Petition for Writ of Certiorari — Thomas Eugene Creech, Petitioner v. Idaho

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

THOMAS E. CREECH,

Petitioner,

v.

STATE OF IDAHO,

Respondent.

On Petition for Writ of Certiorari to the Supreme Court of Idaho

PETITION FOR WRIT OF CERTIORARI

Jonah J. Horwitz

Counsel of Record

Nicole R. Gabriel

FEDERAL DEFENDER SERVICES OF IDAHO, INC.

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Jonah_Horwitz@fd.org

Nicole_Gabriel@fd.org

208-331-5530

Counsel for Petitioner

CAPITAL CASE

QUESTION PRESENTED

Idaho is currently the only state in the country seeking to execute prisoners

who were sentenced to death by judges alone, without the assistance of juries. Based

on that fact, Thomas Creech filed a post-conviction petition in state court challenging

the practice of judge-sentenced executions under the Eighth Amendment as barred

by the evolving standards of decency. The Idaho Supreme Court dismissed the claim

as untimely on the ground that “nothing unusual occurred” recently to trigger the

claim, without recognizing that this Court’s evolving-standards cases center on the

absence of executions and death sentences. The question presented is:

Whether it comports with due process for a state court to reject as untimely an

evolving-standards claim on a theory that would never allow for such a claim to be

reviewed in a successive posture.

PETITION FOR WRIT OF CERTIORARI – Page i

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings below are all listed in the caption.

RELATED PROCEEDINGS

Ada County District Court

Case No. 10252

State v. Creech

Findings imposing death penalty, Jan. 25, 1982

Judgment of conviction, Mar. 17, 1983

Order denying motion to withdraw guilty plea, June 24, 1983

Idaho Supreme Court

Case Nos. 14480/15000

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

Opinion issued denying relief, May 23, 1983

Petition for rehearing denied, Sept. 21, 1983

Idaho Supreme Court

Case No. 15114

State v. Creech

Order dismissing appeal, Jan. 24, 1984

United States Supreme Court

Case No. 83-5818

Creech v. State, 465 U.S. 1051 (1984)

Petition for certiorari denied, Feb. 27, 1984

Idaho Supreme Court

Case No. 15475

State v. Creech

Denial of motion to withdraw guilty plea affirmed, June 20, 1985

Petition for rehearing denied, Dec. 31, 1985

United States District Court, District of Idaho

Case No. 86-1042

Creech v. State

Habeas petition denied, June 18, 1986

United States Court of Appeals, Ninth Circuit

Case No. 86-3983

Creech v. State, 947 F.2d 873 (9th Cir. 1991) (en banc)

Affirmed in part, reversed in part, remanded, Oct. 16, 1991

PETITION FOR WRIT OF CERTIORARI – Page ii

United States Supreme Court

Case No. 91-1160

State v. Creech, 507 U.S. 463 (1993)

Reversed and remanded, March 30, 1993

Ada County District Court

Case No. 10252

State v. Creech

Judgment of Conviction, Apr. 17, 1995

Ada County District Court

Case No. SPOT-95-00154-D

Creech v. State

Post-conviction petition denied, Dec. 12, 1996

Idaho Supreme Court

Case Nos. 22006/23482

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

Opinion issued denying relief, Aug. 19, 1998

Petition for rehearing denied, Oct. 23, 1998

United States Supreme Court

Case No. 98-8278

Creech v. State

Petition for certiorari denied, June 4, 1999

Ada County District Court

Case No. SPOT0000403D

Creech v. State

Post-conviction petition denied, Jan. 25, 2001

Idaho Supreme Court

Case No. 27309

Creech v. State, 51 P.3d 387 (Idaho 2002)

Opinion issued dismissing appeal, June 6, 2002

Petition for rehearing denied, Aug. 1, 2002

Ada County District Court

Creech v. State

Case No. SPOT0200712D

Post-conviction petition denied, Apr. 25, 2003

PETITION FOR WRIT OF CERTIORARI – Page iii

Idaho Supreme Court

Case Nos. 29681/29682

State v. Creech

Appeal dismissed, Dec. 23, 2005

United States District Court, District of Idaho

Case No. CV 99-0224-S-BLW

Creech v. Hardison

Judgment of dismissal, March 31, 2010

Order denying relief on remand, Jan. 29, 2016

Ada County District Court

Case No. CV PC 2008-6064

Creech v. State

Order dismissing petition for post-conviction relief, Mar. 30, 2011

United States Court of Appeals, Ninth Circuit

Case No. 10-99015

Creech v. State

Order vacating and remanding, June 20, 2012

Opinion denying relief July 20, 2022

Order denying petition for rehearing and amending opinion, Feb. 6, 2023

United States Supreme Court

Case No. 23-5039

Creech v. Richardson, 144 S. Ct. 291 (2023)

