech’s

performance on tests “strongly suggest[ed] . . . an organic

brain disorder.” Considering the mitigation evidence as a

whole, see Browning, 875 F.3d at 471, the district court

correctly concluded,

The evidence that Petitioner brings forward in

this Court, although more specific, adds little

substance to the evidence that the state courts

considered when adjudicating Petitioner’s

mitigation-based IATC claims. The evidence

submitted for the first time in this Court

simply does not substantially improve the

evidentiary posture of those claims.

CREECH V. RICHARDSON 33

Under Ramirez, we reach the same result. Because we

cannot consider the evidence presented for the first time to

the district court, Creech’s Martinez claim necessarily fails.

B. Uncertified Claims

Creech seeks a COA for four uncertified claims. For a

COA to issue, Creech must “sho[w] that reasonable jurists

could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or

that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El, 537 U.S.

at 336 (alteration in original) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)).

1. Summary Denial of Reconsideration

Creech seeks a COA on his claim that the district court

erred in summarily denying his motion for reconsideration of

its denial of his second habeas petition. In his motion for

reconsideration, Creech sought to present additional

mitigating evidence beyond the new evidence he had already

presented to the district court in connection with his second

petition. In denying his motion for reconsideration, the

district court held, inter alia, that even if the court were to

consider the new evidence presented in connection with the

motion for reconsideration as if it were part of Creech’s

initial Martinez proceeding, there was no prejudice. We deny

a COA. Under Ramirez, we may not consider the evidence

Creech submitted in support of his motion for

reconsideration. He therefore cannot demonstrate prejudice

as a result of PCR counsel’s performance as required by

Martinez.

34 CREECH V. RICHARDSON

2. Withdrawal of Guilty Plea

Creech seeks a COA for his claim that the Idaho Supreme

Court violated the Due Process Clause by refusing to allow

him to withdraw his guilty plea prior to his first resentencing.

The district court denied relief on this claim, correctly

concluding that Creech’s argument was, in effect, that the

Idaho Supreme Court had incorrectly decided a question of

state law. See Creech V, 966 P.2d at 21–22. The Idaho

Court’s construction of its own law was not “an obvious

subterfuge to evade the consideration of a federal issue,” and

we are bound by its holding that Creech’s withdrawal claim

is barred by state preclusion law. See Peltier v. Wright,

15 F.3d 860, 862 (9th Cir. 1994). We therefore decline to

grant a COA for this claim.

3. Magwood Claims

Creech seeks a COA for multiple claims attacking his

guilty plea. He refers to these claims as “Magwood claims,”

invoking the Supreme Court’s decision in Magwood v.

Patterson, 561 U.S. 320 (2010). These claims were

exhausted during his second PCR proceeding in state court

and were presented to the district court in both his first and

second habeas petitions. When Creech raised them in his

second habeas petition, the district court rejected these claims

as second or successive under 28 U.S.C. § 2244(b). After the

district court’s decision, the Court decided Magwood, holding

that claims in a second federal habeas petition challenging the

sentence imposed in a new state court judgment are not

second or successive, even if addressed to issues other than

sentencing. Id. at 342.

CREECH V. RICHARDSON 35

Creech asks that we grant a COA as to his guilty plea

claims and remand to the district court to allow that court to

address them on the merits in the first instance. We grant the

COA. We conclude, based on Magwood and later cases

decided by our circuit, that the claims are not barred as

second or successive. However, rather than remand them to

the district court, we deny them ourselves.

a. Applicability of Magwood

“We review de novo the district court’s determination that

a petition is ‘second or successive’ under AEDPA.”

Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017). In

Magwood, the Supreme Court held that a second federal

habeas petition challenging a sentence imposed in an

intervening state court judgment was not a second or

successive petition. Magwood left open the question whether

§ 2244(b) would allow a petitioner who obtains a new

sentence to challenge “not only his resulting, new sentence,

but also his original, undisturbed conviction.” 561 U.S.

at 342 (emphases in original). We answered that question in

Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012). We held

that “the basic holding of Magwood” must extend to cases

where a new petition challenges undisturbed parts of the

judgment, including a petitioner’s original conviction,

because Magwood requires us to “interpret successive

applications with respect to the judgment challenged and not

with respect to the particular components of that judgment.”

