Opposition Brief — Thomas E. Creech, Petitioner v. Tim Richardson, Warden

Supreme Court briefAug 30, 2023

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No. 23-5039

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________

THOMAS E. CREECH,

Petitioner,

TIM RICHARDSON,

Respondent.

_____________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE NINTH CIRCUIT COURT OF APPEALS

_____________________________________________

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

_____________________________________________

RAÚL R. LABRADOR

Attorney General of Idaho

L. LaMONT ANDERSON *

Deputy Attorney General

Chief, Capital Litigation Unit

Criminal Law Division

700 W. State Street

Boise, Idaho 83720-0010

Telephone: (208) 334-4539

Attorneys for Respondent

* Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

Petitioner Thomas E. Creech (“Creech”) has raised the following questions before this

Court:

Whether, for purposes of measuring ineffective-assistance-of-counsel

claims arising from capital sentencings, evidence of or reference to psychopathy

should be treated as potentially mitigating or as categorically aggravating[.]

Whether the Eighth Amendment is implicated by a prisoner’s excessively

long residence on a highly restrictive death row.

(Pet., p.i.)

TABLE OF CONTENTS

QUESTIONS PRESENTED............................................................................................................ i

TABLE OF AUTHORITIES.......................................................................................................... iii

RESPONDENT’S APPENDICES ................................................................................................ vii

STATEMENT OF THE CASE........................................................................................................ 1

REASONS FOR DENYING THE WRIT .....................................................................................11

Creech’s Psychopathy Claim Does Not Warrant Review By This Court ...........................11

This Court Does Not Address Questions That Were Not Raised Below .................... 12

Creech Has Failed To Establish Disagreement Between The Federal Circuits

Regarding Whether Psychopathy Is Categorically Aggravating ................................ 15

Creech’s Case Is Not A Good Vehicle To Even Address, Let Alone Resolve, The

Question He Presents .................................................................................................. 22

II.

Creech’s Lackey Claim Does Not Warrant Review By This Court ................................ 31

This Court Is Without Jurisdiction To Address Creech’s Lackey Claim Because He

Has Not Challenged The Ninth Circuit’s Denial Of A COA Regarding The Claim ... 31

This Court Does Not Address The Merits Of Procedurally Defaulted Claims ........... 34

There Is No Eighth Amendment Violation Based Upon The Delay Associated With

Creech’s Execution ..................................................................................................... 35

CONCLUSION ............................................................................................................................. 39

TABLE OF AUTHORITIES

Cases

Adams v. Robertson, 520 U.S. 83 (1997) ..................................................................................... 13

Adarand Construction, Inc. v. Mineta, 534 U.S. 103 (2001) ........................................................ 12

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................................. 20, 21

Atwood v. Ryan, 870 F.3d 1033 (9th Cir. 2017) ...................................................................... 15, 16

Ayestas v. Davis, 138 S.Ct. 1080 (2018) ...................................................................................... 32

Blessing v. Freestone, 520 U.S. 329 (1997) .................................................................................. 12

Bloeth v. New York, 82 S.Ct. 661 (1962) ..................................................................................... 12

Brewer v. Quarterman, 550 U.S. 286 (2007) ................................................................................ 20

Brumfield v. Cain, 576 U.S. 305 (2015) ....................................................................................... 20

Buck v. Davis, 580 U.S. 100 (2017) ....................................................................................... 33, 34

Cardinale v. Louisiana, 394 U.S. 437 (1969) ................................................................................ 13

Creech v. Arave (Creech III), 947 F.2d 873 (9th Cir. 1991) ............................................................ 4

Creech v. Arave (Creech IV), 507 U.S. 463 (1993) .......................................................... 1, 2, 4, 24

Creech v. Richardson (Creech VII), 59 F.4th 372 (9th Cir. 2023) ....6, 7, 8, 9, 10, 11, 14, 22, 23, 25,

26, 28, 29, 30, 33, 35

Creech v. State (Creech VI) 51 P.3d 387 (Idaho 2002) ....................................................... 6, 34, 38

Cullen v. Pinholster, 563 U.S. 170 (2011) .............................................................................. 20, 24

Cummings v. Sec’y for Dep’t of Corr’s., 588 F.3d 1331 (11th Cir. 2009)............................... 18, 19

Davis v. Ayala, 576 U.S. 257 (2015) ............................................................................................ 38

Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) .............................................................................. 8

Dunn v. Madison, 583 U.S. 10 (2017) .......................................................................................... 26

Eddings v. Oklahoma, 455 U.S. 104 (1982) ........................................................................... 17, 18

iii

Cases (continued)

Esparza v. Sheldon, 765 F.3d 615 (6th Cir. 2014) ......................................................................... 16

Evans v. Sec’y, Dep’t of Corr’s., 703 F.3d 1316 (11th Cir. 2013) ................................................. 18

Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002) ............................................................................ 16

Guinan v. Armontrout, 909 F.2d 1224 (8th Cir. 1990) ................................................................... 16

Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988) ............................................................................. 19

Hittson v. Chatman, 576 U.S. 1028 (2015)............................................................................. 31, 35

Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001) ........................................................................... 35

Illinois v. Gates, 462 U.S. 213 (1983)........................................................................................... 13

Kansas v. Carr, 136 S.Ct. 633 (2016) ........................................................................................... 31

Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459 (1999) .......................................................... 35, 36

Knowles v. Mirzayance, 556 U.S. 111 (2009) .............................................................................. 14

Lackey v. Texas, 514 U.S. 1045 (1995) ...............................................................6, 7, 11, 31, 33, 35

Lambright v. Schriro, 490 F.3d 1103 (9th Cir. 2007) ..................................................................... 16

Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000) .................................................................... 32

Lockett v. Ohio, 438 U.S. 586 (1978) ..................................................................................... 20, 22

Mann v. Ryan, 828 F.34d 1143 (9th Cir. 2016) .................................................................. 10, 12, 14

Martinez v. Ryan, 566 U.S. 1 (2012) ............................................ 7, 8, 9, 10, 14, 25, 30, 31, 37, 38

McCleskey v. Kemp, 481 U.S. 279 (1987) ................................................................................... 19

McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430 (1940) ................................ 12

McKenzie v. Day, 57 F.3d 1493 (9th Cir. 1995) ............................................................................ 36

Miller-El v. Cockrell, 537 U.S. 322 (2003) ............................................................................ 31, 32

Cases (continued)

Morton v. Sec’y, Fla. Dep’t of Corrs., 684 F.3d 1157 (11th Cir. 2012) ................................... 16, 17

Paz v. State, 852 P.2d 1355 (Idaho 1993) ..................................................................................... 37

Pizzuto v. State, 202 P.3d 642 (Idaho 2008) ................................................................................. 35

Reed v. Sec’y, Fla. Dept. of Corrs., 593 F.3d 1217 (11th Cir. 2010) ................................. 16, 17, 18

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) ....................................................................... 36

Ring v. Arizona, 536 U.S. 284 (2002)............................................................................................. 6

Shinn v. Ramirez, 142 S.Ct. 1718 (2022) ..............................................................10, 11, 25, 27, 30

Shoop v. Twyford 142 S.Ct. 2037 (2022)..................................................................................... 25

Siegert v. Gillery, 500 U.S. 226 (1991)......................................................................................... 13

Slack v. McDaniel, 529 U.S. 473 (2001) ................................................................................ 32, 33

State v. Beam, 766 P.2d 678 (Idaho 1988) .................................................................................... 37

State v. Creech (Creech I), 670 P.2d 463 (Idaho 1983)........................................................... 1, 2, 3

State v. Creech (Creech II), 710 P.2d 502 (Idaho 1985) ................................................................. 3

State v. Creech (Creech V), 966 P.2d 1 (Idaho 1998) ................................................................. 4, 6

State v. Creech, 589 P.2d 114 (Idaho 1979) .................................................................................... 1

State v. Rhoades, 120 Idaho 795 (1991) ....................................................................................... 34

Strickland v. Washington, 466 U.S. 668 (1984)................................... 8, 21, 22, 24, 26, 27, 28, 31

Suggs v. McNeil, 609 F.3d 1218 (11th Cir. 2010) ......................................................................... 18

Trevino v. Thayer, 569 U.S. 413 (2013) ....................................................................................... 37

Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995) ............................................................................. 36, 39

U.S. v. Ortiz, 422 U.S. 891 (1975) ................................................................................................ 12

U.S. v. Price, 949 F.3d 1240 (10th Cir. 2019) ................................................................................ 15

Cases (continued)

White v. Johnson, 79 F.3d 432 (5th Cir. 1996) .............................................................................. 36

Woodson v. North Carolina, 428 U.S. 280 (1976) .................................................................... 1, 20

Zant v. Stephens, 462 U.S. 862 (1983) ......................................................................................... 19

Statutes

28 U.S.C. § 2253 ........................................................................................................................... 38

28 U.S.C. § 2254(d) ...................................................................................................................... 16

28 U.S.C. § 2254(e)(2) .................................................................................................................... 8

I.C. § 19-271 ................................................................................................................................. 41

I.C. § 19-2719 ......................................................................................................... 7, 41, 42, 45, 46

I.C. § 19-2719(6)........................................................................................................................... 45

RESPONDENT’S APPENDICES

Findings of the Court in Considering the Death Penalty,

State v. Creech, #HR-10252, dated April 17, 199………………………Resp’s App., pp.001-007

Memorandum Decision and Order

Creech v. State, #SPOT-95-00154-D, dated December 12, 1996………Resp’s App., pp.008-027

Testimony of Floyd LaMarr Heyrend (first sentencing),

State v. Creech, #HR-10252……………………...……………….…….Resp’s App., pp.128-052

Excerpt of Testimony Thomas Creech (resentencing),

State v. Creech, #HR-10252……………………...……………….…….Resp’s App., pp.053-055

Excerpt of Testimony of Virgina Plageman (resentencing),

State v. Creech, #HR-10252……………………...……………….…….Resp’s App., pp.056-057

Creech’s Allocution (resentencing),

State v. Creech, #HR-10252……………………...……………….…….Resp’s App., pp.058-060

vii

STATEMENT OF THE CASE

This is not the first time that Petitioner Thomas E. Creech has been before this Court. In

1993, this Court explained:

The facts underlying this case could not be more chilling. Thomas Creech

has admitted to killing or participating in the killing of at least 26 people. The

bodies of 11 of his victims – who were shot, stabbed, beaten, or strangled to death-have been recovered in seven States. Creech has said repeatedly that, unless he is

completely isolated from humanity, he likely will continue killing. And he has

identified by name three people outside prison walls he intends to kill if given the

opportunity.

Creech v. Arave (Creech IV), 507 U.S. 463, 465-66 (1993).

In 1981, Creech was incarcerated at the maximum security unit of the Idaho State

Penitentiary serving life sentences for two murders (“Valley County murders”). State v. Creech

(Creech I), 670 P.2d 463, 465 (Idaho 1983) (Pet’s App., pp.188-235). 1 Creech was originally

sentenced to death for those two murders. State v. Creech, 589 P.2d 114, 115 (Idaho 1979).

However, based upon Woodson v. North Carolina, 428 U.S. 280 (1976), the Idaho Supreme Court

concluded the death sentences were unconstitutional, Creech, 589 P.2d at 115, resulting in his being

resentenced to fixed life without the possibility of parole, Creech I, 670 P.2d at 465.

While this Court believed the circumstances of the murder of Creech’s most recent victim,

fellow inmate David Dale Jensen, “remain unclear, primarily because Creech has given conflicting

accounts of them,” Creech IV, 507 U.S. at 466, the Court focused upon the facts found by the Idaho

Supreme Court, id., which are supported by the record:

At the time of the offense here in question, Creech was an inmate of the Idaho State

Correctional Institution, serving a life sentence for first degree murder. The victim

of this offense, Dale Jensen, had been convicted of car theft and was serving a

sentence in the same institution. Jensen had some years earlier sustained a gunshot

wound to the head which had necessitated the removal of part of his brain and the

Like Creech, and to maintain consistency, the state will cite to reporters when applicable, and not

his Appendices.

placement of a plastic plate in his skull. His speech and motor functions were

impaired to some extent. At the time of the offense, both Creech and Jensen were

housed in the maximum security tier of the institution.

In the maximum security tier, only one inmate at any one time was

ordinarily allowed out of his cell. Creech, however, had been made a janitor and

thus, while Creech was performing cleaning duties, he might be out of his cell while

another inmate was out of his cell for exercise or shower privileges.

Prior to the offense in question, Creech and Jensen had engaged in argument

over television and over Jensen’s littering and dirtying the floor, for which Creech,

as janitor, was responsible. Apparently the two were not on good terms. Although

Creech himself has given more than one version of the murder, it appears that on

the day in question, while Jensen was out of his cell, Jensen approached Creech and

swung a weapon at him which consisted of a sock containing batteries. Creech took

the weapon away from Jensen, who returned to his cell but emerged with a

toothbrush to which had been taped a razor blade. When the two men again met,

Jensen made some movement toward Creech, who then struck Jensen between the

eyes with the battery laden sock, knocking Jensen to the floor. The fight continued,

according to Creech’s version, with Jensen swinging the razor blade at Creech and

Creech hitting Jensen with the battery filled sock. The plate imbedded in Jensen’s

skull shattered, and blood from Jensen’s skull was splashed on the floor and walls.

Finally, the sock broke and the batteries fell out, and by that time Jensen was

helpless. Creech then commenced kicking Jensen about the throat and head.

Sometime later a guard noticed blood, and Jensen was taken to the hospital, where

he died the same day. There is some evidence in the record indicating that Creech

had been enticed by other inmates to “do Jensen in,” but the district judge did not

decide or find that the murder had been performed on contract or by plan.

Creech I, 670 P.2d at 465; see also Creech IV, 507 U.S. at 466-67.

Creech was charged with Jensen’s first-degree murder and initially pled not guilty. Creech

I, 670 P.2d at 465. Over his attorney’s strenuous objection, Creech eventually pled guilty to

Jensen’s first-degree murder.

Id.

At Creech’s sentencing hearing, Dr. Floyd Heyrend, a

psychiatrist who testified for Creech during his Valley County murders trial, testified for the state

that Creech “fell within a diagnostic category which we call sociopathic personality type,

antisocial.” (Resp’s App., pp.31-33.) Dr. Heyrend had examined Creech since Jensen’s murder

and had Creech complete additional testing. (Id., pp.35-36.) Not only did Dr. Heyrend opine there

was “absolutely no difference between [Creech’s] condition in 1974 and his present condition,”

but Creech “suffers from no organic brain syndrome.” (Id., pp.37-38.)

Dr. John Stoner was retained by Creech. After having Dr. Steve Thurber conduct a

neurological evaluation and conducting additional tests himself (Pet’s App., pp.286-91), Dr.

Stoner diagnosed Creech with “antisocial personality disorder,” which is “commonly seen as the

criminal personality,” schizotypal personality disorder, and borderline personality disorder (id.,

pp.292-97). Dr. Stoner agreed that Dr. Thurber found “no organic brain syndrome which is related

to this crime.” (Id., p.320.) However, beyond organic brain syndrome “related to this crime,” Dr.

Stoner opined that Creech’s “pattern of subtest scores strongly suggest[ed] the presence of an

organic brain disorder.” (Id., p.308; see also id., pp.312-20.) The trial court issued written findings

and sentenced Creech to death for Jensen’s murder. Creech I, 670 P.2d at 466. The Idaho Supreme

Court initially vacated and remanded Creech’s death sentence because of the trial court’s failure

to read its written findings in open court. Id. at 466 n.1. After reading those written findings in

open court, the trial court again sentenced Creech to death. Id. In 1983, the Idaho Supreme Court

affirmed Creech’s conviction and death sentence. See generally Creech I.

While his appeal was pending, Creech filed a motion to withdraw his guilty plea, which

the trial court refused to address until his appeal was completed. State v. Creech (Creech II), 710

P.2d 502, 503 (Idaho 1985). After the Idaho Supreme Court refused to address Creech’s appeal

from the denial of his motion because it was not an appealable order, the trial court entered an

order setting a deadline for the filing of all post-conviction matters. Id. at 503-04. Creech renewed

his motion, but no other post-conviction relief was requested. Id. at 504. The trial court denied

Creech’s motion, and the Idaho Supreme Court affirmed. See generally Creech II.