Petition for certiorari denied, Oct. 10, 2023

Ada County District Court

Case No. CV01-22-9424

Creech v. State

Judgment dismissing petition for post-conviction relief, Dec. 1. 2022

United States District Court, District of Idaho

Case No. 1:23-cv-463

Creech v. Richardson

Petition dismissed, Jan. 12, 2024

Idaho Supreme Court

Case No. 50336

Creech v. State

Opinion issued denying relief issued, Feb. 9, 2024

PETITION FOR WRIT OF CERTIORARI – Page iv

United States Court of Appeals, Ninth Circuit

Case No. 24-275

Creech v. Richardson

Appeal pending

United States District Court, District of Idaho

Case No. 1:24-cv-066

Creech v. Idaho Commission of Pardons & Parole

Case pending

United States District Court, District of Idaho

Case No. 1:20-cv-114

Creech v. Tewalt

Case pending

PETITION FOR WRIT OF CERTIORARI – Page v

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... vi

APPENDICES.............................................................................................................. vii

TABLE OF AUTHORITIES ....................................................................................... viii

INTRODUCTION .......................................................................................................... 1

OPINION BELOW......................................................................................................... 1

JURISIDICTIONAL STATEMENT .............................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

STATE STATUTE INVOLVED .................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 5

I.

Due process scrutiny of state post-conviction schemes is needed. ......... 7

II.

This case presents the perfect facts to consider. ................................... 10

III.

Idaho is the perfect state to consider. .................................................... 15

CONCLUSION............................................................................................................. 20

PETITION FOR WRIT OF CERTIORARI – Page vi

APPENDICES

APPENDIX A:

Opinion

Idaho Supreme Court, No. 51229-2023

Feb. 9, 2024…………………………………………….. App. 001–009

APPENDIX B:

Petition for Post-Conviction Relief

Idaho State District Court, No. CV01-23-16641

Oct. 13, 2023………………………………………...…. App. 010–186

APPENDIX C:

Order Dismissing Post-Conviction Petition

Idaho State District Court, No. CV01-23-16641

Oct. 16, 2023…………………………………………….App. 187–192

PETITION FOR WRIT OF CERTIORARI – Page vii

TABLE OF AUTHORITIES

Federal Court Opinions

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................... 10, 13

Banks v. Dretke, 540 U.S. 668 (2004) ................................................................... 18

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................ 18

Brown v. Davenport, 596 U.S. 118 (2022) .............................................................. 6

Brown v. Sec’y for Dept. of Corrs., 200 F. App’x 885 (11th Cir. 2006) ................. 8

Case v. Nebraska, 381 U.S. 336 (1965).................................................................... 5

Coker v. Georgia, 433 U.S. 584 (1977) ............................................................ 10, 15

Cullen v. Pinholster, 563 U.S. 170 (2011) ............................................................... 6

Edwards v. Vannoy, 593 U.S. 255 (2021) ........................................................... 5, 6

Enmund v. Florida, 458 U.S. 782 (1982) .................................................. 10, 13, 14

Evitts v. Lucey, 469 U.S. 387 (1985) ....................................................................... 9

Ford v. Wainwright, 477 U.S. 399 (1986) ............................................................... 9

Godfrey v. Mahoney, 2009 WL 5371196 (D. Mont. Nov. 24, 2009) ...................... 8

Graham v. Florida, 560 U.S. 48 (2010) .................................................... 10, 14, 15

Hairston v. Packett, 2008 WL 3874614 (D. Idaho Aug. 15, 2008) ...................... 16

Hall v. Florida, 572 U.S. 701 (2014) ....................................................................... 3

Harrington v. Richter, 562 U.S. 86 (2011) .............................................................. 6

Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001) ................................................... 15

Kennedy v. Louisiana, 554 U.S. 407 (2008) .................................................... 10, 13

Kyles v. Whitely, 498 U.S. 931 (1990) ..................................................................... 5

LaChance v. Erickson, 522 U.S. 262 (1998) ......................................................... 13

Miller v. Alabama, 567 U.S. 460 (2012) ............................................................... 10