Id. at 1127 (quoting Johnson v. United States, 623 F.3d 41, 46

(2d Cir. 2010)). “‘[W]here a first habeas petition results in an

amended judgment, a subsequent petition is not successive,’

even if its claims could have been raised in a prior petition or

the petitioner ‘effectively challenges an unamended

component of the judgment.’” Id. (quoting Johnson,

36 CREECH V. RICHARDSON

623 F.3d at 46); see also Gonzalez, 873 F.3d at 768–69 (“In

short, under the law of this circuit and the Supreme Court, a

petition is not second or successive when there is an amended

judgment and the petition is the first one following that

amended judgment.”).

Although Creech III and Creech IV left Creech’s

conviction for Jensen’s murder undisturbed, Creech may

nonetheless challenge that conviction in his second federal

habeas petition because his original sentence was vacated and

a new sentence was imposed. Creech’s second habeas

petition is thus not second or successive as to his guilt-phase

claims.

b. Discussion of Magwood Claims

As noted above, public defender Rolf Kehne represented

Creech at trial. Creech claims that, were it not for a conflict

of interest in the public defender’s office and were it not for

Kehne’s deficient performance, he would not have pleaded

guilty and would instead have gone to trial on the question of

guilt. Specifically, Creech argues that his trial counsel were

ineffective because (1) the Ada County Public Defender’s

Office (“ACPDO”) labored under a conflict of interest while

representing him; (2) Kehne failed to move to withdraw the

guilty plea based on Creech’s incompetence and failed to

seek additional testing for brain damage; (3) Kehne failed to

investigate the purported influence of Sheriff Chuck Palmer

in Creech’s decision to plead guilty; and (4) Kehne failed to

investigate Jensen’s allegedly violent history. We take the

arguments in turn.

CREECH V. RICHARDSON 37

i. Conflict of Interest

Creech argues that the ACPDO labored under a conflict

of interest in the pre-plea stage. Creech argues that, before he

was represented by Kehne, he was briefly represented in

different hearings by four other public defenders in the

ACPDO. One of these attorneys, Laird Stone, also

represented inmate Keith George, who had witnessed

Jensen’s death. George provided deposition testimony

describing Creech’s actions in continuing the attack on Jensen

after Jensen had stopped fighting. Creech argues that

George’s testimony contributed to Creech’s perception that

the case was hopeless and that the court would automatically

impose the death penalty, which induced him to plead guilty.

The record belies Creech’s argument. Kehne

affirmatively sought a continuance to investigate whether the

public defender’s office had a conflict arising from potential

witnesses against Creech who had been represented by the

public defender. During argument in the trial court, Kehne

clarified that the office was representing another inmate,

presumably George, who was trying to reach a deal and was

represented by Stone. The prosecution represented to the

court that no offers of a deal had been extended to that other

inmate, that there was nothing more than a potential conflict

of interest, and that the prosecution would inform the public

defender’s office if an offer of a deal was extended. The trial

court determined that there was a potential but not an actual

conflict. When George testified in his deposition in August

1981, he was no longer represented by the public defender’s

office. Creech concedes that the prosecution did not cut

George a deal for testimony until his deposition, when it is

undisputed he was represented by a private attorney.

38 CREECH V. RICHARDSON

Therefore, no actual conflict existed at the time of

George’s deposition. See Noguera v. Davis, 5 F.4th 1020,

1035 (9th Cir. 2021) (“An ‘actual conflict’ means a ‘conflict

of interest that adversely affects counsel’s performance,’ not

simply ‘a theoretical division of loyalties.’” (quoting Mickens

v. Taylor, 535 U.S. 162, 171, 172 n.5 (2002))). The state trial

court investigated the potential conflict and found that none

existed. See Alberni v. McDaniel, 458 F.3d 860, 870–71 (9th

Cir. 2006). Moreover, the details in George’s deposition

testimony were not more damaging than the admissions

Creech had made to police against the advice of counsel prior

to his change of plea hearing. Contrary to Creech’s assertion,

it is apparent that his decision to plead guilty against Kehne’s

advice was wholly unrelated to ACPDO’s representation of

George. The Idaho courts did not unreasonably find Creech’s

arguments as to Kehne’s purported conflict of interest to be

without merit. See Creech V, 966 P.2d at 21.