Creech then filed his first federal habeas petition, which the district court denied. On

appeal, the Ninth Circuit affirmed in part and reversed on three grounds. Creech v. Arave (Creech

III), 947 F.2d 873, 881-85 (9th Cir. 1991). This Court granted certiorari regarding one issue –

whether Idaho’s “utter disregard” aggravating factor “as interpreted by the Idaho Supreme Court

adequately channels sentencing discretion as required by the Eighth and Fourteenth Amendments.”

Creech IV, 507 U.S. at 465. Based upon that question, this Court reversed, but remanded for

further proceedings because Creech was entitled to resentencing pursuant to the Ninth Circuit’s

ruling that the trial court also erred by refusing Creech the opportunity to present new mitigation

evidence when the 1982 written findings were later read in open court. Id. at 478-79.

On remand, the resentencing commenced in March 1995. State v. Creech (Creech V), 966

P.2d 1, 6 (Idaho 1998) (Pet’s App., pp.169-187). Pursuant to Creech’s request, an updated

presentence report was completed. Id. During the resentencing, the trial court took judicial notice

of Creech’s entire file dating back to 1981, including all the prior evidence and testimony. Id. at

9. Additionally, during his testimony and allocution, Creech agreed he had threatened to kill other

inmates. (Resp’s App., pp.53, 58-60.) Creech’s new expert, Dr. Steven Brown, also testified

regarding his review of Creech’s prior mental health records, which were “quite substantial,” and

explained that all the experts agreed, Creech “does not have a serious mental illness. He has

antisocial personality disorder, and sometimes under a great deal of stress he breaks down.” (Pet’s

App., p.238.) Dr. Brown discussed his review of Creech’s prison records that included information

regarding other murders committed by Creech and his disciplinary offense reports. (Id., pp.23839.)

Dr. Brown completed psychological testing with Creech, which included the HAIR

psychopathy that scored Creech “extremely high compared to other prisoners, in the 96 percentile.

And what that means to me is he’s a classic psychopath.” (Id., pp.239-40.) Dr. Brown concurred

with “[e]very professional who has seen [ ] Creech” and diagnosed him with antisocial personality

disorder. (Id., p.240.) However, Dr. Brown explained that psychopathy is “an interaction of their

biology, their psychology, and then the culture they live in.” (Id., p.240.) Moreover, “there is good

evidence that there is some biological disturbance in psychopaths,” which means there is a

“biological contribution” (id.), that is mitigating because Creech “had no choice over his genes.

And that probably helped contribute to this messed-up central nervous system” (id., p.245).

Addressing Dr. Brown’s testimony, the trial court accepted “that the defendant may be

biologically predisposed to violence.” (Resp’s App., p.3.) However, after reviewing the evidence

presented at the prior sentencing, the updated P.S.I., and the evidence from the resentencing, the

court concluded the state had proven five statutory aggravating factors and imposed the death

penalty because the collective mitigation did not outweigh any of the individual statutory

aggravating factors. (Resp’s App., pp.5-7)

Creech again sought post-conviction relief, which the trial court denied after an evidentiary

hearing. (Resp’s App., pp.8-27.) Discussing mental health issues generally, the court recognized

mental health explanations are “a two-edged sword for Creech” because “it is clear the defense

had to try to explain [his] violent history as mental aberrations over which he had no control, but

on the other hand the risk being ran was that the defense of mental aberration would not be reached

by the mental health officials who examined him. This was strategy which the court will not

second guess.” (Id., p.25.) Discussing the claim of ineffective assistance of counsel (“IAC”)

regarding trial counsels’ investigation and presentation of mitigation evidence at the resentencing,

the court addressed only prejudice, concluding “the outcome of the sentencing would not have

changed” because the court’s “interest was (1) whether Creech had killed Jensen; (2) was Creech

predisposed to take human life[;] and (3) was he incapable of comprehending the outcome of his

actions.” (Id., p.26.) Creech’s childhood history was “incidental,” “the possibility of a biological

predisposition was listed as a mitigating factor,” and “the suggestion that [Jensen] was a punk was

also listed.” (Id.)

In a consolidated appeal, the Idaho Supreme Court affirmed Creech’s death sentence and

denial of post-conviction relief. See generally Creech V. Addressing IAC regarding trial counsels’

investigation and presentation of mental health evidence at the resentencing, the court found

Creech failed to establish deficient performance because he did not “state exactly what mitigating

evidence was omitted by his trial counsel,” and failed to establish prejudice because “the outcome

of the resentencing hearing would not have changed with additional mitigating evidence.” Id. at

20.

Creech’s second Petition for Writ of Habeas Corpus was filed January 20, 2000. Creech v.

Richardson (Creech VII), 59 F.4th 372, 380 (9th Cir. 2023) (Pet’s App., pp.1-45). Federal habeas

proceedings were stayed until 2005, while Creech returned to state court and filed a successive

post-conviction petition, id., that included a claim that the length of his confinement was

unconstitutional (“Lackey claim”), 2 Creech v. State (Creech VI) 51 P.3d 387, 391 (Idaho 2002)

(Pet’s App., pp.164-68). Pursuant to I.C. § 19-2719, the trial court dismissed Creech’s petition and

the excessive confinement claim because it could have been raised in his first post-conviction

petition after being resentenced. Id. 3

The Lackey claim is based upon Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting

the denial of certiorari), where Justice Stevens opined the Court should consider whether spending

17 years on death row violates the Eighth Amendment.

Creech filed a second successive post-conviction petition contending his death sentence was

unconstitutional based upon Ring v. Arizona, 536 U.S. 284 (2002), which the state courts

summarily rejected based upon I.C. § 19-2719.

When Creech returned to federal court in March 2005, he filed the operative petition here

that contains multiple IAC claims at the resentencing. Creech VII, 59 F.4th at 380. While the

district court recognized many of Creech’s claims are procedurally defaulted and would be

dismissed unless Creech could demonstrate cause and prejudice, including the Lackey claim

(Claim 45), the court concluded some sub-claims would proceed to a merits determination,

including the IAC sub-claims regarding the investigation and presentation of Creech’s mental

health at the resentencing (Sub-Claims 4, §§ 100(c), (d), and (j)). (Pet’s App., pp.161-62.) Creech

filed a motion seeking an evidentiary hearing that was supported with additional evidence

contending he suffers from organic brain disorder, but the district court denied his motion because

it was foreclosed by 28 U.S.C. § 2254(e)(2). Creech VII, 59 F.4th at 381. Nevertheless, the court

considered the additional evidence Creech proffered, but concluded, “[m]uch of this information

was already before the state courts, albeit in a less specific way,” and 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.” Id. While a

“neurologist’s opinion that Creech has brain damage may be more specific than Dr. Brown’s

testimony, [ ] it would have provided only a modest counterweight to the heavy aggravating

factors.” Id. Ultimately the district court dismissed the petition with prejudice but granted Creech

a certificate of appealability (“COA”) regarding the mental health sub-claims. Id.

After the initial oral argument before the Ninth Circuit in Creech VII, this Court issued

Martinez v. Ryan, 566 U.S. 1, 17 (2012), which 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.” Over the state’s objection, the Ninth Circuit remanded to permit the

district court to address Martinez in the first instance and how it affected IAC sub-claims stemming

from Creech’s resentencing. Creech VII, 59 F.4th at 381.

On remand, although Creech asserted that 18 IAC sub-claims should be reexamined under

Martinez, he briefed only six sub-claims. (Pet’s App., p.85-87.) The court determined the subclaims not briefed were waived, leaving the sub-claims set forth in ¶¶ 100(a), (b), (d), (j), (o)(iii),

and (o)(iv). (Id., pp.87-90.) In ¶ 100(a), Creech contended trial counsel failed to prepare, develop,

and present a coherent sentencing strategy, which the court determined was procedurally defaulted.

(Id., pp.98-99.) The court further reasoned that Creech failed to establish Martinez’s second prong

– ineffective assistance of post-conviction counsel – because he failed to establish deficient

performance or prejudice as governed by Strickland v. Washington, 466 U.S. 668, 687 (1984).

(Id., pp.99-103.) The district court concluded the five remaining sub-claims – IAC for failing to

investigate and present mitigation regarding family mental health issues, head injuries, organic

brain damage, psychosis, and mental impairment – were decided on the merits by the Idaho

Supreme Court. (Id., p.106.)

However, pursuant to Ninth Circuit precedent, Creech contended those sub-claims were

“fundamentally altered” based upon evidence that was presented for the first time in federal court. 4

Carefully examining the new evidence, including neuropsychological evaluations of Creech

conducted by Drs. Michael Gelbort and Jonathon Pincus and an unknown neuropsychologist who

habeas counsel had consulted, and comparing that evidence with the evidence presented in state

court, the court concluded the sub-claims were not fundamentally altered and, therefore, were not

procedurally defaulted and subject to Martinez. (Id., pp.108-24.) The court recognized the new

See Dickens v. Ryan, 740 F.3d 1302, 1319-22 (9th Cir. 2014) (en banc).

mitigation evidence supports “an inference that Creech might have a genetic or biological

predisposition to violence,” but “the postconviction court already had such evidence before it.”

(Id., p.123.) Ultimately, the court dismissed the sub-claims, but granted a COA regarding whether

the five claims were fundamentally altered and subject to Martinez. (Id., pp.127-26.)

With the assistance of new counsel, Creech filed a motion for reconsideration with a

plethora of attachments that had never been presented in any state court. (Pet’s App., pp.46, 6061.) While the district court initially declined to consider any of this additional evidence (id.,

pp.61-73), the court explained why, even if Creech’s mental health IAC claims were procedurally

defaulted, he failed to demonstrate prejudice from post-conviction counsel’s representation as

required by part of Martinez’s second prong (id. at 74). The court explained it had “previously

recounted the details of the horrific, deliberate murder of David Jensen,” which was “one of the

most meticulously-planned and carefully-orchestrated murders that the [court] has seen in thirty

years on the bench,” and rejected Creech’s “distasteful attempt to minimize the brutal nature of his

crime.” (Id., pp.74-75.)

In a February 6, 2023 amended opinion authored by Judge William Fletcher, the Ninth

Circuit recognized that Creech’s case is governed by the dictates of the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”). Creech VII, 59 F.4th at 382. Addressing Creech’s claim

that trial counsel were ineffective in their investigation and presentation of mental health evidence

at the resentencing, the Ninth Circuit followed AEDPA mandates and concluded the “Idaho

Supreme Court reasonably found a lack of prejudice under the second prong of Strickland [v.

Washington, 466 U.S. 668, 687 (1984)].” Id. at 385. The court carefully reviewed the mitigation

presented, including the updated presentence report “that contained substantial mental health

evidence,” “character reference letters and testimony regarding Creech’s family background and

mental health history,” “expert testimony that there was likely a biological basis for Creech’s

violent tendencies,” and the aggravating evidence that “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.” Id. at 385-86.

The court also addressed Creech’s argument that his IAC mental health claims were

fundamentally altered and, therefore, were procedurally defaulted because the evidence was never

presented to the state courts. Id. at 386-89. Initially, the court acknowledged that Shinn v. Ramirez,

142 S.Ct. 1718, 1734 (2022), greatly restricts the court’s consideration of a Martinez claim beyond

what is already contained in the state court record. Creech VII, 59 F.4th at 387-88. However, even

in the absence of Ramirez, the court reasoned that Creech’s new evidence regarding brain damage

and organic brain disorder “was largely duplicative of evidence that had been introduced during

his 1982 sentencing and his 1995 resentencing.” Id. at 388. The court expressly relied upon the

testimony of Creech’s sister, Virgina Plageman, the testimony of Dr. Stoner that Creech’s mental

tests “strongly suggested the presence of an organic brain disorder,” and Dr. Brown’s testimony at

the resentencing that Creech “was a psychopath.” Id. The court explained that under Ninth Circuit

precedent, Dr. Brown’s diagnosis that Creech is a psychopath, “standing alone, could have been

aggravating rather than mitigating evidence.” Id. at 388-89 (citing Mann v. Ryan, 828 F.34d 1143,

1161 (9th Cir. 2016)). However, the court recognized Dr. Brown was testifying on behalf of Creech

and that his testimony, “on the whole,” was mitigating, because Dr. Brown opined “that there

probably was a ‘biological predisposition’ for Creech’s psychopathy” and “that there was

“‘probably a biological contribution’ to Creech’s mental state and behavior.” Id. at 389. The court

further explained, “Evidence of possible brain damage from a severe fall requiring hospitalization,

of an ‘organic brain disorder,’ and of a ‘biological predisposition’ and ‘biological contribution’ to

a mental disorder–that is, evidence of mental dysfunction caused by factor beyond a defendant’s

control–is mitigating evidence.” Id. Additionally, the Ninth Circuit held that “the proffered

additional evidence of brain damage and organic factors[, presented for the first time in federal

court,] was not sufficient to transform Creech’s ineffective-assistance-of-trial counsel subclaims

into new claims.” Id. Alternatively, under Ramirez, the court held it could not even consider the

new evidence and, therefore, “Creech’s Martinez claim necessarily fails.” Id. Ultimately, the

Ninth Circuit affirmed the district court’s denial of Creech’s IAC mental health sub-claims.

Creech also sought a COA on his Lackey claim. Id. at 393. The Ninth Circuit recognized

the district court found the claim was procedurally defaulted, but “putting aside the procedural

default,” the Ninth Circuit explained “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.” Id. at 394. Consequently, the court declined to grant a COA. Id.

REASONS FOR DENYING THE WRIT

Creech’s Psychopathy Claim Does Not Warrant Review By This Court

Creech has a fundamental misunderstanding of the procedural and legal posture of his

“psychopathy” claim that is clearly designed to merely delay his execution, a tactic he has

employed for over 41 years. Initially, Creech failed to properly raise the question he presents to

this Court to the Ninth Circuit. Rather, the claim before the Ninth Circuit was based upon IAC at

Creech’s resentencing and whether he met his burden of establishing the Idaho Supreme Court’s

decision regarding counsels’ investigation and presentation of mental health mitigation was

contrary to, or an unreasonable application of, this Court’s precedent. Creech completely ignores

the fact that his claims before the Ninth Circuit, and necessarily before this Court, are governed by

AEDPA. Moreover, Creech has a serious misunderstanding regarding what the Ninth Circuit

actually said about psychopathy and is basically asking this Court to grant certiorari on a question

decided by the Ninth Circuit years earlier in Mann, 828 F.3d at 1161. Further, the cases cited by

Creech do not establish any kind of “irreconcilable conflict among circuit court opinions on

whether a defendant’s psychopathy ought to be automatically understood as aggravating or

whether it can under certain circumstances be mitigating.” (Petition, p.9.) Finally, the request

made by Creech – that courts must always consider psychopathy as aggravating – is untenable

because each case is governed by the evidence presented by the respective parties.

This Court Does Not Address Questions That Were Not Raised Below

This Court has repeatedly held that federal constitutional questions must be raised in the

court below, and questions raised for the first time before this Court will not be addressed. Adarand

Construction, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (quotes and citation omitted) (“[T]his is a

court of final review and not first view.”). In U.S. v. Ortiz, 422 U.S. 891, 898 (1975), the Court

reviewed the Government’s brief in the Ninth Circuit and found “it did not raise this question

below.” Consequently, the Court “decline[d] to consider this issue, which was raised for the first

time in the petition for certiorari.” Id.; see also Blessing v. Freestone, 520 U.S. 329, 340 n.3 (1997)

(declining to address questions that were not raised below); McGoldrick v. Compagnie Generale

Transatlantique, 309 U.S. 430, 434 (1940) (“[I]t is also the settled practice of this Court, in the

exercise of its appellate jurisdiction, that it is only in exceptional cases, and then only in cases

coming from the federal courts, that it considers questions urged by a petitioner or appellant not

pressed or passed upon in the courts below.”). The Court has also declined to address questions

that were raised only on reconsideration. See Bloeth v. New York, 82 S.Ct. 661, 662 (1962)

(concluding the Court was without jurisdiction to address questions that were not raised below

until the second motion for reargument).