Miller v. French, 530 U.S. 327 (2000) .................................................................. 13

Montgomery v. Louisiana, 577 U.S. 190 (2016) ................................................. 6, 7

Ring v. Arizona, 536 U.S. 584 (2002) ...................................................................... 3

Roper v. Simmons, 543 U.S. 551 (2005) .................................................... 10, 11, 12

Shinn v. Ramirez, 596 U.S. 366 (2022) ............................................................... 5, 6

Stanford v. Kentucky, 492 U.S. 361 (1989) ........................................................... 11

PETITION FOR WRIT OF CERTIORARI – Page viii

Strickler v. Greene, 527 U.S. 263 (1999) .............................................................. 18

Stuart v. State, 232 P.3d 813 (2010) ...................................................................... 15

Trop v. Dulles, 356 U.S. 86 (1958) ........................................................................ 10

White v. Woodall, 572 U.S. 415 (2014) ............................................................... 5, 6

Federal Statutes and Constitutional Provisions

28 U.S.C. § 1257 ...................................................................................................... 1

U.S. Const. amend. VIII ........................................................................................... 1

U.S. Const. amend. XIV .......................................................................................... 1

State Cases

Abdullah v. State, 539 P.3d 947 (Idaho 2023) ....................................................... 18

Creech v. State, 2024 WL 510142 (Idaho Feb. 9, 2024) ......................................... 1

Fields v. State, 298 P.3d 241 (Idaho 2013) ............................................................ 17

Fields v. State, 314 P.3d 587 (Idaho 2013) ........................................................... 17

Hairston v. State, 156 P.3d 552 (Idaho 2007) ....................................................... 17

Hooley v. State, 537 P.3d 1267 (Idaho 2023) ........................................................ 18

McKinney v. State, 992 P.2d 144 (Idaho 1999) ..................................................... 16

Paradis v. State, 912 P.2d 110 (Idaho 1996) ......................................................... 16

Paz v. State, 852 P.2d 1355 (Idaho 1993) .............................................................. 16

People v. Ambos, 51 P.3d 1070 (Colo. Ct. App. 2002) ........................................... 9

Pizzuto v. State, 202 P.3d 642 (Idaho 2008) .......................................................... 17

Pizzuto v. State, 233 P.3d 86 (Idaho 2010) ............................................................ 19

Porter v. State, 32 P.3d 151 (Idaho 2001) ............................................................. 17

Rhoades v. State, 17 P.3d 243 (Idaho 2000) .......................................................... 16

State v. Mixon, 983 S.W.2d 661 (Tenn. 1999) ......................................................... 9

State v. Simmons, 944 S.W.2d 165 (Missouri 1997) ....................................... 11, 12

Woods v. State, 221 So.3d 1125 (Ala. Crim. App. 2016) .................................... 8, 9

PETITION FOR WRIT OF CERTIORARI – Page ix

State Statutes and Rules

Alabama Criminal Rule 32.7 ................................................................................... 9

Idaho Code § 19-2719 .............................................................................. 2, 4, 12, 15

Other

Eve Brensike Primus, Federal Review of State Criminal Convictions: A Structural

Approach to Adequacy Doctrine, 116 Mich. L. Rev. 75 (2017) ........................ 8

Ira P. Robbins, Toward A More Just and Effective System of Review in State Death

Penalty Cases, 40 Am. U. L. Rev. 1 (1990) ....................................................... 9

Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State

Prisoners, 76 Harv. L. Rev. 441 (1963) ............................................................. 7

PETITION FOR WRIT OF CERTIORARI – Page x

INTRODUCTION

Petitioner Thomas E. Creech respectfully petitions this Court for a writ of

certiorari to review the judgment of the Supreme Court for the State of Idaho.

OPINION BELOW

A copy of the opinion below is attached as Appendix A, App. 1–9, and is

available at Creech v. State, No. 51229, 2024 WL 510142 (Idaho Feb. 9, 2024). 1

JURISIDICTIONAL STATEMENT

On February 9, 2024, the Idaho Supreme Court denied Mr. Creech relief and

issued an opinion disposing of the appeal. See id. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257(a). The petition is timely filed.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eighth Amendment to the United States Constitution,

which states that “[e]xcessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII.

This case also involves the Due Process Clause of the Fourteenth Amendment

to the United States Constitution, which provides that “[n]o State shall . . . deprive

any person of life, liberty, or property, without due process of law[.]” U.S. CONST.

amend. XIV, § 1.