ii. Failure to Argue Creech’s Incompetence or to Obtain

Further Mental Testing

Creech argues that Kehne should have moved to withdraw

his guilty plea on the ground that Creech was incompetent to

plead guilty and that Kehne should have tested Creech for

brain damage, which would have raised issues about his

competence to plead guilty. Creech asserts that the

assessments of Drs. Stoner and Heyrend, along with a suicide

attempt the day before he appeared in court to change his

guilty plea, should have indicated to Kehne that Creech was

incompetent to plead guilty and that further testing was

necessary.

We addressed Creech’s competence to plead guilty in our

decision in 1991. There is nothing in the current record that

CREECH V. RICHARDSON 39

leads us to change our earlier conclusion that the record

discloses “no evidence that Creech was incompetent to plead

guilty.” Creech III, 947 F.2d at 879–80. When Dr. Heyrend

was asked whether Creech “did not intend to plead guilty or

did not recognize the consequences of that legal act,” he

replied “I really have no information in that area.” Dr. Stoner

testified that Creech, although impulsive and impaired in his

judgment, could understand the proceedings against him and

was capable of communicating adequately with counsel.

Although Creech, at Kehne’s insistence, reserved the right

to withdraw his guilty plea if psychological evaluations

showed Creech incompetent to plead guilty, those evaluations

did not suggest that Creech was incompetent to plead guilty

such that Kehne should have pursued further testing or moved

to withdraw the plea. Even assuming that Kehne should have

pursued further testing, his failure to do so was not

prejudicial, as nothing in Dr. Brown’s later testimony at the

1995 resentencing hearing suggests that Creech had been

incompetent to plead guilty. See United States v. Howard,

381 F.3d 873, 877–78 (9th Cir. 2004) (“To establish that his

counsel provided ineffective assistance in light of

[petitioner’s] alleged incompetency, [petitioner] must first

demonstrate that he was indeed incompetent to plead

guilty.”). The Idaho courts did not unreasonably conclude

that Creech failed to show that Kehne should have moved to

withdraw his guilty plea on the ground that Creech was

incompetent. See Creech V, 966 P.2d at 21.

iii. Failure to Communicate or Move to Withdraw the

Guilty Plea Based on Undue Influence

Creech argues that Kehne was ineffective for failing to

adequately communicate with him prior to his guilty plea,

40 CREECH V. RICHARDSON

which resulted in Kehne’s failure to challenge and investigate

Sheriff Chuck Palmer’s alleged coercion of Creech into

pleading guilty, and for subsequently failing to move to

withdraw the guilty plea based on Sheriff Palmer’s influence

on Creech.

During Creech’s state PCR proceedings, Palmer testified

that he had an ongoing relationship with Creech dating back

to the early 1970s. Palmer described the relationship as one

of “mutual respect.” He recalled that Creech told him early

on that he wanted to plead guilty, and that he “encourage[d]

[Creech] to do that, if that was what he wanted to do.”

However, Palmer insisted that he told Creech not to discuss

matters pertaining to the murder with him outside the

presence of counsel.

The record shows that Creech was motivated to plead

guilty independent of any supposed influence by Palmer.

During the change-of-plea hearing, Kehne informed Judge

Newhouse that Creech was pleading guilty against his advice,

and Creech rejected Kehne’s advice that they seek a five-day

continuance before entering a guilty plea. During the plea

colloquy, Creech testified under oath that he had discussed

the plea with counsel, was not influenced by the conduct of

others, and believed that he had adequate time to discuss the

matter with counsel. Doe v. Woodford, 508 F.3d 563, 571

(9th Cir. 2007) (“Solemn declarations in open court carry a

strong presumption of verity.” (quoting Blackledge v. Allison,

431 U.S. 63, 74 (1977))); United States v. Kaczynski,

239 F.3d 1108, 1115 (9th Cir. 2001) (“We give ‘substantial

weight’ to [a petitioner’s] in-court statements.” (quoting

United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991))).