There are sound reasons for not considering questions raised for the first time before this

Court, including that “the record is very likely to be inadequate, since it certainly was not compiled

with those questions in mind.” Cardinale v. Louisiana, 394 U.S. 437, 439 (1969); see also Adams

v. Robertson, 520 U.S. 83, 90-91 (1997) (explaining that requiring parties to raise issues below

assists the Court “by promoting the creation of an adequate factual and legal record”). Moreover,

even “‘[w]here difficult issues of great public importance are involved, there are strong reasons to

adhere scrupulously to the customary limitations on our discretion.’” Siegert v. Gillery, 500 U.S.

226, 238-39 (1991) (Marshall, J., dissenting) (quoting Illinois v. Gates, 462 U.S. 213, 224 (1983)).

The question Creech now presents to this Court requests a rule that psychopathy should

always be considered aggravating evidence. (Petition, pp.i, 8-31.) However, the issue he presented

to the Ninth Circuit was whether trial counsel were ineffective at the resentencing for failing to

investigate and present mental health mitigation, which was overlaid with the restrictions imposed

by AEDPA, specifically 28 U.S.C. § 2254(d). (Pet’s Ninth Circuit Opening Brief, Dkt. 114, pp.4,

22-42.) The two questions are clearly not the same and are not even governed by the same legal

standards. The closest Creech came was when he argued, “Dr. Brown’s association of

psychopathology with these aggravating qualities is consistent with the term’s usual usage in the

capital context. It is for that reason that the construct itself is of a prejudicial nature, as it involves

an equation of psychopathy with wickedness and evil, and creates an implication that psychopathic

individuals are subhuman.” (Id., p.32) (quotes and citation omitted). Creech then argued, “With

that in mind, it is not hard to see why psychopathology is properly considered an aggravator, not

a mitigator. It was deficient performance for resentencing counsel to present evidence that actively

weighed in favor of the own client’s execution.” (Id., p.33) (emphasis and citations omitted).

However, at no time did Creech address the question he now presents, requesting that the Court,

under the restrictions created by AEDPA, create a new rule that evidence of psychopathy must

uniformly be considered aggravating evidence. Indeed, such a rule would violate AEDPA’s

mandate that habeas relief cannot be granted when there is no clearly established Supreme Court

precedent. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[I]t is not an unreasonable

application of clearly established Federal law for a state court to decline to apply a specific legal

rule that has not been squarely established by this Court.’”)

Moreover, Creech is simply wrong when he states, “the Ninth Circuit below characterized

psychopathy as mitigating.” (Petition, p.8) (emphasis omitted). The court did no such thing.

Rather, addressing Creech’s Martinez argument, the court recognized that Dr. Brown testified that

Creech was a psychopath, and under Ninth Circuit precedent, “that testimony, standing alone,

could have been aggravating rather than mitigating evidence.” Creech VII, 59 F.4th at 388-89

(emphasis added) (citing Mann, 828 F.3d at 1161). However, Dr. Brown’s testimony was not

“standing alone.” Rather, “[h]e testified that there probably was a ‘biological predisposition’ for

Creech’s psychopathy. He testified that it was highly unusual that Creech and two of his brothers

were murderers, and that there was ‘probably a biological contribution’ to Creech’s mental state

and behavior.” Id. at 389. The court then explained, “Evidence of possible brain damage from a

severe fall requiring hospitalization, of an ‘organic brain disorder,’ and a ‘biological predisposition’

and ‘biological contribution’ to a mental disorder–that is, evidence of mental dysfunction caused

by factors beyond a defendant’s control–is mitigating evidence.” Id.

Perhaps it is this mischaracterization of the Ninth Circuit’s decision that drives the question

Creech presents to this Court for the first time. Irrespective, because the question he now presents

to this Court – that is based upon a misunderstanding of the Ninth Circuit’s decision – was never

presented to the court below, his Petition for Certiorari should be denied.

Creech Has Failed To Establish Disagreement Between The Federal Circuits

Regarding Whether Psychopathy Is Categorically Aggravating

Despite Creech’s valiant efforts to create a “split” among the federal circuits, no such

disagreement exists. Yes, various cases have described numerous personality disorders as being

potentially valuable aggravation evidence, but none of the cases cited by Creech have conclusively

“deemed psychopathy aggravating in capital cases without qualification.”

(Petition, p.9)

(emphasis added). For example, in U.S. v. Price, 949 F.3d 1240, 1254 (10th Cir. 2019), the question

was whether the district court erred by rejecting an IAC claim without the benefit of an evidentiary

hearing. In reviewing the declaration of a defense expert, Dr. Michael Gelbort, who was retained

by trial counsel but did not testify at trial, the Tenth Circuit opined that discrediting the

government’s expert, Dr. J. Randall Price, “would have been critical to the defense, since Price, in

contrast to the [other] defense experts who testified at trial, opined that Fields suffered from an

untreatable personality disorder with anti-social and psychopathic narcissistic and dependent traits

and features.” Id. at 1257. There was nothing in the court’s opinion even hinting that, “without

qualification,” psychopathy was aggravating, only that it was “critical” to challenge the

government’s expert’s opinion in that specific case. Ultimately, the case was remanded for an

evidentiary hearing because the court was “unable to say that ‘the files and records of the case

conclusively show that Fields was not prejudiced by his trial counsel’s failure to present Gelbort

as a witness at trial.” Id. at 1259.

Creech also overstates the Ninth Circuit’s analysis in Atwood v. Ryan, 870 F.3d 1033, 1063

(9th Cir. 2017). True, relying upon several Ninth Circuit precedent, the court absolved counsel of

performing deficiently by not conducting further mental health investigation. Id. But that analysis

was not based upon psychopathy being characterized as aggravating “without qualification.”

Rather, the court explained, “evidence of an antisocial personality disorder may be highly

damaging.” Id. (emphasis added). The same is true in Reed v. Sec’y, Fla. Dept. of Corrs., 593

F.3d 1217, 1246 (11th Cir. 2010), where the court stated, “Dr. Larson’s diagnosis of antisocial

personality disorder was equally not ‘good’ mitigation.” Merely because evidence was not “good

mitigation” does not mean it should always be characterized as aggravation evidence. Likewise,

there is no indication in Foster v. Johnson, 293 F.3d 766, 781 (5th Cir. 2002), that psychopathy is,

“without qualification,” aggravating evidence. Rather, the court reasoned only that Foster failed

to establish the Mississippi Supreme Court’s factual finding regarding a mental health report and

additional psychiatric evidence “were double-edged in nature,” especially since Foster failed to

provide evidence suggesting that he suffered from “organic brain damage or other serious mental

or emotional dysfunction.” Id. The fact that evidence is “double-edged” necessarily means it can

be both mitigating and aggravating. In Guinan v. Armontrout, 909 F.2d 1224, 1230 (8th Cir. 1990)

(emphasis added), the court also used equivocal words, stating, “Whether evidence of this type

would be considered mitigating by a jury is highly doubtful,” and “[e]vidence of a antisocial

personality disorder might very well have reinforced the state’s position that Guinan was a

dangerous individual, incapable of rehabilitation in the prison system.”

Consequently, Creech has not established “disagreement between and within the circuit

courts on whether psychopathy is categorically aggravating or not.” (Petition, p.9.) Simply stated,

it depends on the facts of each specific case. See Esparza v. Sheldon, 765 F.3d 615, 623 (6th Cir.

2014) (“Although Esparza correctly observes that the diagnosis can harm as much as it helps, its

double-edged nature cuts against the categorical rule he espouses.”). Lambright v. Schriro, 490

F.3d 1103, 1125 (9th Cir. 2007), is even further afield because the Ninth Circuit’s conclusion that

antisocial personality disorder was mitigating was based exclusively upon Arizona law existing at

that time. In Morton v. Sec’y, Fla. Dep’t of Corrs., 684 F.3d 1157, 1167-68 (11th Cir. 2012), the

court rejected the notion that “antisocial personality disorder “is no more mitigating than being

‘evil’ is mitigating,” and noted “[h]abeas petitioners routinely ask us to rule that they received

ineffective assistance when their trial lawyers failed to present evidence of an antisocial personality

disorder.” Addressing Reed, 593 F.3d at 1246, the court recognized it had “never ruled that a

capital defense lawyer renders ineffective assistance as a matter of law when he introduces

evidence of antisocial personality disorder for mitigation purposes. Morton, 684 F.3d at 1168.

Indeed, the court relied upon Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), where this Court

concluded a sentencer cannot be “precluded from considering, as a mitigating factor, any aspect

of a defendant’s character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” (Emphasis, quotes, and citation omitted).

Because Eddings involved the sentencer’s failure to consider antisocial personality disorder as

mitigating evidence, 455 U.S. at 107-08, 113, the Eleventh Circuit reasoned, “there cannot be a

per se rule that a lawyer renders ineffective assistance by presenting evidence of an antisocial

personality disorder for purposes of mitigation.” Morton, 684 F.3d at 1168.

Creech challenges this interpretation of Eddings, contending psychopathy was merely

referred to “to in a single sentence, in which the Court merely recites the facts,” and that the Court’s

holding was based exclusively upon “[y]outh,” which according to Creech, was “the only

mitigating theme discussed in the opinion.” (Petition, p.14.) Once again, Creech is wrong and

misinterprets the Court’s decision in Eddings. The question before the Court was whether Eddings

received “the type of individualized consideration of mitigating factors required by the Eighth and

Fourteenth Amendments in capital cases.” Eddings, 455 U.S. at 105 (quotes, citation, ellipses

omitted). Discussing the mitigation that was presented, the Court expressly discussed the evidence

regarding Eddings’ mental health:

Testimony from other witnesses indicated that Eddings was emotionally

disturbed in general and at the time of the crime, and that his mental and emotional

development were at a level several years below his age. A state psychologist stated

that Eddings had a sociopathic or antisocial personality and that approximately

30% of youths suffering from such a disorder grew out of it as they aged. A

sociologist specializing in juvenile offenders testified that Eddings was treatable.

A psychiatrist testified that Eddings could be rehabilitated by intensive therapy over

a 15- to 20-year period. He testified further that Eddings ‘did pull the trigger, he

did kill someone, but I don't even think he knew that he was doing it.’ The

psychiatrist suggested that, if treated, Eddings would no longer pose a serious threat

to society.

Id. at 107-08 (citations and footnote omitted).

This Court also discussed the trial court’s consideration of the mitigation, including the

trial court’s refusal to consider mental health evidence, explaining, “But [the trial court] would not

consider in mitigation the circumstances of Eddings’ unhappy upbringing and emotional

disturbances,” and “the only mitigating circumstance was Eddings’ youth.” Id. at 108. It was the

trial court’s refusal to consider mitigation beyond Eddings’ youth, including psychopathy, that was

the “mitigating theme discussed in the opinion,” not his youth. (Petition, p.14.)

Creech also takes particular umbrage with decisions from the Ninth and Eleventh Circuits,

contending they “have decisions on both sides of the line.” (Petition, p.10.) And rightfully so

because evidence can be mitigating or aggravating depending on the specific facts of the given

case. Regardless, the state disputes Creech’s underlying contention. Neither Evans v. Sec’y, Dep’t

of Corr’s., 703 F.3d 1316, 1332 (11th Cir. 2013), Cummings v. Sec’y for Dep’t of Corr’s., 588 F.3d

1331, 1368 (11th Cir. 2009), nor Reed, 593 F.3d at 1246, address the question of whether

psychopathy is categorically aggravating.

Rather, Evans merely recognized the court had

previously opined that antisocial personality disorder “is a trait most jurors tend to look

disfavorably upon, that is not mitigating evidence.” 703 F.3d at 1332 (emphasis added) (quoting

Suggs v. McNeil, 609 F.3d 1218, 1231 (11th Cir. 2010)). Merely because “most jurors tend to look

disfavorably,” upon something presented by the defense does not mean it is categorically

aggravating in every case. Admittedly, in Cummings, the court, without explanation, stated,

“Cummings is left mainly with a diagnosis of antisocial personality disorder, which is not

mitigating but damaging.” 588 F.3d at 1368. However, again, the court’s statement was specific

to the facts in that case. And while the Ninth Circuit may have “grappled with the difficulty of the

question” (Petition, p.11) in Harris v. Pulley, 885 F.2d 1354, 1383 (9th Cir. 1988), the court was

addressing a claim based upon instructional error, id., at 1380, and ultimately rejected the notion

that “all or any conditions classified as mental disorders by the American Psychiatric Association

must be recognized by a state as a mitigating factor,” id. at 1383-84. Ultimately, relying upon Zant

v. Stephens, 462 U.S. 862, 879 (1983), the Ninth Circuit merely opined, “The jury is entitled to

consider the character of the defendant during the penalty phase to make an individualized

determination of the sentence.” Harris, 885 F.2d at 1384. Consequently, because the question of

whether psychopathy is mitigating or aggravating is case specific, it is little wonder there may be

divergent cases between and within the various circuits, or even the state courts. Irrespective,

Creech has failed to cite any authority mandating that psychopathy be “categorically aggravating.”

Finally, Creech’s contention that “the question is an important one of nationwide

significance” is hardly true. (Petition, p.13.) Unquestionably, IAC is a common claim in habeas

petitions. But sentencing, particularly in capital cases, is individualized based upon the “unique

characteristics of a particular criminal defendant,” and “it is the jury’s function to make the difficult

and uniquely human judgments that defy codification and that build discretion, equity, and

flexibility into a legal system.” McCleskey v. Kemp, 481 U.S. 279, 311 (1987) (quotes and citation

omitted). This Court has never mandated when evidence must be considered mitigating or

aggravating but has recognized the Eighth Amendment “requires consideration of the character

and record of the individual offender and the circumstances of the particular offense as a

constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v.

North Carolina, 428 U.S. 280, 304 (1976). Indeed, if the Court concluded a capital murderer could

never present psychopathy as mitigation, such a ruling would be contrary to the dictates of this

Court’s death penalty jurisprudence that requires individualized sentencing, including having the

sentencing authority consider, “as a mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense.” Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(emphasis omitted).

This Court has often recognized that evidence can be a “two-edged sword.” See e.g.,

Cullen v. Pinholster, 563 U.S. 170, 201 (2011) (recognizing that evidence relating to Pinholster’s

family, including mental illness and criminal problems, was “by no means clearly mitigating, as

the jury might have concluded that Pinholster was simply beyond rehabilitation”); Brewer v.

Quarterman, 550 U.S. 286, 289-90, 292-93 (2007) (footnote omitted) (concluding evidence about

depression, hospitalization for depression, obsession for a woman who dominated and manipulated

the defendant, abuse by his father, and abuse of drugs “served as a ‘two-edged sword’ because it

tended to confirm the State’s evidence of future dangerousness as well as lessen the culpability for

the crime”). However, the Court has never held that evidence must be exclusively characterized

as mitigating or aggravating. Indeed, in Atkins v. Virginia, 536 U.S. 304, 320-21 (2002), the Court

recognized that mental retardation 5 “can be a two-edged sword that may enhance the likelihood

that the aggravating factor of future dangerousness will be found by the jury.” However, rather

than characterize mental retardation as mitigating or aggravating, the Court held that “the

“While this Court formerly employed the phrase ‘mentally retarded,’ we now use the term

‘intellectual disability’ to describe the identical phenomenon.” Brumfield v. Cain, 576 U.S. 305,

308 n.1 (2015) (quotes, citation, brackets omitted).

Constitution places a substantive restriction on the state’s power to take the life of a mentally

retarded offender,” because part, “[m]entally retarded defendants in the aggregate face a special

risk of wrongful execution .” Id. at 321.

Creech has failed to establish there is disagreement between or within the circuits or states

regarding the categorization of psychopathy. Rather, the courts have uniformly reviewed the facts

of the specific case to determine the value of such evidence. This is particularly important in IAC

cases where this Court has repudiated the notion that attorneys must follow a checklist when

investigating and presenting mitigation evidence. As this Court explained in Strickland, 466 U.S.

at 689, “ There are countless ways to provide effective assistance in any given case. Even the best

criminal defense attorneys would not defend a particular client in the same way.” By preventing

defense attorneys from never presenting evidence of psychopathy, this Court would be repudiating

the individual assessment every attorney makes in presenting his client’s case to a jury.

In some cases, such as Creech’s case where every expert to have examined his mental

health prior to his resentencing opined that he was a psychopath, that could have devasting

consequences.