1 In this petition, unless otherwise noted, all internal quotation marks and citations

are omitted, and all emphasis is added.

PETITION FOR WRIT OF CERTIORARI – Page 1

STATE STATUTE INVOLVED

This case involves the Idaho Code § 19-2719, which provides in pertinent

part:

Within forty-two (42) days of the filing of the judgment imposing the

punishment of death . . . the defendant must file any legal or factual

challenge to the sentence or conviction that is known or reasonably

should be known.

...

If the defendant fails to apply for relief as provided in this section and

within the time limits specified, he shall be deemed to have waived

such claims for relief as were known, or reasonably should have been

known. The courts of Idaho shall have no power to consider any such

claims for relief as have been so waived or grant any such relief.

I.C. §§ 19-2719(3), (5).

STATEMENT OF THE CASE

Mr. Creech has never been sentenced to death by a jury of his peers. He was

first sentenced to death for the killing of David Jensen on January 25, 1982. 2 App.

11. Due to issues with his first sentencing that are not relevant to the instant case,

he was resentenced, and a new death sentence was imposed on April 17, 1995. Id. at

11–12. Both death sentences were imposed solely by a judge, sitting alone. Id. In

fact, both sentences were imposed by the very same judge: the Honorable Robert

Newhouse. 3 Id.

2 Since his original death sentence was imposed in 1982, Mr. Creech has been engaged

in continual litigation, covering numerous proceedings and issues. Here, he will only

set forth the events relevant to the question presented.

3 Judge Newhouse has subsequently realized that no purpose would be served by an

execution and he supported Mr. Creech’s bid for clemency. See Ruth Brown,

Emotional commutation hearing held for Idaho’s longest-serving man on death row,

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During the decades since Mr. Creech was initially sentenced to death,

America’s willingness to put to death those sentenced by a single judge without any

involvement by a jury has slowly dwindled. When this Court deemed judgesentencing unconstitutional under the Sixth Amendment, there were five states

that allowed it: Arizona, Colorado, Idaho, Montana, and Nebraska. See Ring v.

Arizona, 536 U.S. 584, 608 n.6 (2002). Colorado has abolished the death penalty and

Arizona has imposed a moratorium on executions. See App. 19. Thus, these two

states are included on Mr. Creech’s side of the scale for evolving-standards

purposes. See Hall v. Florida, 572 U.S. 701, 716 (2014). Tallying up the three

remaining states, only 0.68% of inmates on death row in the United States were

sentenced to death by judges. 4 App. 22, 27–28. Those states have not carried out an

execution in more than five years, and only one in the last ten. Id. at 24. Mr.

Creech’s data is as strong as any of the statistics in the cases where this Court

Idaho Capital Sun, Jan. 21, 2024, available at

https://idahocapitalsun.com/2024/01/21/emotional-commutation-hearing-held-foridahos-longest-serving-man-on-death-row/. The clemency proceedings led to a

three-three tie, with one member of the Parole Commission recusing himself. See

Rebecca Boone, Idaho inmate nearing execution wants a new clemency hearing. The

last one was a tie., AP, Feb. 7, 2024, available at https://apnews.com/article/thomascreech-idaho-death-row-lethal-injection-appealdba9cd7ed5ea43b5b5278b1060859d88. The three Commissioners who voted in

favor of clemency relied in part on Judge Newhouse’s changed position and on the

fact that the original prosecutor who sought the death penalty likewise no longer

feels an execution is necessary. See https://parole.idaho.gov/wpcontent/uploads/2024/01/Creech-Decision-with-signatures_Redacted.pdf.

4 The numbers above were assembled in October 2023. None have changed in such a

way as to substantively affect the analysis, particularly since no judge-sentenced

inmates have been added to death rows or executed in the interim.

PETITION FOR WRIT OF CERTIORARI – Page 3

struck down sentencing practices as inconsistent with the evolving standards of

decency. See infra at Part II.

Because the execution of such individuals has only now become obsolete, Mr.

Creech filed a successive petition for post-conviction relief in Idaho district court on

October 13, 2023, arguing for the first time that—as a judge-sentenced man—the

Eighth Amendment bars his execution. See generally App. 10–186. The very next

business day, without a hearing or a response from the State, the Idaho district

court dismissed the petition as untimely under Idaho Code § 19-2719. App. 187–92.

Mr. Creech timely appealed to the Idaho Supreme Court, which affirmed the

state district court’s dismissal of Mr. Creech’s petition for post-conviction relief.