CREECH V. RICHARDSON 41

Even assuming that Kehne rendered deficient

performance for failing to adequately communicate with

Creech prior to the change-of-plea hearing, Creech cannot

demonstrate prejudice. The record contains ample evidence

that Creech desired to plead guilty of his own accord, and he

has not shown that, even if Kehne had presented a motion to

withdraw his guilty plea based on Palmer’s alleged influence,

the motion would have had a reasonable chance of success.

See United States v. Yong, 926 F.3d 582, 590 (9th Cir. 2019)

(“A plea of guilty entered by an individual fully aware of the

plea’s direct consequences ‘must stand unless induced by

threats (or promises to discontinue improper harassment),

misrepresentation (including unfulfilled or unfulfillable

promises), or perhaps by promises that are by their nature

improper . . . .’” (quoting Kaczynski, 239 F.3d at 1114)). The

Idaho Supreme Court did not unreasonably conclude that

Creech failed to show IAC at the guilt phase on the basis of

Kehne’s purported failure to communicate with him. See

Creech V, 966 P.2d at 19–20.

iv. Failure to Investigate Jensen’s History

Finally, Creech argues that counsel’s failure to investigate

Jensen’s purported history of violence led Creech to plead

guilty rather than insist on going to trial on a theory of self-

defense. Even assuming that Kehne’s failure to investigate

Jensen’s history constituted deficient performance, Creech

cannot demonstrate prejudice. We agree with our

determination in 1991 that it is “inconceivable . . . , and not

merely improbable” that Creech “would have been acquitted

or, if convicted, would nevertheless have been given a shorter

sentence than he actually received” if he had gone to trial on

a theory of self-defense. Creech III, 947 F.2d at 879 (quoting

Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984)). Even

42 CREECH V. RICHARDSON

accepting for the sake of argument that Jensen had a violent

predisposition, there is no reasonable probability that this

additional evidence would have outweighed the

countervailing and aggravating evidence. Allen v. Woodford,

395 F.3d 979, 1002 (9th Cir. 2005) (no prejudice where

additional mitigation evidence would have been “insufficient

to outweigh the overwhelming evidence in aggravation”).

The Idaho courts did not unreasonably so conclude. See

Creech V, 966 P.2d at 18–19.

4. Lackey Remand

Creech seeks a COA for a claim that the duration of

Creech’s confinement for this murder, now forty years,

constitutes cruel and unusual punishment in violation of the

Eighth Amendment. He relies on Justice Stevens’s

memorandum respecting the denial of certiorari in Lackey v.

Texas, 514 U.S. 1045 (1995) (mem.). The district court

found the claim procedurally defaulted and dismissed it with

prejudice. Even putting aside the procedural default, we note

that neither the Supreme Court nor the Ninth Circuit has ever

held that the duration of a death row inmate’s confinement

prior to execution amounts to cruel and unusual punishment.

Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir. 2010)

(collecting cases). We therefore decline to grant a COA for

this claim.

C. Post-Ramirez Motion

After the Supreme Court decided Ramirez, Creech moved

for leave to file replacement or supplemental briefs. Creech

contends that, had he known that he would not be able to

introduce new evidence on federal habeas review under

Martinez, he would have made different strategic choices as

CREECH V. RICHARDSON 43

to which arguments to pursue in his appeal from the district

court’s decision after our post-Martinez remand. He seeks to

file replacement or supplemental briefs based on strategic

choices he says he would have made had he known that he

was unable to make any arguments under Martinez.

However, Creech filed such briefs when he appealed the

district court’s denial of his second amended habeas petition.

We heard oral argument based on those briefs in March 2012

shortly before Martinez was decided. In those briefs, Creech

made precisely the sort of strategic choices that he now says

he wants to make—choices as to what arguments to make on

appeal when he has no viable arguments under Martinez.

After we heard argument in the pre-Martinez appeal, we

voted unanimously to deny all claims adversely to Creech

except for those that became available post-argument under

Martinez. Replacement or supplemental briefs of the sort

Creech seeks to file would thus make no difference to the

outcome. We therefore deny Creech’s motion to file

replacement or supplemental briefs.

Conclusion

We affirm the district court’s denial of Creech’s second

amended habeas petition.

AFFIRMED.