Unquestionably, Dr. Brown testified that Creech “has antisocial personality

disorder” and that psychological testing revealed Creech is a “classic psychopath.” (Pet’s App.,

pp.238-40.) However, Dr. Brown explained that psychopathy is “an interaction of their biology,

their psychology, and then the culture they live in.” (Id., p.240.) Moreover, “there is good evidence

that there is some biological disturbance in psychopaths,” which means there is a “biological

contribution” (id.), and that is mitigating because Creech “had no choice over his genes. And that

probably helped contribute to this messed-up central nervous system” (id., p.245). Dr. Brown’s

testimony that Creech “had no choice over his genes” was critical because “[e]very professional

who ha[d] seen [ ] Creech ha[d] diagnosed him as antisocial personality disorder.” (Id., p.240.) In

other words, the “biological contribution” was not only an outstanding vehicle to diminish every

experts’ opinion regarding psychopathy, but it was classic mitigation and the only real chance trial

counsel had to save Creech’s life, especially considering the overwhelming aggravation evidence.

Creech’s Case Is Not A Good Vehicle To Even Address, Let Alone Resolve, The

Question He Presents

For all the reasons discussed above, this is hardly the case for this Court to address the

question Creech presents, let alone resolve any alleged split between the circuits and states. Simply

stated, there is no split; the courts below have looked at the facts presented in individual cases to

determine the value of psychopathy in the context of IAC claims, which is what this Court

mandated in Lockett, Strickland, and their progeny. That is exactly what the Ninth Circuit did

when it examined all the evidence, particularly the entirety of Dr. Brown’s testimony discussing

the probability of a “‘biological predisposition’ for Creech’s psychopathy,” and concluded it was

“mitigating evidence.” Creech VII, 59 F.4th at 389.

Nevertheless, Creech embarks on a mission to castigate trial counsel by contending the

mitigation presentation was “weak” and “anemic by any means” (Petition, p.16), and contending

post-conviction counsel performed “even worse” (id., p.17.) Creech seriously understates the

mitigation trial counsel presented. As found by the Ninth Circuit, Creech’s sister, Virginia

Plageman, and her husband, Michael, both testified “about Creech’s personality, family

background, and childhood.” Creech VII, 59 F.4th at 379. Addressing just Viriginia’s attempt to

humanize Creech despite his violent past, the Ninth Circuit explained:

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 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.

Id.

The court also noted that the trial court considered the “voluminous presentence report,

updated at [trial counsel’s] request, that contained substantial mental health evidence” Id. at 385.

The court additionally discussed some of the other evidence presented at the resentencing:

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 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.

Id.

Again, stretching the facts, Creech contends counsel should have called his mother as a

witness. (Petition, p.17.) However, Virginia explained the reason Creech’s mother did not testify,

“I think my mother is just very afraid. And I think it would just destroy her…. I just don’t think

that she could physically, mentally get through it. She would be in a total tither. I think she feels

guilt and shame. I think she feels people look down on her.” (Resp’s App., pp.56-57.) The reason

for not calling Creech’s mother was not based upon deficient performance as implied by Creech

but was tactical decision to spare her the pain and agony of trying to justify her son’s murderous

history.

Not only does Creech understate the value of the mitigation presented, particularly Dr.

Brown’s opinion that there was a biological component or contribution to Creech’s mental state

and behavior, but he ignores the trial court’s post-conviction findings that explained, “The issue of

mental health examinations is a two-edged sword for Creech. On one hand it is clear the defense

had to try to explain Creech’s violent history as mental aberrations over which he had no control,

but on the other hand the risk being ran was that the defense of mental aberration would not be

reached by the mental health officials who examined him.” (Resp’s App., p.25.) The court also

noted it had considered “the possibility of a biological predisposition [that] was listed as a

mitigating factor.” (Id., p.209.) Creech likewise undervalues the significance of the powerful

aggravation, which this Court described as “chilling,” Creech IV, 507 U.S. at 465, and would have

required more than a herculean effort to overcome. In short, there was no conceivable, let alone a

substantial, “likelihood of a different result,” regardless of the mitigation evidence trial counsel

presented. See Pinholster, 563 U.S. at 189 (quotes and citation omitted).

Creech’s critique of post-conviction counsel’s performance fares no better, and likewise

ignores the massive aggravation presented by the state. (Petition, p.17.) Incredibly, in a feeble

and desperate attempt to bolster his argument, Creech notes that the attorneys in his case were

found to be ineffective years later in an unrelated case that is currently on appeal before the Ninth

Circuit. (Petition, p.18.) Of course, that says nothing about counsels’ performance in this case.

Attempting to explain his refusal to discuss the enormous aggravation in his case, Creech

contends, “[t]he Ninth Circuit did not rest its determination on an assessment of the aggravating

evidence brought forth by the prosecution.” (Petition, p.18) (emphasis omitted). Again, that is not

true; the court expressly discussed the aggravation when addressing Strickland’s prejudice prong:

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.

Creech VII, 59 F.4th at 386.

Creech also contends the standard of review strengthens his appeal “as a suitable vehicle.”

(Petition, p.19.) However, not only has Creech mischaracterized the Ninth Circuit’s opinion,

contending it was de novo review (id.), but he ignores the fact that his case is governed by AEDPA

and this Court’s recent decision in Ramirez, 142 S.Ct. 1718. The standards under AEDPA permit

relief only if the state courts’ adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; 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); see also Shoop v. Twyford 142 S.Ct. 2037, 2045 (2022).

The Ninth Circuit expressly recognized these standards and applied their limitations in

reviewing the IAC claims for which a COA had been granted. Creech VII, 59 F.4th at 382-83, 386.

It was only in the context of Martinez, and whether Creech’s claims had been “fundamentally

altered,” which would have resulted in the claims being procedurally defaulted under Ninth Circuit

precedent, that the court even hinted it might be reviewing under a de novo standard. Id. at 38689. That procedural posture, coupled with AEDPA standards, makes Creech’s case an even poorer

vehicle to address the question he presents to the Court, particularly since Ramirez bars

consideration of any of the evidence he presented for the first time before the federal district court.

As explained by Justice Ginsburg, while some substantive claims may warrant “full airing,”

AEDPA restrictions often prevent consideration of those claims, especially when the question

raised does not challenge the lower court’s decision based upon AEDPA. See Dunn v. Madison,

583 U.S. 10, 14 (2017) (Ginsburg, J., concurring).

Asserting “there is a large and consistent body of evidence proving that juries regard

psychopathy as aggravating,” Creech also contends “there is a compelling basis for the Court to

intercede in the name of science,” and any “opposing view has no scientific support.” (Petition,

pp.20-21.) However, Creech’s final argument merely solidifies the fact that he is raising a new

issue for the first time before this Court. None of this so-called “evidence” has been previously

presented to any court; not the trial court, the Idaho Supreme Court, the federal district court, nor

the Ninth Circuit. Moreover, the “evidence” Creech presents involves various articles that were

written long after he was resentenced in 1995. He has made no showing that his “evidence” was

available when trial counsel made tactical decisions to blunt the psychopathic evidence the state

was going to present from every expert that had examined Creech prior to his resentencing.

Strickland, 466 U.S. at 689, requires that “[a] fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time.”

The same is true with respect to the “evidence” discussed in Amicus Curiae’s brief; with a

single exception, every article cited was published well after Creech’s 1995 resentencing. More

importantly, Amicus Curiae especially appears to ignore the fact that the claim Creech presented

before the Ninth Circuit was IAC based upon trial counsels’ investigation and presentation of

mental health investigation, which hardly commenced from a “blank slate.” See Creech VII, 59

F.4th at 385. Rather, as repeatedly discussed above, trial counsel were in the position of finding

some way to mitigate Creech’s life history where every mental health professional that ever

examined him determined he was a psychopath. It was against this backdrop that counsel tactically

chose to find an expert who could at least soften the blow of the psychopathic diagnosis by

testifying there was a biological component to Creech’s psychopathy over which he had no control

because “had no choice over his genes.” (Pet’s App., p.245.) Consequently, contrary to Amicus

Curiae’s protestations to the contrary, Dr. Brown’s expert opinion attempted to establish that

Creech did “not have full cognitive and physical control of [his] actions and therefore, [was] less

morally culpable.” (Amicus, p.18.) Regardless, the entire argument is academic because the

evidence upon which Amicus Curiae rely was never presented to a state court, and Ramirez

generally bars federal courts from considering such evidence on the merits of an IAC claim. 142

S.Ct. at 1738 (“[W]hen a federal habeas court convenes an evidentiary hearing for any purpose, or

otherwise admits or reviews new evidence for any purpose, it may not consider that evidence on

the merits of a negligent prisoner’s defaulted claim unless the exception in [28 U.S.C. 2254] §

(e)(2) are satisfied.”).

The same is true with respect to Creech’s articles regarding so-called “prevailing norms.”

With a single exception, all the articles were published after Creech’s resentencing. Irrespective,

Creech has not established that the content of those articles constitutes “prevailing norms” at any

time, let alone in 1995. Based upon these so-called norms, Creech is basically advocating for a

bright-line rule that, if a defense attorney presents any evidence of psychopathy, the attorney’s

performance is deficient. But that rule ignores the mandate from Strickland that counsel’s

performance be judged “considering all the circumstances,” and that even prevailing norms of

practice are merely “guides to determining what is reasonable” because “[n]o particular set of

detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances

faced by defense counsel or the range of legitimate decisions regarding how best to represent a

criminal defendant.” 466 U.S. at 688-89.

Nowhere is that clearer than in Creech’s case. As recognized by the Ninth Circuit, in 1995,

when Creech was resentenced, trial counsel were not working from a “blank slate,” but were tasked

with trying to blunt the effect of a lifetime history that included “substantial mental health

evidence” where every expert who had examined Creech had opined that he was a psychopath.

See Creech VII, 59 F.4th at 385; (see also Pet’s App., pp.238, 240). Attempting to mitigate

Creech’s mental health history, counsel made the tactical decision to retain Dr. Brown who was

able to opine, “there is good evidence that there is some biological disturbance in psychopaths,”

which means there is a “biological contribution” that is mitigating because Creech “had no choice

over his genes,” which “probably helped contribute to this messed-up central nervous system.”

(Pet’s App., pp.240, 245.) While Creech contends this is not mitigating because “every mental

condition has some kind of a ‘biological contribution,’” he fails to provide any authority for such

a proposition. (Petition, p.25) (emphasis omitted). Indeed, in the preceding paragraph of Creech’s

petition, he states, “the aggravating impact of psychopathy is deepened further by the fact that ‘it

does not infer a severe mental disease’ because ‘it’s really personality characteristics that meet

certain criteria.’ Guinan [v. Armontrout, 909 F.2d 1224, 1229 (8th Cir. 1999)]. Stated differently,

to be a psychopath is simply to be a bad person, full stop.” (Petition, p.24; see also p.27

(“Psychopathy … is nothing more than a word for a person who commits the bad behavior.”).

Creech again misconstrues the Ninth Circuit’s decision by contending psychopathy and

brain damage were treated “as virtually interchangeable, in that both relate to a ‘mental dysfunction

caused by factors beyond a defendant’s control.’” (Petition, p.26) (quoting Creech VII, 59 F.4th at

389.) When the entirety of the Ninth Circuit’s opinion is reviewed, which was based upon all the

evidence presented including Dr. Brown’s testimony, it becomes obvious that Creech has cherrypicked excerpts of the court’s opinion. Specifically, the court reasoned:

Dr. Brown was testifying on behalf of rather than against Creech, and he had

presented evidence that was, on the whole, mitigating. He testified that there

probably was a “biological predisposition” for Creech's psychopathy. He testified

that it was highly unusual that Creech and two of his brothers were murderers, and

that there was “probably a biological contribution” to Creech's mental state and

behavior. Evidence of possible brain damage from a severe fall requiring

hospitalization, of an “organic brain disorder,” and of a “biological predisposition”

and “biological contribution” to a mental disorder—that is, evidence of mental

dysfunction caused by factors beyond a defendant's control—is mitigating

evidence.

Creech VII, 59 F.4th at 389.

The state has no doubt that brain damage “is a very different creature from psychopathy.”

(Petition, p.26.) However, the focus is not brain damage or psychopathy but Dr. Brown’s expert

opinion that, in Creech’s case, there is a biological component to Creech’s psychopathy over which

he had no control, and that biological component is mitigating.

Finally, Creech takes issue with the evidence of brain damage that was presented,

contending the Ninth Circuit’s discussion was “misleading, as the defense essentially repudiated

the presence of brain damage in state court.” (Petition, p.29.) At the first sentencing, Dr. Stoner

explained that he had Dr. Thurber conduct a neurological examination of Creech. (Pet’s App.,

p.287.) When asked if he was qualified to diagnosis organic brain syndrome or organic brain

disorder, Dr. Stoner replied:

[T]here are a number of tests that I routinely administer that are strongly

impacted by or tend to reflect organic brain dysfunction so that the overall presence

of some kind of organic brain disorder is something when it does appear on those

tests, I feel qualified to diagnosis.

The specific brain dysfunction that would result in those disorders, I am not

qualified to access and was the reason for the referral to Dr. Thurber for a more

specific examination.

(Pet’s App., pp.308-09.)

Dr. Stoner was not surprised that the state’s expert opined Creech did not suffer from

organic brain disorder, but simply disagreed with Dr. Heyrend’s opinion (id., p.309), and later

detailed the tests upon which he relied (id., pp.312-20). While Dr. Stone agreed that Dr. Thurber

had opined “there was no organic brain syndrome,” that opinion was limited to what was “related

to this crime.” (Id., p.320.) In other words, Dr. Thurber never concluded that Creech did not suffer

from organic brain syndrome generally, but apparently opined organic brain syndrome did not

contribute to Jensen’s murder.

Addressing the other mental health evidence as a whole, which included Dr. Brown’s

testimony, the Ninth Circuit merely noted there was “[e]vidence of possible brain damage from a

severe fall requiring hospitalization, of an ‘organic brain disorder,’ and of a ‘biological

predisposition’ and ‘biological contribution’ to a mental disorder,” all which are “evidence of

mental dysfunction caused by factors beyond a defendant’s control,” which “is mitigating

evidence.” Creech VII, 59 F.4th at 389. Irrespective of how the Ninth Circuit’s discussion is

characterized, it was in the context of possibilities, and whether the additional evidence presented

for the first time in federal court could overcome the hurdles associated with Martinez and

Ramirez, which is one more reason to reject Creech’s petition – it ignores the procedural posture

of his case and asks this Court to review a substantive issue that was never raised below and

requires inquiry into evidence that is equivocal at best. In short, this is not a case to explore the

so-called “crucial distinction between psychopathy and brain damage” (Petition, p.30), because it

simply doesn’t matter in Creech’s case. The question is whether the Ninth Circuit properly

affirmed the district court’s decision denying habeas relief because Creech failed to overcome his

burden under AEDPA of showing the Idaho Supreme Court’s decision regarding his mental health

IAC claims was contrary to, or an unreasonable application of, Strickland, particularly since he

cannot rely upon evidence that was never presented to the state courts.

As Justice Sotomayor recognized in Kansas v. Carr, 577 U.S. 108, 128 (2016) (Sotomayor,

J., dissenting) (quotes and citation omitted), “Even where a state court has wrongly decided an

important question of federal law, we often decline to grant certiorari, instead reserving such grants

for instances where the benefits of hearing a case outweigh the costs of so doing.” See also Hittson

v. Chatman, 576 U.S. 1028 (2015) (Ginsburg, J., concurring in the denial of certiorari) (concurring

in the denial of certiorari because “the Eleventh Circuit would have reached the same conclusion

had it properly applied Ylst [v. Nunnemaker, 501 U.S. 797 (1991].”). While the Ninth Circuit did

not “wrongly decide” anything, because the question raised by Creech for the first time does not

address the underlying AEDPA issues, the actual IAC claim he raised below, or even the Martinez

questions, there is no reason to expend this Court’s valuable time and resources on a case where

the ultimate outcome will not change.

II.

Creech’s Lackey Claim Does Not Warrant Review By This Court

Not only is Creech’s Lackey claim unworthy of review by this Court on the merits, but it

fails because Creech has never challenged the Ninth Circuit’s denial of a COA regarding the claim,

and it is procedurally defaulted since the Idaho Supreme Court refused to address the merits of the

claim based upon an adequate and independent state bar.