App. 1. The Idaho Supreme Court explained that, under Idaho Code § 19-2719(5),

capital petitioners must bring successive petitions for post-conviction relief within

forty-two days of when they know, or reasonably should have known, of the claim

they assert. Id. at 6–7. “For his petition to be timely when it was filed in October,”

the Idaho Supreme Court stated, “something giving rise to Creech’s claim must

have surfaced in the forty-two days before his filing on October 13. No such facts

exist.” Id. at 7. The Idaho Supreme Court also squarely rejected the proposition that

a dismissal on timeliness grounds was inconsistent with due process. It held that

Mr. Creech “could have satisfied” the limitations period “by bringing his claim

within forty-two days of when he knew or reasonably should have known of the

facts supporting his claim, even if the facts to sustain his claim developed” later. Id.

at 8.

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REASONS FOR GRANTING THE WRIT

Mr. Creech is asking the Court to provide clarity on the question of when a

state’s post-conviction regime affords so little meaningful review to legitimate

federal constitutional claims that it violates due process. That is a question the

Court first flagged as important enough to justify certiorari review in 1965. See

Case v. Nebraska, 381 U.S. 336, 337 (1965) (per curiam) (noting that certiorari had

been granted “to decide whether the Fourteenth Amendment requires that the

State afford state prisoners some adequate corrective process for the hearing and

determination of claims of violation of federal constitutional guarantees”). In Case,

however, the question was mooted after the granting of certiorari by Nebraska’s

passage of a post-conviction statute. See id. Nearly fifty-five years later, it has still

not been answered. See Kyles v. Whitely, 498 U.S. 931, 932 (1990) (Stevens, J.,

concurring) (remarking that the scope of state’s obligation to provide collateral

review of federal constitutional claims remained “shrouded in [] much uncertainty”).

The question is more urgent now than it has ever been. Over the last several

years, this Court has in several important ways narrowed the access state prisoners

have to federal habeas review over constitutional challenges to their convictions and

sentences. See, e.g., Shinn v. Ramirez, 596 U.S. 366, 382 (2022) (establishing

demanding restrictions on the development of the habeas record to support

ineffective-assistance claims where state post-conviction counsel failed to do so);

Edwards v. Vannoy, 593 U.S. 255, 272 (2021) (eliminating the watershed exception

to non-retroactivity rules); White v. Woodall, 572 U.S. 415, 420 (2014) (prohibiting

PETITION FOR WRIT OF CERTIORARI – Page 5

the granting of federal habeas relief unless the state court decision “was so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement”); Cullen v.

Pinholster, 563 U.S. 170, 181 (2011) (limiting federal review to the record compiled

in state court); Harrington v. Richter, 562 U.S. 86, 103 (2011) (applying extremely

deferential review even to unreasoned state-court decisions).

Through these various restrictions, the Court has consciously made it more

difficult for prisoners to obtain federal habeas relief on the premise that “[t]he

States possess primary authority . . . for adjudicating constitutional challenges to

state convictions.” Ramirez, 596 U.S. at 376; Harrington, 562 U.S. at 103

(reiterating that “state courts are the principal forum for asserting constitutional

challenges to state convictions”). When the Court constricts habeas review, the

federal judiciary naturally becomes less of a backstop to state post-conviction

schemes. It therefore becomes even more essential that state courts truly are

serving as a meaningful forum “for adjudicating constitutional challenges” to

convictions and sentences. Ramirez, 596 U.S. at 376.

One insightful observer who saw as much was Professor Paul M. Bator.

Several Justices on this Court have turned to Professor Bator to bolster the

limitations imposed on federal habeas review in recent decades. See, e.g., Brown v.

Davenport, 596 U.S. 118, 129 (2022) (citing Professor Bator in a discussion of how

confined federal habeas review should be); Edwards, 593 U.S. at 277 (Gorsuch, J.,

concurring) (same); Montgomery v. Louisiana, 577 U.S. 190, 232 (2016) (Thomas, J.,

PETITION FOR WRIT OF CERTIORARI – Page 6

dissenting) (same). But the article by Professor Bator upon which these writings

rely itself stressed how his conception of federal habeas review only worked if states

satisfied their own due process obligations to fully review constitutional claims. See

Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State

Prisoners, 76 Harv. L. Rev. 441, 456 (1963) (commenting that it is “the essence of

the responsibility of the states under the due process clause to furnish a criminal

defendant with a full and fair opportunity to make his defense and litigate his case”

and if a state “fails in fact to do so, the due process clause itself demands that its

conclusions of fact or law should not be respected” and “federal habeas is clearly an

appropriate remedy”).

Given the reenergized focus on state courts as the final arbiters of federal

constitutional claims, it is critical for the Court to take up the question left

unanswered after Case, genuinely bring Professor Bator’s framework to bear, and

determine how far states can go under the Due Process Clause in imposing limits on

the consideration of federal constitutional claims. The present case gives the Court

the perfect opportunity to draw the line.

I.

Due process scrutiny of state post-conviction schemes is needed.

There are numerous signs that state post-conviction regimes around the

country are not offering the kind of full and fair review that this Court’s federal

habeas cases presume, and that more guidance is therefore in order.

As one leading commentator has observed, “modern postconviction review

schemes are often so complicated and confusing that indigent criminal defendants

PETITION FOR WRIT OF CERTIORARI – Page 7

have no realistic prospect of complying with the procedural rules.” Eve Brensike

Primus, Federal Review of State Criminal Convictions: A Structural Approach to

Adequacy Doctrine, 116 Mich. L. Rev. 75, 77 (2017). A few examples suffice to

illustrate the general nature of the dysfunction, which range from systemic

underfunding to more procedural mechanisms that make it effectively impossible to

have certain types of claims considered in state court.

On the systemic side, in California, more than 300 death-row inmates are

waiting for the appointment of initial state post-conviction counsel, and more than

100 of them have been waiting for more than twenty years. See 2023 Annual

Report, Habeas Corpus Resource Center, available at

https://www.hcrc.ca.gov/documents/HCRC%20Annual%20Report%202023.pdf. As

for more claim-specific rules, a post-conviction petitioner in Montana might see his

claim rejected because he failed to provide an affidavit from his attorney, who could

well have refused to sign one. See Godfrey v. Mahoney, No. CV 09-35, 2009 WL

5371196, at *6 (D. Mont. Nov. 24, 2009). An inmate in Florida might have his claim

rejected in post-conviction on the ground that he should have raised it on direct

appeal when state precedent gave the exact opposite instruction. See Brown v. Sec’y

for Dept. of Corrs., 200 F. App’x 885, 886–88 (11th Cir. 2006). A petitioner in

Alabama could see his entire post-conviction petition dismissed for failing to

marshal every smidge of evidence into his initial petition—such as identifying not

only an expert, but the contents of that expert’s potential testimony—from the

confines of his death row prison cell without the assistance of an attorney. See

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Woods v. State, 221 So.3d 1125, 1136–37 (Ala. Crim. App. 2016); Ala. Crim. R.

32.7(c). Colorado and Tennessee refuse to extend their statutes of limitations for

newly discovered evidence, so such claims will never be heard. See People v. Ambos,

51 P.3d 1070, 1073 (Colo. Ct. App. 2002); State v. Mixon, 983 S.W.2d 661, 670

(Tenn. 1999). Three other states—Ohio, Mississippi, and Virginia—have been

“unwilling to look at the merits of unpreserved constitutional claims,” meaning that

ineffective trial counsel can doom a viable issue to limbo. See Ira P. Robbins,

Toward A More Just and Effective System of Review in State Death Penalty Cases,

40 Am. U. L. Rev. 1, 30 (1990).

The excessive restrictiveness in many state post-conviction systems is

constitutionally problematic under the Court’s existing precedent. When a state

provides a mechanism to collaterally attack a criminal sentence, that mechanism

must comport with constitutional due process. See, e.g., Evitts v. Lucey, 469 U.S.

387, 401 (1985) (“[W]hen a State opts to act in a field where its action has

significant discretionary elements, it must nonetheless act in accord with the

dictates of the Constitution—and, in particular, in accord with the Due Process

Clause.”). This includes, at an absolute minimum, the opportunity to be heard. See

Ford v. Wainwright, 477 U.S. 399, 413 (1986). In the states listed above, and a

number of others, cognizable constitutional claims are completely left in the cold

without that modest degree of process.

In sum, there are widespread deficiencies in the state post-conviction

ecosystem and there is already an established rule of law for addressing them: the

PETITION FOR WRIT OF CERTIORARI – Page 9

Due Process Clause. What is missing is a blueprint to the lower courts on what the

Clause demands in the state post-conviction context, and that is the gap the present

case can fill.

II.

This case presents the perfect facts to consider.