This Court Is Without Jurisdiction To Address Creech’s Lackey Claim Because He

Has Not Challenged The Ninth Circuit’s Denial Of A COA Regarding The Claim

“As mandated by federal statute, a state prisoner seeking a writ of habeas corpus has no

absolute entitlement to appeal a district court’s denial of his petition.” Miller-El v. Cockrell, 537

U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). Therefore, before a habeas appeal may be

entertained by a circuit court, the prisoner must first obtain a COA from the district court or a

circuit judge. Id. at 336. Unless a COA issues, “federal courts of appeals lack jurisdiction to rule

on the merits of appeals from habeas petitioners.” Id.

To obtain a COA, the prisoner “must make a substantial showing of the denial of a

constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). And under 28 U.S.C. §

2253(3), the prisoner must “indicate which specific issue or issues satisfy” the substantial showing

standard. In other words, “the petitioner [must] meet the ‘substantial showing’ standard with

respect to each issue he seeks to raise on appeal.” Lambright v. Stewart, 220 F.3d 1022, 1024 (9th

Cir. 2000). When a constitutional claim is dismissed on procedural grounds without reaching the

merits, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petitioner states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack, 529 U.S. at 484. Therefore, “whether a COA should issue where the petition was

dismissed on procedural grounds has two components, one directed at the underlying constitutional

claim and one directed at the district court’s procedural holding.” Id. at 484-85.

While this Court generally does “not have jurisdiction if jurisdiction was lacking in the

Court of Appeals,” the Court has fashioned an exception “[w]hen the lower courts deny a COA

and we conclude that their reason for doing so was flawed.” Ayestas v. Davis, 138 S.Ct. 1080,

1088 n.1 (2018). However, the Court has not extended that exception to cases in which the prisoner

does not challenge the circuit court’s denial of a COA and merely challenges the merits of the

claim without any court having issued a COA. Here, neither the district court nor the Ninth Circuit

issued a COA. The Ninth Circuit expressly recognized that Creech was seeking an expansion of

the district court’s denial of a COA, explaining, “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.” Creech VII, 59 F.4th at 393. Although Creech implicitly

contends the court granted a COA, stating the court’s analysis “goes straight to the heart of the

constitutional theory” (Petition, p.33), he is wrong because the court expressly stated, “We

therefore decline to grant a COA for this claim.” Creech VII, 59 F.4th at 394. Admittedly, the

court put aside the fact that the district court found the claim was procedurally defaulted and noted

“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.” Id. But

that single sentence merely addressed the first component of the requirement for granting a COA

on a procedurally defaulted claim – “whether the petition states a valid claim of the denial of a

constitutional right.” See Slack, 529 U.S. at 484. It clearly was not a “merits determination” of

the claim because the court declined to even address the second component of a procedurally

defaulted claim – that “jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id. at 485. While the court was permitted to dispose of the request

for a COA by addressing only one component, “[e]ach component of the § 2253(c) showing is part

of a threshold inquiry.” Id.

Further, Creech has not challenged the lower courts’ denial of a COA, which is a

jurisdictional prerequisite for this Court to address the merits of his Lackey claim. Rather, Creech

has addressed the merits of his claim (Petition, pp.33-40), which is entirely different than

requesting a COA or challenging the denial of a COA. Indeed, Creech has not even addressed the

standards for granting a COA. As reaffirmed in Buck v. Davis, 580 U.S. 100, 115 (2017), “The

COA inquiry … is not coextensive with a merits analysis.” Rather, “[t]his threshold question

should be decided without full consideration of the factual or legal bases adduced in support of the

claims.” Id. (quotes and citation omitted). Creech is basically asking this Court to “sidestep the

COA process by first deciding the merits of an appeal,” which “is in essence deciding an appeal

without jurisdiction.” Id. (quotes, citation, brackets omitted).

Because no court has granted a COA and Creech does not challenge the Ninth Circuit’s

denial of his request for a COA, this Court is without jurisdiction to address the merits of his claim.

This Court Does Not Address The Merits Of Procedurally Defaulted Claims

Contrary to Creech’s contention that “there are no legitimate procedural obstacles to stand

in the Court’s way” of addressing his claim (Petition, p.32), the claim is procedurally defaulted,

and Creech is not challenging that determination. Indeed, Creech concedes “the federal district

court deemed the claim defaulted,” but attempts to salvage the claim by stating, “it did so without

explanation.” (Id.) Regardless of whether the district court rejected the claim with extensive

explanation, the Idaho Supreme Court rejected the claim because it is procedurally defaulted under

I.C. § 19-2719 since it “was known or reasonably could have been known at the time he filed his

first petition for relief in 1995.” Creech VI, 51 P.3d at 391. Idaho Code § 19-2719 provides a

capital defendant one opportunity to raise all challenges to the conviction and sentence in a postconviction relief petition, which must be filed within forty-two days after entry of judgment. State

v. Rhoades, 820 P.2d 665, 676 (Idaho 1991). The only exception is “in those unusual cases where

it can be demonstrated that the issues raised were not known and reasonably could not have been

known within the time frame allowed by the statute.” Id., at 677. Claims which were not known

or which could not have reasonably been known within forty-two days of judgment must be raised

within “forty-two days after the petitioner knew or reasonably should have known of the claim,

unless the petitioner shows that there were extraordinary circumstances that prevented him or her

from filing the claim within that time period. In that event, it still must be filed within a reasonable

time after the claim was known or knowable.” Pizzuto v. State, 202 P.3d 642, 649 (Idaho 2008).

This regular and consistent application of I.C. § 19-2719 has been recognized by the Ninth Circuit.

See Hoffman v. Arave, 236 F.3d 523, 533 (9th Cir. 2001).

While it is true the Ninth Circuit “put[ ] aside the procedural default,” recognizing “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,” and then

denying Creech a COA, Creech VII, 59 F.4th at 394, that does not eliminate that the default must

be addressed before relief can be granted on the claim. And because I.C. § 19-2719 is a regularly

and consistently applied state bar, the Ninth Circuit would ultimately be required to affirm the

district court on that basis. Consequently, the claim is not well suited for this Court to address.

See Hittson, 576 U.S. 1028 (Ginsburg, J., concurring in the denial of certiorari) (concurring in the

denial of certiorari because “the Eleventh Circuit would have reached the same conclusion had it

properly applied Ylst [v. Nunnemaker, 501 U.S. 797 (1991].”).

There Is No Eighth Amendment Violation Based Upon The Delay Associated

With Creech’s Execution

In Lackey, supra., Justice Stevens first addressed the question of whether executing a

prisoner who had spent seventeen years on death row violates the Eighth Amendment. However,

while Justice Stevens discussed the alleged “importance and novelty of the question,” he also noted

“importance and novelty” “provide a principled basis for postponing consideration of the issue

until after it has been addressed by other courts.” Id., 115 S.Ct. at 1421. As noted by Justice

Thomas in Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459, 461 (1999) (citing cases) (Thomas, J.,

concurring in denial of certiorari), as of 1999, every court addressing this issue has “resoundingly

rejected the claim as meritless,” and based upon Creech’s failure to cite any court that has adopted

this “novel idea,” that has not changed in the 24 years since Knight. Simply stated, there is no

support in American constitutional tradition or this Court’s precedent to support Creech’s

claim. Id. at 459. Such claims will only prolong collateral review and “provide reviewing courts

a perverse incentive to give short shrift to a capital defendant’s legitimate claims so as to avoid

violating the Eighth Amendment.” Id. at 460.

The federal circuits addressing this issue have soundly rejected it in its entirety. See White

v. Johnson, 79 F.3d 432, 439-40 (5th Cir. 1996) (“No other circuit has found that inordinate delay

in carrying out an execution violates the condemned prisoner’s eighth amendment rights,” citing

cases). The Ninth Circuit has rejected this argument, explaining:

A defendant must not be penalized for pursuing his constitutional rights, but he also

should not be able to benefit from the ultimately unsuccessful pursuit of those

rights. It would indeed be a mockery of justice if the delay incurred during the

prosecution of claims that fail on the merits could itself accrue into a substantive

claim to the very relief that had been sought and properly denied in the first place. If

that were the law, death-row inmates would be able to avoid their sentences simply

by delaying proceedings beyond some threshold amount of time, while other

deathrow [sic] inmates – less successful in their attempts to delay – would be forced

to face their sentences. Such differential treatment would be far more “arbitrary

and unfair” and “cruel and unusual” than the current system of fulfilling sentences

when the last in line of appeals fails on the merits.

McKenzie v. Day, 57 F.3d 1493, 1994 (9th Cir. 1995) (quoting Richmond v. Lewis, 948 F.2d 1473

(9th Cir. 1990), rev’d on other grounds, 506 U.S. 40 (1992), vacated, 986 F.2d 1583 (9th Cir.

1993)).

The rationale for denying relief on this type of claim was eloquently discussed in Turner v.

Jabe, 58 F.3d 924, 933 (4th Cir. 1995) (Luttig, C.J., concurring in the judgment):

It is a mockery of our system of justice, and an affront to lawabiding (sic)

citizens who are already rightly disillusioned with that system, for a convicted

murderer, who, through his own interminable efforts of delay and systemic abuse

has secured the almost-indefinite postponement of his sentence, to then claim that

the almost-indefinite postponement renders his sentence unconstitutional. This is

the crowning argument on behalf of those who have politicized capital punishment

even within the judiciary. With this argument, we have indeed entered the theater

of the absurd, where politics disguised as “intellectualism” occupies center stage,

no argument is acknowledged to be frivolous, and common sense and judgment

play no role. And while this predictable plot unfolds with our acquiescence, if not

our participation, we lament the continuing decline in respect for the courts and for

the law.

....

This is not – or at least it should not be – a political game. The object is to

apply the law, not to defeat it through subterfuge. Petitioner’s claim should be

recognized for the frivolous claim that it is, and his delay in raising it, for the

manipulation that it is. See McKenzie v. Day, 57 F.3d 1493 (9th Cir. 1995) (en

banc), cert. denied, ___ U.S. 115 S.Ct. 1840, 131 L.Ed.2d 846 (1995). As long as

the courts indulge such sophistic arguments, then such arguments will be made, and

the politicization of capital punishment within the courts will continue.

Creech’s contention regarding “structural delays in Idaho’s capital post-conviction

scheme” is simply false. Yes, Idaho has chosen to use unitary review resulting in a consolidated

appeal addressing trial, sentencing, and post-conviction issues in a single appellate proceeding.

See I.C. § 19-2719(6). However, I.C. § 19-2719 was enacted “to ‘accomplish the purpose of

eliminating unnecessary delay in carrying out a valid death sentence.’” State v. Beam, 766 P.2d

678, 682 (Idaho 1988) (quoting I.C. § 19-2719). It is also true that ineffective assistance of

appellate counsel claims cannot be litigated in the initial post-conviction case or successfully raised

in the unitary appeal. Paz v. State, 852 P.2d 1355, 1357 (Idaho 1993). However, that is no different

than other States where IAC claims are raised in an appeal separate from the direct appeal. In

other words, there is no delay associated with Idaho’s capital post-conviction scheme that does not

exist in most other states that require all IAC post-conviction claims to be raised after the direct

appeal has been resolved. See Trevino v. Thayer, 569 U.S. 413, 429 (2013) (modifying the

Martinez test to include cases where a “state procedural framework by reason of its design and

operation, makes it highly unlikely in a typical case that a defendant will have a meaningful

opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal”). If Idaho’s

scheme spawns piecemeal litigation, it is only because capital murderers, like Creech, refuse to

abide by the dictates of I.C. § 19-2719 and continually file successive post-conviction petitions

raising claims that should have been raised in the initial petition. See Creech VI, 51 P.3d at 38891 (rejecting claims that should have been raised earlier in the initial post-conviction petition after

the resentencing). And in the height of hypocrisy, Creech complains that “Idaho has a uniquely

unforgiving avenue for successive post-conviction litigation in capital cases.” (Petition, p.36.) In

other words, he complains in one breath that I.C. § 19-2719 takes too long to resolve capital cases

and in the next breath complains it’s too fast because it’s so “unforgiving.”

Moreover, it was Creech who extended the time to resolve his Martinez arguments when

he tactically filed a plethora of new documents and mental health examinations attempting to argue

his IAC sub-claims were “fundamentally altered” from the claims addressed by the Idaho Supreme

Court, and then filed a motion to reconsider with additional attachments that had never been

presented to any state court. The victims and the people of Idaho should not be punished based

upon Creech’s tactical decisions that are designed to purposefully delay his execution.

Creech also cites the “conditions on Idaho’s death row” and “[t]he stress engendered by

[his] isolation.” (Petition, pp.37-39.) However, he has cited no evidence in the record supporting

these contentions. Moreover, considering Creech brutally murdered another inmate while in

prison after having been previously sentenced to death, it is highly unlikely (and hopeful) that he

will never be incarcerated with the general prison population. As explained by Justice Kennedy,

“despite scholarly discussion and some commentary from other sources, the condition in which

prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” Davis v.

Ayala, 576 U.S. 257, 288 (2015) (Kennedy, J., concurring).

Creech should not be permitted to pervert American criminal jurisprudence by claiming his

own unsuccessful collateral attacks warrant the granting of a new sentence. The state strongly

agrees with the concurring opinion in Turner, Creech’s claim “should be recognized for the

frivolous claim that it is, and his delay in raising it, for the manipulation it is.” Turner, 58 F.3d at

933 (Luttig, C.J., concurring in the judgment):

Creech has failed to raise an important constitutional issue that should be addressed by

this Court.

CONCLUSION

The state respectfully requests that Dunlap’s Petition for a Writ of Certiorari be denied.

DATED this 30th day of August 2023.

Respectfully submitted,

RAÚL R. LABRADOR

Attorney General of Idaho

/s/ L. LaMont Anderson

L. LaMONT ANDERSON*

Deputy Attorney General,

Chief, Capital Litigation Unit

700 W. State Street

Boise, ID 83720-0010

Telephone: (208) 334-4539

*Counsel of Record

APPENDICES

NO.-~--=::-----Fll.EO

A.M. /0 :oo

P.M.,_ _ __

APR 1 7 1995

· ByJ► . ~DEPUiY

~~~1

IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF

THE STATE OF IDAHO,

IN AND FOR THE COUNTY OF ADA

THE STATE OF IDAHO,

Plaintiff,

vs.

THOMAS EUGENE CREECH,

Case No. HCR - 10252

FINDINGS OF THE COURT IN

CONSIDERING THE DEATH PENALTY

UNDER SECTION 19-2515,

IDAHO CODE

Defendant.

This matter has been returned from the federal court system.

The earlier sentence of this court has been vacated. A new

sentencing hearing was held beginning March 13, 1995 with the

defendant being given opportunity to present any and all

evidence for this court's consideration.

I . e. Sec . 19 - 2515, this court enters its findings.

Therefore pursuant to

FINDINGS OF THE COURT IN CONSIDERING THE DEATH PENALTY

UNDER SECTION 19 - 2515, IDAHO CODE

The above defendant entered a plea of guilty to the criminal

offense of Murder of the First Degree, which under the law

authorizes the imposition of the death penalty . The court

ordered an updated presentence investigation of the defendant

and thereafter held a sentencing hearing for the purpose of

hearing all relevant evidence and argument of counsel in

aggravation and mitigation of the offense;

FINDINGS OF THE COURT - 1

Resp's App. 001

NOW, THEREFORE, the Court hereby makes the following

findings:

1 . Conviction.

The defendant while represented by court-

appointed counsel, Rolf M. Kehne, was found guilty of the

offense of Murder of the First Degree pursuant to a plea of

guilty entered in open court on August 28, 1981.

2. Presentence Report.

A presentence report was prepared by

the order of the court in 1981.

was prepared and delivered to the defendant or his counsel at

least seven (7) days prior to the sentencing hearing pursuant to

19-2515, Idaho Code, and the Idaho Criminal Rules.

3. Sentencing Hearing.

An updated presentence report

A sentencing hearing was commenced on

Ma~ch 13, 1995, pursuant to notice to counsel for the defendant.

At this hearing, in presence of the defendant, the court heard ·

relevant evidence in aggravation and mitigation of the offense

and arguments of counsel .

4. Facts Found in Mitigation.

(a) Thomas Eugene Creech was born on September 9, 195 0 and at

this time is 44 years old .

committed by male s 30 years old and younger.

Most violent acts statistically are

(b) He has completed the 11th grade and has acquired his

G .E.D. while serving in the Army.

personnel, although in 1978 he was cited in a disciplinary

violation for threatening a guard.

FINDINGS OF THE COURT - 2

For purposes of sentencing

00~63

Resp's App. 002

this court will accept that the defendant gets along with law

enforcement.

(d) Tom Creech is creative.

He is musical, writes songs and

plays guitar.

He also writes poetry and prose.

(e) He credits his current wife, Sherry, with the reduction

in disciplinary citations he has received in the last years.

The fact that Torn has been in maximum security since 1989 and

has had no opportunity to be alone with another inmate at any

time may also play a substantial factor in the reduced

disciplinary citations.

For the purposes of sentencing, this

court will accept that defendant's wife Sherry has contributed

positively to defendant's outlook.

(f) There may be a biological reason for the defendant to

be predisposed

to violence.

There is no independent factual

basis presented for this theory as it relates to this

indiv idual .

Ho wever, for the purpos e of s e nt e ncing thi s court

will accept that the defendant may be biologically predisposed

to violence .

5. Facts Found in Aggravation .

(a) Thomas Eugene Creech has told different versions to

different people regarding what happened on May 13, 1981 .

After

reviewing the investigation which occurred at that time as well

as Tom's various statements, this court determines beyond a

reasonable doubt that the murder which occurred on ttB 11 tier in

the penitentiary was planned and executed by Tom Creech to kill

FINDINGS OF THE COURT - 3

00264

Resp's App. 003

David Jensen.

All the weapons which were used in this murder

were made by Tom Creech .

so the justification

Jensen was egged on to attack Creech

of self defense could be used.

Jensen had

earlier suffered a head injury resulting in a plastic plate

covering part of his skull and limited coordination.

Tom Creech

referred to him as "spastic" .

Creech was the janitor for

B 11 tier and the only inmate who

could be out simultaneously with another inmate.

On May 13th,

Jensen was released from his cell for his hour of exercise and

shower.

Jensen approached Creech holding a weapon made up of

batteries in a sock.

The sock was later determined to be

Creech's.

Words were exchanged and Jensen swung the weapon at

Creech .

Creech was not in fear of his life; he merely took the

weapon and punched Jensen in the face.

Jensen retreated.

Creech went to his cell and made a second weapon out of a

toothbrush,

razor blade a nd wire .

He t ook this weapon t o a

second inmate who in turn gave it to Jensen and urged a second

attack. Jensen came out of his cell and again swung at Creech

causing slight cuts.

Creech went to his own cell and brought

out a radio, plugged it in uear Jensen's cell and turned it on

loud.

Creech went into Jensen's cell and began beating him with

the battery-filled sock .

Creech took breaks during the beating.

At one time he

believed that he had mortally injured Jensen but yet returned to

the cell where Jensen lay helpless and sprawled on the floor and

FINDINGS OF THE COURT - 4

stabbing, battery or aggravated assault

he was 38 years old and placed in maximum security .

statistics regarding aging and declining of violence have not

held true for this defendant; he continued to be violent after

30 years old.

(g) Tom Creech cannot be rehabilitated.

The general

Only isolation has stopped the violence.

did not decline until

Statutory Aggravating Circumstances Found Under Section

19-2515(f), Idaho Code.

These following aggravating circumstances are all found

beyond a reasonable doubt by this court.

The defendant was previously convicted of another murder,

to-wit:

March 25, 1976: Two Counts of Murder of the First

Degree. The initial sentence was death, but was

reduced to lif e on each charge by the Idaho

Supreme Court.

April 23, 19 7 9: F irst Degree Murder .

imposed was 99 years .

November 4, 1980 : First Degree Murder.

imposed was life .

Th e s e ntence

The sentence

By the murder, or circumstances surrounding its

commi ssion, the defendant exhibited utter disregard for human

life .

The defendant did not fear the victim; David Jensen was

egged on to attack the defendant with weapons made by the

defendant to provide a possible justification of self-defense.

The defendant returned to Jensen's cell and continued to beat

FINDINGS OF THE COURT - 6

002$7

Resp's App. 005

him while he lay helpless on the floor.

This murder was nothing

more than a brutal assassination.

C . The murder was one defined as Murder of the First Degree

by Section 18 - 4003, Idaho Code, subsection (c).

The defendant was under a sentence of Murder of the First

Degree at the time of his actions and with specific intent

caused the additional death of David Jensen.

D. The murder was one defined as Murder of the First Degree

by Section 18-4003, I daho Code, subsection (e) .

The defendant with specific intent committed the murder of a

fellow inmate while both were incarcerated in the Idaho State

Correctional Institution.

The defendant, by his prior conduct or conduct in the

commission of the murder at hand, has exhibited a propensity to

commit murder which will probably constitute a continuing threat

to society.

to a substantial chance of the defendant killing again.

court is unwilling to assume that future correction officials

will continue to recognize the deadliness of this defendant .

Anything less than total isolation would give rise

This

Thomas Eugene Creech murdered David Jensen while they were

Reasons Why The Death Penalty Was Imposed.

both inmates at the Idaho State Corrections Institute.

arguments presented at the earlier hearing that it was somehow

the prison officials' fault for putting Jensen in the tier with

killers; that Creech was angry because Jensen spilled syrup on

FINDINGS OF THE COURT - 7

The

00268

Resp's App. 006

the floor that Creech had just cleaned; or that Jensen was an

obnoxious punk who was going to be hurt by someone on that tier

do not come close to justifying this murder.

almost on whims with little regard or interest in the

consequences.

murders , but he has no control or chooses not to exercise

control over his actions.

that Thomas Eugene Creech receive the Death Penalty.

Tom Creech kills

He may "feel bad " at times about some of these

The protection of society demands

This court has weighed all the mitigating factors in relation

to each aggravating factor as required by the Idaho Supreme

Court decision of St. v. Charboneau and finds that all the

mitigating factors combin_ed do not outweigh each individual

aggravating factor.

THEREFORE, this Court finds that the Death Penalty should be

impos e d upon the de f endant , THOMAS EUGENE CREECH, for the

capital offense of which he was convicted.

Dated this

April, 1995.

)did7(L!£,l✓~

Robert G. Newhouse

District Judge

FINDINGS OF THE COURT - 8

Resp's App. 007

NO·----==c=-----~

FILED

~• tfD

( '

A.M . _ _ _ _.P.M.__,.___--4

DEC 1 2 1996

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF

THOMAS E. CREECH,

Plaintiff,

MEMORANDUM DECISION

AND ORDER

VS.

THE STATE OF IDAHO,

Case No. SP-OT-95-00154-D

Defendant.

POST CONVICTION RELIEF HEARING

The case before this court is a Post Conviction Relief

Proceeding brought by the Defendant, THOMAS EUGENE CREECH

(hereinafter referred to as "Creech").

held and argument was submitted by the defendant and state.

An evidentiary hearing was

Based

upon this court 's research and review it is determined that the

def~ndant's Motion for Post Conviction Relief is denied.

The case of State of Idaho v. Creech is a multi-year, multi20

court proceeding .

A review of the judicial proceedings with

emphasis on the proceedings which have taken place in the Idaho

state district court is necessary to put the current Petition for

Post Conviction Relief into perspective.

00191

MEMORANDUM DECISION AND ORDER - 1

Resp's App. 008

OVERVIEW OF JUDICIAL HISTORY

On June 8, 1981, an Information was filed against Creech

charging him with the murder of David Dale Jensen, a co-inmate at

the Idaho Maximum Security Correction facility.

Creech entered a plea of guilty to the charge brought against him.

On August 28, 1981

He plead guilty over the objections of his counsel.

On January 25,

1982, Creech was sentenced by this court to death~

A notice of

appeal to the Idaho Supreme Court was filed on January 27th. On

February 25, 1983 the Idaho Supreme Court issued an Order requiring

this district court to impose the judgment of conviction and

sentence in open court with Creech present.

complied with the order and a new Death Warrant was entered on March

The district court

24, 1983.

The Idaho Supreme Court issued i t s first decision ba s ed on the

Jensen death on May 23, 198~.

This court interprets the majority to

have made the following rulings:

Sentencing decisions made solely on the basis of live

testimony are not constitutionally mandated; the trial

court has broad discretion in deciding what evidence is

admissible at the sentencing hearing and hearsay evidence

may be contained in a presentence report;

There is no federal constitutional mandate requiring

jury participation in the sentencing process; and

Pursuant to legislative mandate, the Idaho Supreme Court

did not find the imposition of death to be

disproportionate.

MEMORANDUM DECISION AND ORDER - 2

001.~~

Resp's App.

oof

A Petition for Post Conviction Relief was filed on behalf of

Creech on June 24, 1983.

The substance of the· Relief sought was

the withdr~wal of Creech ' s guilty plea. The Idaho Supreme Cburt

issued its decision on June 20 , 1985.

interprets the majority to have determined it was not

Again, this court

manifestly unjust for this court to allow the plea to stand. The

Idaho Supreme Court reviewed the defense arguments that Creech

didn't appreciate the defenses available to him; that he was

pressured into pleading guilty; or that he plead guilty because he

was suicidally depressed.

Soon after the state decision was

issued , Creech's defense counsel began the journey through the

federal habeas corpus system.

Creech's habeas corpus proceeding wound its way through the

federal system until it reached the Ninth Circuit Court of Appeals.

The Ninth Circuit Court of Appeals' Order and Amended Opinion issued

on October 16, 1991 determined that:

The attorney's actions at the time Creech tendered the

guilty plea were reasonable;

Creech understood the necessary elements of the crime;

Found no evidence that Creech was incompetent to plead

guilty;

Creech had the opportunity to rebut, deny or explain the

information contained within the presentence investigation

MEMORANDUM DECISION AND ORDER - 3

Resp's ffi!l1~3

report and therefore Creech 1 s right of confrontation . was

not violated;

At the resentencing, Creech is entitled to present any

and all mitigating evidence that exists at the time of

the hearing;

The trial court must determine if specific intent beyond

a reasonable doubt existed before applying Idaho Code

§19-2515 (g) (7) (murder in the first degree or accompanied

with the specific intent to cause the death of a human

being); and

The phrase 11 utter disregard for human life 11 is too vague

to be valid.

The State appealed the decision to the United States Supreme

Court. The Supreme Court determined that the phrase

for human life 11 as narrowed by judicial construction was sufficient

to be constitutional.

utter disregard

This case then began its return journey back

to this court.

On April 17, 1995 this trial court, after holding a

new sentencing hearing, entered its Judgment and sentenced Cree c h

once again to death. An initial Petition for Post Conviction Relief

was filed on behalf of Creech on May 9, 1995.

STANDARD FOR REVIEW OF POST CONVICTION RELIEF PROCEEDINGS

Creech 1 s counsel has brought this Post Conviction Relief

Proceeding pursuant to Idaho Code §19-4901 et. seq ..

I.C. §19-

4901(a)

sets forth what claims are able to be raised through this

proceeding.

In essence, matters not within the record should be

raised in the post conviction relief proceedings and issues

MEMORANDUM DECISION AND ORDER - 4

00194

Resp's App. 011

previously raised and decided upon direct appeal need not be ·

considered.

This court is required by I.C. §19-4907 to make specific

findings of fact and conclusions of law relating to each issue

presented.

However where the petitioner presents no proof, the

court need not spend substantial amount of time addressing the

issues raised.

REVIEW OF PROCEEDINGS BEFORE THIS TRIAL COURT

Thomas Eugene Creech has been in the Idaho penal system since

the 1970's.

He had earlier been convicted of first degree murder in

the killing of two men near Donnelly.

The judge presiding in the

1975 case sentenced Creech to death.

The earlier sentence was

ultimately overturned by the United States Supreme Court's

determination that a state statute similar to Idaho's was

unconstitutional.

Creech was resentenced to life imprisonment.

As previously indicated, on June 8 , 1981 Creech was charged

with the murder of Jensen. On June 9th he requested and received the

services of the Ada County Public Defenders Office .

Rolf Kehne (hereinafter referred to as

Ultimately,

Kehne 11 ) was assigned as

Creech's legal representative.

Kehne was the Chief Deputy for the

Public Defender although he had never defended a first degree murder

case before.

MEMORANDUM DECISION AND ORDER - 5

00:195

Resp's App. 012

Creech plead not guilty to the charge and a trial was scheduled

to begin in November of 1981.

Discovery was p'roceeding and both

parties were readying themselves for trial.

In late August of 1981, this court received a letter dated

August 26 purporting to be from Creech requesting that he be allowed

to change his plea from "not guilty" to "guilty".

As stated in the

letter

[M]y attorneys have advised me against doing this, but at

the same time tell me I'm going to be convicted regardless of

whether I go to trial or not."

The court directed that Creech be

transported.

On August 28, 1981, Creech, the Ada County Prosecuting attorney

and Kehne were present in court.

Kehne talked with Creech prior to

the hearing.

The transcript reproduced in the Idaho Supreme Court

decision reflects this court's interrogation of Creech and clearly

reflects that Creech wished to plead guilty and was doing so over

the advice of his counsel.

which was denied.

withdraw from representing Creech which was also denied.

Kehne requested a continuance for a week

Kehne then requested that he be allowed to

This court has appended and incorporates into this decision

"Appendix A" which is a history of significant activities taken on

behalf of Creech by Kehne after this court accepted Creech 1 s plea of

guilty and denied Kehne 1 s request to withdraw as counsel .

Appendix

MEMORANDUM DECISION AND ORDER - 6

00196

Resp's App. 013

,·

A will serve as much of the Findings of Fact required of this . court

under I.C. §19-4907.

This court was notified of the remand of this case from the

federal habeas corpus proceeding in November of 1993.

14, and 20, 1995, a sentencing hearing was held.

On March 13,

The first two witnesses for the defense were Mike and Virginia

Plageman, the brother-in law and sister of Creech.

Through defense

questioning these witnesses, especially the sister, spoke of

Creech 1 s childhood and the extended family 1

s possible mental health

problems.

Virginia spoke of the difference she saw in Creech after

he fell down stairs as a child.

but Virginia candidly admitted that Creech did have a hard time

Both of them spoke well of Creech,

seeing the difference between right and wrong at an early age.

Virginia spoke of the change she has witnessed in Creech over the

last several years and credited Creech's wife and his own

introspection for the change.

Creech did speak briefly on matters which the state witnesses

had raised in their direct testimony.

A tape o f Creech playing his

guitar was played for the court.

The next live witness to testify was Dr. Steven Brown .

Dr.

Brown is a clinical psychologist who interviewed Creech several

times, administered tests to him as well as reviewed Creech's

MEMORANDUM DECISION AND ORDER - 7

00197

Resp's App. 014

presentence investigation material , especially the psychiatric tests

and reports.

Dr . Brown testified he was in agreement with the other mental