Mr. Creech’s certiorari petition provides the ideal chance for the Court to

drawing a due process line for state post-conviction schemes, as it falls on the far

side of the continuum. That is because Mr. Creech asserted a claim that has long

been recognized by the Court as valid: an appeal to the evolving standards of

decency. Yet the decision below adopted a rule that by definition bars every such

claim from review by insisting that it be brought when it was known, which will

always be years before it is viable. If the Due Process Clause imposes any kind of

limitation on successive post-conviction cases, it would do so here. Mr. Creech’s case

consequently gives the Court a clean, simple set of facts for it to set down a due

process boundary in the state post-conviction realm.

Time and time again, this Court has held that changing social mores and

values may render a punishment—even one once accepted—unconstitutional under

the Eighth Amendment. See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Graham

v. Florida, 560 U.S. 48 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); Roper v.

Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002); Enmund v.

Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977) (per curiam);

Trop v. Dulles, 356 U.S. 86 (1958). There is no question, then, that the evolving

standards of decency represent a valid constitutional theory under existing law.

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What these evolving-standards claims have in common is that the social

mores and values they relied upon have evolved over time. By their very nature,

these claims exist on a spectrum of viability from frivolous to meritorious,

depending on the time the claim is brought. Take the evolving-standards claim

regarding the execution of sixteen- to eighteen-year-olds. In 1989, this Court

declared that the Eighth Amendment did not outlaw such a practice because it

“discern[ed] neither a historical nor a modern societal consensus forbidding the

imposition of capital punishment on any person who murders at 16 or 17 years of

age.” Stanford v. Kentucky, 492 U.S. 361, 380 (1989). Four years after the decision

in Stanford, seventeen-year-old Christopher Simmons murdered a woman in

Missouri, for which he was sentenced to death. State v. Simmons, 944 S.W.2d 165,

169 (Missouri 1997) (en banc). A decade after Stanford, Mr. Simmons’s age-based

attack on his death sentence was rejected. See id. at 191. However, the viability of

the claim continued to change over time until it was meritorious. Mr. Simmons filed

a new petition for post-conviction relief in state court, arguing that the Eighth

Amendment barred his execution due to his age at the time of the crime based on

evolving standards of decency. Roper, 543 U.S. at 559–60. This time—twelve years

after the crime—this Court agreed: over the sixteen years since Stanford, the

standards of decency had evolved such that the execution of those under eighteen

years old at the time of their crimes offended the Eighth Amendment. Id. at 578.

Technically, the Roper claim existed in 1989—after all, this Court took up the

claim on certiorari, even though it ultimately denied relief. Stanford, 492 U.S. at

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364–65, 380. It also existed in 1993 when Mr. Simmons committed the murder, and

it existed in 1997 when the Missouri Supreme Court upheld Mr. Simmons’s

sentence. See Simmons, 944 S.W.2d at 191. But although the claim existed years

before this Court’s decision in Roper, the claim was not viable. Only in 2005 did this

Court proclaim that national standards of decency had evolved to the point where

the execution of juveniles was barred as a constitutional matter. Roper, 543 U.S. at

578.

It is Idaho’s fixation with when a claim theoretically exists, to the exclusion

of when a claim is viable, that implicates due process. Idaho has elected to create an

avenue for its inmates to bring collateral challenges in state court to their

convictions and sentences under the U.S. Constitution. See Idaho Code § 194901(a)(1). It has also elected to build into its system a path for such claims in

capital cases when they arise after the initial post-conviction petition has been

resolved. See Idaho Code § 19-2719(5). But when an inmate wishes to carry an

evolving-standards claim down that path, he is thrust in the middle of a Catch-22.

If a petitioner wishes to bring a “timely” evolving standards claim in a successive

petition in Idaho state court, he must do so within forty-two days of knowing the

claim exists. App. 8 (concluding that Mr. Creech “could have satisfied” the

limitations period “by bringing his claim within forty-two days of when he knew or

reasonably should have known of the facts supporting his claim, even if the facts to

sustain his claim developed” later). If, however, he wishes to succeed on that claim,

he must wait to bring it until it is viable—that is, when he has enough evidence to

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show the standards of decency have evolved such that his execution would offend

the Eighth Amendment. As illustrated by the sixteen-year saga between Stanford

and Roper, such evidence cannot possibly be marshaled within forty-two days of

when a claim becomes conceivable.