health professionals in diagnosing Creech as having an antisocial

personality disorder.

Dr. Brown hypothesized that Creech 1 s

personality disorder has a genetic base.

This theory is partially

based upon the penal history of Creech 1 s brothers.

On April 17 , 1995, this trial court issued its Findings and

sentenced Creech to death.

A Petition for Post Conviction Relief

was filed on Creech 1 s behalf soon thereafter.

PETITION FOR POST CONVICTION RELIEF AND EVIDENCE PROVIDED

There are three documents which make up the Petition for Post

Conviction Relief in this case.

The Petition f iled by former

defense attorney Rolf Kehne on May 9 , 1995; the second Petit i on

filed on May 10, 1996 by current cbunsel; and finally the document

entitled

Relief 11 filed on September 2 7, 1996.

Additional Clarification of Grounds For Post Conviction

The May 9 , 1995 Petition raises the following issues for t he

court 1 s consideration:

Creech was denied due process because he was prevented

from litigating his motion to withdraw his guilty plea

before the most rece nt sentencing;

Creech was denied his right to confront hearsay material,

as well as his right to compel attendance of witnesses;

MEMORANDUM DECISION AND ORDER - 8

Creech was not given adequate notice of the aggravating

circumstances the state claimed it would rely on;

Court violated Idaho and United State constitutions'

prohibition against double jeopardy by counting Creech 1 s

earlier homicides twice; and

The Idaho death penalty is unlawful because it should

have a jury as the fact finder at sentencing.

The second Petition incorporates all issues contained in the first

petition and rais e s the additional issue of ineffective assistance

of counsel and gives the following specifics:

Should not have allowed Creech to make statements against

interests and should have been present when Creech spoke

with mental health experts;

Failed to raise numerous challenges including (1) Idaho

capital sentencing is unconstitutional;

(2) Idaho capital

sentencing procedure is unconstitutional because it shifts

the burden to defendant;

(3) weighing of mitigating and

aggravating factors is unconstitutional; and (4) jury

should decide the sentence; and

Failed to adequately investigate and present mitigating

evidence.

The third and final document which makes up the Petition is the

Additional Clarification document which expands the ineffective

assistance of counsel issue by alleging

Kehne had a conflict of interest at the time the guilty

plea was entered and should have withdrawn from

representing Creech; and

Kehne failed to raise claims of denial of Creech 1 s Due

Process and Equal Protection rights because Ada County

has more money to spend in capital cases whereas smaller

MEMORANDUM DECISION AND ORDER - 9

,001.qq

R esp s App. 01lf

...--·

counties do not seek the death penalty because of financial

reasons.

An evidentiary hearing for the Post Conviction Relief

Proceeding was held on October 1, 2, 7, and 8, 1996 .

The first

witness to take the stand was the first wife of Tom Creech, formerly

known as Emma Jean Creech.

Emma testified that there had been a

history of physical and sexual abuse during Tom's childhood.

further testified that although she had spoken to

the sentencing, he did not have her testify.

Emma

Kehne pri or to

On cross-examination,

Emma did indicate that she has a history of mental health problems

and has been on medications.

The second witness was the child of Tom Creech, formerly known

as Shelley Creech.

Shelley testified that she had not spoken to

Kehne. She also has been hospitalized for mental illness and

believed that her mental illness could be through her father.

Former Sheriff of Ada County, Chuck Palmer, was the next

defense witness.

The importance of his testimony was that prior to

the trial in 1975 for the murder of the two men in Donnelly, Creech

had been placed under truth serum medications and revealed numerous

other homicides he had taken part in.

the consent of his earlier counsel.

The examination had been with

oozoo

MEMORANDUM DECISION AND ORDER - 10

Resp's App. 017

The first witness for the second day of the evidentiary hearing

was John Adams, former deputy Ada County Public Defender and partner

of Kehne.

both a factual witness and an expert on death penalty defense. His

testimony was that Kehne was a potential witness regarding Creech ' s

He had worked on the Creech matter with Kehne.

He was

plea of guilty and should have withdrawn because he would be a

factual witness. Adams also faulted Kehne for not supporting

Creech ' s Motion to Withdraw Guilty Plea with facts.

Adams testified that they were too busy to properly prepare for

this case and that they should have spent more time investigating

but had been limited by financial restraints.

larger counties were more willing to seek the death penalty than

The argument that

smaller, less financially solvent counties should have been argued.

Adams also faulted Kehne for not offering live witnesses to rebut

allegations.

Finally, Kehne should have challenged the earlier

Idaho murder cases.

The next witness who testified was Kehne.

His testimony was

that he has been an attorney since 1978 emphasizing mostly criminal

defense. He not only attends seminars on death penalty cases but

also teaches other attorneys criminal defense law .

He testified

that it is vital to establish a personal relationship with a

defendant and that an attorney must begin developing mitigating

MEMORANDUM DECISION AND ORDER - 11

00201

Resp's App. 018

factors as soon as possible.

.. - ,

Kehne knew Creech was seriously.at

risk to receive the death penalty in this case .

Kehne testified that when Creech changed his plea to guilty he

was suicidal, encouraged by Sheriff Palmer to change his plea and

had not yet established a relationship with Kehne wher~in Creech

would rely upon Kehne 1 s advice.

In 1981 this was Kehne 1 s first

capital defense.

Kehne also knew he had to present as much mitigating evidence

as possible at the 1995 sentencing hearing.

Kehne stated he should

have addressed Creech 1 s childhood as well as his family history of

mental illness.

Creech.

Kehne did not know of the sexual molestation of

Although he was aware of the family's history of mental

illness, the daughter's mental health history is significant and

should have been brought out .

He knew he needed to attack the

aggravating evidence and knew that the earlier presentence

investigation report would be used by the court.

limit aggravating testimony to live witnessesi didn't try to

collaterally attack any of the earlier murder convictions; didn't

He didn't try to

attack other unadjudicated murders; didn't try to withdraw Creech 1 s

guilty plea; should have tried to impugn Jensen as a victim, but the

records received were edited; and did not advise Creech to remain

MEMORANDUM DECISION AND ORDER - 12

00202

Resp's App. 019

,,•t,

silent and that counsel could be present at mental health

interviews.

On cross-examination , Kehne agreed that he had hoped the

psychological testimony would benefit Creech.

Following Kehne's testimony, Glenn Elam took the stand.

Mr.

Elam testified that until one and a half years ago he had been the

only investigator for the Public Defender's office. He was very busy

and had to prioritize his time.

Mr. Elam believes that he had not

been able to do everything that should have been done in Creech's

case.

should have been hired , a neurological report regarding Creech's

childhood head injury should have been created, Creech's juvenile

Upon further questioning he suggested a mitigation expert

records and school records should have been gathered; and they

should have focused upon the sexual abuse aspect of Creech's early

years.

Cross examination of Mr. Elam revealed that he had not been

involved in Creech's first sentencing and didn't know what Kehne had

reviewed or did .

Former Ada County Prosecuting Attorney, Jim Harris, next took

the stand.

The substance of his testimony was that Kehne had not

called him at the last sentencing to testify that larger counties

which have more money seek the death penalty more often than smaller

MEMORANDUM DECISION AND ORDER - 13

Resp's0.f,}008

counties in Idaho.

- • ..·

Cross examination revealed Mr. Harris was not

personally convinced this was the case.

The last witness presehted by the defense was current senior

Ada County Public Defender trial attorney, Amil Myshin.

testified as an expert who has been involved in capital litigation.

Mr. Myshin

His opinion was that an attorney who may also be a fact witness

should not continue to represent a defendant. Mr. Myshin also opined

that the earlier murder convictions and unadjudicated homicides

should have been attacked by Kehne on behalf of Creech.

At the

minimum, a mitigation expert should have been hired and Creech 1 s

family history of mental illness, sexual abuse and head injury

should have been explored and developed.

The psychiatric testimony

on Creech should have been scrutinized and every effort made to

reduce the affect of the testimony.

Cross examination revealed that a small group of attorneys

There is a network of

practice capital litigation defense.

attorneys who do emphasize this type of criminal defense work and

that they testify on post conviction relief proceedings for one

another.

Mr. Myshin had not reviewed the 1975 convictions and

therefore could not state with certainty whether or not the

convictions could be successfully attacked.

MEMORANDUM DECISION AND ORDER - 14

CONCLUSIONS OF LAW ON ISSUES NOT

INVOLVING INEFFECTIVE ASSISTANCE OF COUNSEL

The May 9, 1995 Petition for Post Conviction Relief Proceeding

focuses mostly on issues which have been raised, litigated and

determined in this case.

The first issue is that Creech should have been allowed to

withdraw his guilty plea prior to the last sentencing.

in Appendix A, a Motion to Withdraw Guilty Plea was filed , a hearing

held and an Order entered in 1984.

of 1994 and denied.

As indicated

The Motion was renewed in April

To quote from the Ninth Circuit Court of

Appeals decision which rejected the argument that Creech should be

allowed to withdraw his guilty plea:

After conducting our own review of the record in this

case , we find it "inconceivable.

. , and not merely

improbable.

that [Creech) would have gone to trial

on a defense [of imperfect self-defense], o r that if he

done so he either would have been acquitted or, if

convicted, would nevertheless have been given a shorter

sentence than he actually received . ''

The Idaho Supreme Court decision addressing the withdrawal of

Creech's guilty plea had many of the same reasons which the defense

raised when the Motion to Withdraw Guilty Plea was refiled on April

21, 1994 .

~his district court has not changed.its mind.

The second issue raised in the first petition·, that Creech was

denied right to confront witnesses through hearsay material has been

MEMORANDUM DECISION AND ORDER - 15

00205

Resp's App. 022

ruled on by the Idaho Supreme Court.

As previously indicated,

issues which have been decided on direct appeal cannot be raised in

these proceedings.

having a jury as a fact finder in the sentencing phase of a trial.

The very first Idaho appeal laid these issues to rest.

The same reasoning applies with the issue of

The May 9th petition raises the issue of not being given

adequate notice of aggravating factors which the state would rely

upon.

As early as December of 1993, the defense requested this

information.

With the response given by the state in late February

of 1994 and later state documents, it was clear to the defense the

state was relying upon what the trial court had foun_"d earlier .

There was no surprise to the defendant.

The final issue raised in the first document apparently argues

t hat the trial court cannot or should not distinguish between

earlier convictions for murder and homicides which have been

attributed to Creech, but which for he has not been tried.

presentence investigat ion report may clearly contain items which may

be considered hearsay, so long as the investigator believes the

information to be rel iable.

This court did make such a distinction within its Findings of

Fact.

The court limited itself to only cases where Creech had been

convicted of the murder or that the evidence surrounding the

MEMORANDUM DECISION AND ORDER - 16

discovery of the body gave raise to the reasonable belief that

Creech had either taken part in or was a witness to the homicide.

The May 9, 1995 Petition sets forth no issue which requires

this court to reverse its decision.

CONCLUSIONS OF LAW ON ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL

The May 10, 1996 Petition incorporates the earlier issues

contained within the May 1995 Petition.

These have already been

addressed within this decision.

The balance of the petition raises

the issue of ineffective assistance of counsel,

The standard for a determination that counsel was ineffective

is two-pronged.

An applicant must show his attorney 1 s conduct fell

below an objective standard of reasonableness and that the deficient

conduct prejudiced the applicant.

A reasonable probability must be

shown that but for the attorney ' s deficient performance, the outcome

of defendant's trial would have been different.

Aragon v. State,

114 Id. 758, 760 P.2d 1174 (1988).

proving ineffective assistance of counsel by a preponderance of

evidence.

The applicant has the burden of

There is a strong presumption that the trial counsel's

performance falls within the wide range of

professional

assistance 11 •

Furthermore, the Idaho Supreme Court has determined

that tactical or strategic decisions of counsel will not be second24

guessed unless the decisions involve inadequate preparation,

MEMORANDUM DECISION Al'iJD ORDER - 17

ignorance of relevant law or other shortcomings capable of objective

evaluation .

. see Howard v State, 126 Id. 231, 880 P.2d 261 (1994)

and Davis v. State, 116 Id. 401, 775 P.2d 1243 (Ct. App. , 1989)

A portion of the allegations raised against Kehne was his

failure to raise various

penalty procedure.

constitutional attacks on the Idaho death

It has been established that it is not

ineffective assistance for trial counsel not to argue against law

which has been well settled.

The second general issue raised in the second document is that

Kehne was ineffective by not silencing Creech when he was making

statements against his interests.

higher court in this case, if a client doesn't want to take his

As mentioned by at least one

attorney's advice, it is the client's right so long as he is found

to be competent.

The issue of mental health examinations is a two-edged sword

for Creech.

explain Creech's violent history as mental aberrations over which he

had no control, but on the other hand the risk being ran was that

On one hand it is clear the defense had to try to

the defense of mental aberration would not be reached by the mental

health officials who examined him.

the court will not second guess .

MEMORANDUM DECISION AND ORDER - 18

This was trial strategy which

_,,......_ _

The .Additional Clarification document argues that Kehne should

have withdrawn from representing Creech when he entered his guilty

plea.

to do that very thing on the day of the plea.

assistance for an attorney who has been denied his motion to

The current counsel overlooks the fact that Kehne attempted

It is not ineffective

withdraw to do the very best job for the defendant he can

thereafter.

The issue of whether larger counties seek the death penalty

more often that smaller counties would not have been persuasive

There is merely anecdotal evidence

argument to this court.

supporting this proposition.

Accepting for purposes of this decision the testimony elicited

at the post conviction relief hearing as to what evidence Kehne

could have or should have secured to give as many mitigating factors

as possible, this court 1 s firm belief is that the outcome of the

This court 1 s interest was

sentencing would not have been changed.

(1) whether Creech had killed Jensen;

take human life and (3) was he incapable of comprehending the

outcome of his actions.

(2) was Creech predisposed to

The childhood history of Creech was

incidental to this court; the possibility of a biological

predisposition was listed as a mitigating factor by this court; and

the suggestion that the victim was a punk was also listed.

MEMORANDUM DECISION AND ORDER - 19

However,

Q020!)

Resp sA'.pp. 0'26

when it is all said and done this court determined that Thomas

Eugene Creech was an adult male of at least normal intelligence who

was able to c omprehend the results of his actions and did with

specific intent kill another inmate while imprisoned as a result of

an earlier conviction.

The second prong of the ineffective

assistance test has not been met.

CONCLUSION

This trial court has presided over this case since 1981 .

has watched and considered the representation of Creech by Rolf

Kehne and finds that Mr. Kehne has performed with outstanding

competence in a case where the chance for success was extremely

remote.

This court determines the documents which make up the Post

Conviction Relief Proceeding do not state a cause of action for

whi c h th is court will grant r e lie f.

IT IS SO ORDERED.

Dated this

i " J -litd ay

of December:,

996

,/4/ ,

~/-Jr./4.

Robert G. Newhou se

DISTRICT JUDGE

MEMORANDUM DECIS I ON AND ORDER - 20

00210

Resp's App. 027

No, Your Honor.

MR. KEHNE:

THE

MR . HARRIS :

You may proceed, Mr . Harris .

COURT:

My first witness will be

Dr . LaMarr Heyrend .

FLOYD LaMARR HEYREND,

produced as a witnes s a t

being firs t

as foliows:

the i nstanc e of the S t ate ,

duly sworn , was e x amined and testified

DI RECT EXAMINATION

1'i

BY MR. HARRIS :

Docto r , would you state your full name,

Yes .

H-e- y -r- e -n- d .

You r e s ide he r e in Boise , Idaho, sir?

Yes , I do.

How are y o u e mp lo y e d ?

I am li c ensed to practice medicine and

please ?

It's Floyd LaMarr Heyrend,

s u r g ery in t he St at e o f I daho .

psychiatry .

I s pec i alize i n

can y o u briefly give me a back g round

s k etch of y ou r e d ucational back g round?

Yes , I can .

I r eceived a Ba chelo r's

119

Heyrend - P lt- Di

Resp's App. 028

degree from the University of Utah in 1949.

After an additional year working in

field ecology and in going through the University

of Utah Medical School, I received a doctorate of

medicine in 1954 .

Follow in g tha t , I went through a period

- of internship at several hospitals in the Salt Lake

area and then entered a period of residency t r aining

in pediatrics, pediat r i c neurology and child

psychiatry.

And in 1957 , completed that and pract ic ed ,

opened to pract i ce in the Idaho Falls area for a

period of four yea r s .

While there, I was in cha r ge of clinics

fo r crippled childre n and mostly disturbed children

i n a seven - coun t y ar ea .

At t h at po i n t, r ec e ive d an a ppoin t me n t

as a fello w at the University of Utah s p onsored by

t h e Nat i on al I n stitu t e s o f .Heal t h .

An d f o r t h e State o f I dah o f o r a no t h er

period of two an d a half years o f trainin g in a dul t

psychiatry and neurolo g y, spent the ti me there and

.23

at t h at po int ret u rne d to the S tate o f I dah o to

b e c o me t h e clinical d irect o r o f t h e Ad a Cou nty

Mental Health, the posit i on which I held for a pe r iod

120

He y re nd - Plt - Di

Resp's App. 029

of three years.

And following that, went into

private practice and have been in private practice

for 16 years.

Have you had some practical experience

then in the practice of the science of psychiatry?

Q. . •· · Have you had the opportunity,

Yes.

I have had some experience.

Doctor,

to testify in the courts · of this state for purposes

of giving your opinion with regard to psychiatric

questions under both Title 66 and Title 18 of the

Idaho Code?

Yes, I have.

On how many occasions have you testified

in courts on quest i ons of psychiatric matters under

those statutory provisions?

'18

I cannot give you the numbers because it

would be several hundred times.

Doctor 1 are you familiar with an

individual by . the na me of Tom or Thomas Creech?

Yes, I am.

Is that same Tom Creech present in Court

here to day?

Yes, he is.

Could you point to him and say where he

is sitting in the courtroom?

1 21

Heyrend - Plt - Di

Resp's App. 030

Yes.

He is sitting at the defendant's

table with his attorney Mr. Kehne and has a purp~e

shirt on.

MR. HARRIS:

Unless there is an objection, I

would like the record to reflect that he has identifie~

the defendant.

MR. KEHNE:

No, Your Honor .

THE COURT:

No objection?

MR. KERNE~

No objection.

THE COURT:

Vety well, so ordered.

BY MR. HARRIS:

Doctor, when did you

first meet this individual, Mr . Creech?

1974.

What occasion would that be?

He had been arrested at that time and

was residing in the Ada County Jail, and I was asked

to see him by the Prosecutor and by Sheriff Palmer.

Do you know what he was in jail for or

why he was incarcerated?

He was incarcerated for t he killing of

two individuals out near Cascade , Idaho.

Did you in fact examine Mr. Creech at

that time?

24 .

Yes, I did.

What kind of an examination did you

122

Heyrend - Plt - Di

Resp's App. 031

engage in?

Well, at that particular time, it was

a rather ·comprehensive examination, :and I spent a

minimum of 40 hours with him in a variety of

situations

those were situations in which he was under Amytal

for iriterviews and not under Amytal for psychiatric

interviews.

in my office did psychological testing for me.

it was a rather very comprehensive evaluation~

I think it was considerably more.

But

And also at the time the psychologist

I see. Did you subsequently testify in

a murder trial involving Mr . Creech?

Yes, I did.

Where was that trial held?

That trial was held in Kellogg, and at

t hat time I testified for the defense.

Could that have been Wallace?

Wallace 9 yes.

19 •

Okay.

Doc torv did you formulate an

opinion at that ti me with regard to Mr. Creech's

mental status?

2.2

Yes, I did.

Wha t

Well, my conclusion at t ha t ti me was

was that conclusion?

that he fell within a diagnosti~ category which we

123

Heyrend-Plt - Di

Resp's App. 032

call sociopathic personality type, antisocial.

In addition to that, he showed some

predisposition towards the development of

depression, specifically neurotic type depression;

and that within his personality structure, there was

a good deal of instability of mood, marked

impulsivity of behavior, specifically that he often

acted without adequate forethought, and that often

he operated without sufficient consideration of the

feelings and the rights of other people.

Could you define medically what your

definition of psychopathic is in layman terms?

Well, I did not use the term

psychopathic, but I should probably clarify .

over the years changed the diagnostic categories

which are real l y kind of labels trying to make them

more specific .

We have

The or igi na l c a t eg ory wh ich h e wo u l d

have fallen in was psychopa t h ic , a nd we had a

ca t ego r y t he r e ca l led c o ns tit u ti onal p s ychop at h ic

which we later felt was not the best classification .

S o we devel oped t h e s oc i opa t h ic

p ers onali t y d i so r de rs a nd t h e antis oci al t ype .

24.

t h e s am e t ime 0 many o f t h e p s ycholog i s ts us ed t h e

term "character disorder" or "character neurosis."

12 4

Heyrend - Plt - Di

Resp's App. 033

Are those the same things?

And what we end up with is that we must

not become confused because it's all· the same thing.

You can sometimes get lost in all these labels.

But we characterize these as personali ty

disorders.

indicates that although the person is dysfunctional

or may have a great deal of self-defeating behavior

in terms of how he conducts his day to day life, that

he still does . not depa rt from . reality, and that in

terms of his orientation and judgment , that i t remains

intact.

A disorder of personality simply

Doctor, at the time of your examination,

your original examination and testimony, did you

form a conclusion with regard to Mr. Creech's

ability to appreciate the wrongfulness of his conduct

and his ability to conform his conduct to the

requirements of law?

did.

Yes i

What was that conclusion?

Tha t

he indeed appreciated the

wrongfulness of his acts and could conform his

2.3

behavior to the requirements of the law.

Have you had an opportunity to examine

Mr. Creech in the med ical context since your testimon

125

Hey re nd-Pl t- Di

Resp's App. 034

in Kellogg or Wallace pursuant to your original

examination?

Yes, I have.

On how many occasions?

Well, again, I am unable to tell you

specifically how many.

I did see him on several

occasions, at least two at the Idaho State

Penitentiary.

I did in addition to that see him at the

Ada County Jail during those occasions when he has

been incarcerated there.

he is kept in an area where I often do see people

since at least every other week and often -- much

more often than that I do go over to the jail.

What happens is generally

So I have seen him and spoken to him

mayb e for a moment on many occasions .

him at least on three occasions during his present

sta y t h ere.

Ok a y ~

I have visited

Spe a k i ng of h is p r e se n t

st ay,

I ass ume y ou are s p eak ing of his stay in the Ad a

2.1

County Jail subsequen t

to the 13th day of May, 1981 ?

Yes.

At wh ose re quest d i d you v isit wi th

2.4

Mr. Cre e c h mo st re cen tl y ?

At your r equest .

126

Heyrend-Plt - Di

Resp's App. 035

And on how many occasions over the past

couple of months since Mr. Creech's most recent

incarceration have you visited with him?

I have had three sessions which had some

length, and several others under which I

just spoke

to him when he was watching TV.

Have you engaged in any particular form

. of

Mr. Creech during his most recent stay in the Ada

County Jail?

psychiatric or medical testing with regard to

Only on my visits of Friday evening and

this last Saturday.

What tests were those?

I went through some of the elements of

the mental status examination in terms of proverbs,

si milarities and differences, and also gave him a

Bender-Gestalt.

I assume then that you r testing mo st

recently was not as in depth as the testing you

engaged in back in 1974 and 1975; is that correct?

That i s correct.

Did you think that it was necessary to

engage in any furt h e r testing with regard to the

24 .

most recent diagn o sis?

No.

127

Heyrend - Plt - Di

Resp's App. 036

Did you also have an opportunity to run

any medical examinations or study any medical tests

given to Mr. Creech?

Yes, I did.

What was that?

I had an electroencephlograrn run this

past week at St . Alphonsus Hospital.

Based upon your review of those tests

that you just mentioned, have you been able to

formulate an opinion as to whether or not Mr . Creech

suffers from any organic b rain syndrome or other

organic brain disease?

Yes, I have .

What is that opinion?

Well, my opinion is that he suffers from

no organic brain syn d romes.

What does that mean in laymen's terms?

'JI

That means that he does not have b r ain

damage and t h at he is intact.

Do you have an opinion at this ti me with

re gard t o Mr. Creech' s current condition and his

ability to appreciate the wrongfulness of his

conduct and to conform his conduct to the

re qu ire ments of the law?

Yes, I do.

128

Heyrend - Plt - Di

Resp's App. 037

What is that opinion?

My opinion is that I can see absolutely

no difference between his condition . in 1974 and his

present condition, and feel that the findings at that

time are still consistent in terms of him being able

to recognize the wrongfulness of his behavior.

Have .you seen re cent reports from the

secured medical facility at the Idaho State

Penitentiary with regard t o Mr. Creech?

Yes .

Are they consistent with that conclusion

you have just reache d?

Yes , they are.

In you r opinio n, does Mr . Creech have the

capacity to understand the proceedings against him

and assist in his own defense if necessary?

Yes, he does.

MR.

HARRIS :

THE

CO UR T:

•

Cross examine

MR.

KEHNE:

Your Honor, we would like a break

That's all I have , Judge .

I talked to Dr. Heyrend last week,

before that.

and my understanding is he has seen Torn and some

reports since I talked to him last ti me.

like a chance to confer with him before cross

examination.

I would

129

Hey ren d -Plt- Di

Resp's App. 038

THE COURT :

Very well.

We will take a break,

and please advise the Bailiff when you are ready.

(Recess . )

THE COURT:

Thank you.

I will again take up

would advise

Case No. 10252 on the court docket .

you, Dr. Heyrend , you are still under oath , sir.

You may proceed with your cross

examination, Mr . Kehne .

CROSS EXAMINATION

BY MR.

KEHNE:

Dr. Hey r end, in the course of your

interviews with the defendant, Tom Creech, you put

him under what's called Amytal therapy or Amy ta l

interviewing.

Can you describe that for the Court?

Yes, I can.

Simply what t hat a moun te d t o

was using sodium Amytal which was easier to handle

than sodium Pentothal.

We placed him in a state which we would

call a hypnotic~like since those drugs are classified

as hypnotic s for the purpose of enhancing his memory

and for the purpose of assisting in the finding of

the validity of his story.

It was a very compl icated procedure,

involved a tremendous amount of mate rial cove rin g

130

Hey r end - Pl t-X

Resp's App. 039

many things which probably appropriately should not

be brought up in this trial .

··

Did you tape record some of these

sessions?

Yes, I did .

About how many sessions were there?

At least 16. hours worth.

In the .course of these sessions, did

Mr. Creech report to you the experience of being

taken over by other means?

Yes.

About on how many occasions can you

estimate for us?

at, was that a consistent report of his?

In other words, what I am getting

No.

That was not a consistent report of

Did he at times report being taken over

his.

by the evil one or something that he exp r essed in

terms such as that?

2.2

Yes.

We talked about that on several

occasions.

Did you gather from his explanation

that he was re p orting to you being taken over by a

2.4

being outside of himself, other than himself?

No.

131

Hey re nd - Pl t-X

Resp's App. 040

Can you describe for the Court what you

understood that report to be?

Well, this material as we discussed it,

evolved around his association with some people whom

he expressed were involved in a satanic movement,

religious movement , and that being possessed was

rnore · of a ·spiritual or reli gious -li ke phenomenon in

the context that I discussed it with him.

Have you discussed this with him in your

recent visits with Mr. Creech?

No , I have not.

You mentioned in your classification of

Mr. Creech several disorders .

form disorder in your words?

What is schizophrenia

In terms of trying to bridge between the

normil pe rsonality and sc hizophreni a, which is a

form of psycho sis which has a medic al basis, we have

added the schizophrenia form diagnos is and the

schizo atypical and d rop p ed schizoid personali~y so

that you can see that in an attempt to standardize

and d efine t hese t hings and bridge t he gap, we have

tried to add so me different definitions, some of

which we have accepted for a period of time and then

dropped and others we haven't.

Basically , what it amounts to is that at

132

Hey ren d - Plt -X

Resp's App. 041

times we have an individual who suffers frequently

from what appears to be bizarre thoughts, ideas

which seem to be somewhat unusual, and we will

classify these as schizophrenia form, schizo atypical,

or we say they had a schizoid personality.

These individuals also show signs of

impaired relationships with people, relational

deficits and intangible deficits but also have some

rather bizarre meditation.

Would you say that Mr. Creech shows

signs of being a schizo atypical personality or

having schizophrenic, one personality disorder,

whatever term you want to use?

I would not argue strenuously if someone

wanted to apply those diagnoses to him.

did not find it necessary to do so.

of my clinical evaluation .

. 18

I myself

That was because

In your re v iew of all t h e material

involving Mr. Cre ech, including your review of

Mr. Mi ller 1 s wo rk with Mr. Creech out at the

secured medical facility , did you see some support

for such a diagnosis?

Yes.

Would you a g ree with this, that

Mr. Creech under periods of stress would be likely

133

Heyrend - Plt-X

Resp's App. 042

to degenerate into florrid psychosis?

Well, here again, I find myself in the

position where I

can understand why people were concerned about this.

can · see this is a possibility.

Before you go on, Docto r, what other

people were concerned about it?

Like at the penitentiary.

Again, I did

not feel concerned about this myself.

Do you find in the official records of

the penitentiary some concern shown by some staff

membe rs that he may degenerate into florrid psychosis

under periods of stress?

Yes.

Can you describe a little mo re fully in

laymen's terms what it would be like to degenerate

into florri d psychosis?

What does that mean?

Well, I think what i t means is that you

would become very agitated, very much out of control,

expressing bizarre feelings; inappropriate reactions

to situations and become very much out of control.

Would it reflect any difficulty

correctly perceiving reality?

It would indicate that as a possibility .

Do these penitentiary records show any

concern for degeneration into florrid psychosis

134

Heyrend-Plt-X

Resp's App. 043

occurring in time -- well, what year?

Was it before

the penitentiary chose to make Mr. Creech a trustee

on this tier or about when was it?

I can't remember specifically~

Okay.

I think it was in the middle .

Based on what you know .from Mr. Creech,

Can you app roxi mate it?

would you recommend him as a good person to make a

trustee?

No.

Did you mak e any recommendations public

concerning whether he ought to ever be a trustee or

what kind of security classification he should be

kept under at any time before?

Yes, I did.

When was that, Doc tor?

In looking back in terms of my

conversations with the Sheriff and my conversations

with the Prosecutor at the time . at Wallace and at

the Wallace trial, I felt that he was an individual

who nee ded a very secure ty pe of environment, very

secure, and did not feel tha t

·mixed with the general population.

he should ever be

Do you know if that concern has ever

been passed on to the peni tentiary officials?

135

Heyrend - Plt -X

Resp's App. 044

Really don't know.

Did you make it public in the course of

your testimony at the trial?

sure that I

Yes.

I think that I certainly -- I am

didw

transcript, but I

and I

people.

kn ow that I

expressed that feeling

specifically expressed that feeling to other

do not have a copy of the

You have seen the evaluations of 6ther

mental health professionals made of Mr. Creech; right?

Yes, I have.

12.

We have mentioned Georg e Miller and

Any others that you can • think of right

Dr.

Stoner.

offhand?

Dr . Sanford , Dr. Estess.

Have you found any mental health

professional that would disagree, including

George Miller at the penitentiary, would disagree

with your thought~ that Mr. Creech should be kept out

of the general population?

2.1

Well, I do not feel that this iss ue was

addressed, you know, in the records at the

penitentiary.

is that at the ti me of the original Wallace trial,

that Dr. Estess and I both had similar feelings ., . we

I know all that I know s p ecifically

136

Hey r end - Plt -X

Resp's App. 045

I really can't speak for the

were very concerned .

people at the penitentiary.

· Wereyou ··surprised

to learn that he had

been made a trustee and had access to other inmates?

Yes.

Are you aware that Mr . Creech has given

seve r al d i ffe r ent ve r sions concerning th e incident

involving Mr . Jensen?

Yes.

Is that consistent with what you know

about h i m?

That has been consistent over a long

period of time.

Do you see t his as 100 per cent con ; i n

other words, he is trying to intentionally tell a

'iEi

f alsehood a nd g et o t he r peopl e t o be lie ve i t ?

would you say this is something different in

Mr. Creec h 0 s case?

Wh at I . a m g etting at is q d o you believe

that Mr. Cr eech hi mself really knows what versions

h e is te lling ?

Wellq first of all , I can say that, yes,

that I think with sufficient effort t h at Mr . Creech

knows whic h versi o n is true.,

a ll of my d e a lin g s wi th hi m , t h is p attern of

How everu t h ro ugh o u t

1 37

He yr e. nd - Pl t-X

Resp's App. 046

inconsistency, changing, has occurred.

The point has

been raised that after he tells so many stories, he

himself cannot separate fact from fiction.

Would you agree with that?

I suspect . that could well occur.

Would you re.commend to the court systems

that they take Mr. Creech's word for what happened to

Mr. Jensen, make important decisions based on his

word?

His word alone?

Yes.

No.

How about regarding Mr. Creech's intents

at the time i t happened?

court system that they rely on Mr. Creech's word?

W9uld you recommend to the

I don' t

think so.

Do you believe Mr. Creech should be

making his own decisions regarding his legal ri gh ts

and the procedures he follows in standing against the

legal system?

Could you cl~rify that just a little?

Compared to mo st people or confronting

t h e le gal system, would you say i t is likely that

Mr. Creech can give p ro pe r

long-term consequences of his actions in deciding

forethought about

138

Heyrend - Plt -X

Resp's App. 047

whet h er or n o t

procedures he wants to foll ow?

to waive certain rights or what

Well, I feel that a wise pers o n should

f o llow the judgment of their attorney, and that

Mr . Creech could do so.

That would be in his best

interests ; it's what

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