Due process requires a petitioner to be given not just an opportunity to be

heard, but a meaningful one: “The core of due process is the right to notice and a

meaningful opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266

(1998). The enormously accelerated timeline embraced by the Idaho Supreme Court

is at odds with due process because it deprives petitioners like Mr. Creech of their

right to a meaningful opportunity to be heard. See Miller v. French, 530 U.S. 327,

350 (2000) (explaining that “whether the time is so short that it deprives litigants of

a meaningful opportunity to be heard is a due process question”).

The Idaho Supreme Court likewise ran afoul of the Due Process Clause when

it faulted Mr. Creech for failing to identify an “unusual” event occurring during the

limitations period that was sufficient to give rise to his claim. App. 7. This Court’s

evolving-standards cases have never demanded any unusual event. To the contrary,

evolving-standards precedent is largely about absences—that is, the non-occurrence

of death sentences and executions. See, e.g., Kennedy, 554 U.S. at 433 (indicating

that “no individual ha[d] been executed for the” crime in question for many years);

Atkins, 536 U.S. at 316 (referring to how certain states “authorize[d] executions” of

the class of inmates at issue “but none have been carried out in decades”); Enmund,

458 U.S. at 794 (emphasizing how “juries have rejected the death penalty in cases

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such as this one”). Of all the successful evolving-standards petitioners in this

Court’s history, none of them would have been able to satisfy the Idaho Supreme

Court’s insistence upon an “unusual” triggering event.

The invisible window of opportunity to raise the claim under Idaho’s rule

speaks to the due process difficulty here. Consider the view expressed below by the

district court, which understood that Mr. Creech’s evolving-standards claim had

been “decades in the making by its very nature.” App. 190. Nevertheless, the

district court was untroubled by the time-bar: “[t]hat it is difficult to pinpoint the

. . . claim’s maturation date is no impediment to” a finding of untimeliness. Id. But

the impossibility of identifying a maturation date under Idaho law is precisely what

brings the Due Process Clause onto the table. Under the district judge’s approach

(which the Idaho Supreme Court “agree[d] with,” App. 8), there is a period of

“decades” in which the claim is supposedly available and yet it is impossible to say

when during that time the forty-two-day window is open—even for the judge

declaring the petition untimely. That is just another way of saying the claim can

never be brought.

The Idaho courts’ timelines are also notably out of sync with the evolvingstandards caselaw. From the Idaho Supreme Court’s perspective, there must be

some discrete occurrence followed by the filing of a petition within the next fortytwo days. By contrast, this Court’s evolving-standards cases rely on years of data,

sometimes decades of it. See, e.g., Graham, 560 U.S. at 65 (stressing that the

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empirical evidence surveyed by the Court “stretch[ed] back many years”); Coker,

433 U.S. at 593 (going back more than fifty years for one data point).

In short, the Idaho Supreme Court’s confused analysis of how evolving

standards claims operate fails to give effect to their core identity. To cut off the

availability of such a claim before it has any chance of succeeding on the merits, as

Idaho does, deprives capital petitioners of their day in court. Through longstanding

evolving-standards jurisprudence, such petitioners clearly have a right, but they are

left without a remedy in Idaho court, thereby crystallizing the due process issue for

this Court’s consideration.

III.

Idaho is the perfect state to consider.

Apart from the strengths of Mr. Creech’s individual case as a vehicle, his

petition comes to the Court from a broader legal context that is also well-suited to

the due process inquiry. That context is Idaho’s limitations period for successive

post-conviction petitions in capital cases, which is the posterchild of state

contortionism engineered to avoid reviewing serious constitutional claims.

To begin, the limitations period at issue—forty-two days—“is the shortest in

the nation.” Hoffman v. Arave, 236 F.3d 523, 533 (9th Cir. 2001). It is also one of the

most difficult to satisfy substantively. The forty-two days runs from when the

inmate “should have known” about the claim, Stuart v. State, 232 P.3d 813, 826

(2010), a rule the Idaho Supreme Court has enforced so rigidly as to make it

essentially a catechism for denying relief.

The story of this limitations period is a story of a court perpetually moving

the goalposts to frustrate constitutional claims in capital cases. Section 19-2719, the

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source of the limitations period, was enacted in 1984. See Paradis v. State, 912 P.2d

110, 114 (Idaho 1996). The statute generally requires that all claims be raised

within forty-two days of the death judgment. See § 19-2719(3). From this statutory

language, the Idaho Supreme Court has inferred another requirement that with

respect to any claim that “could not have been known within 42 days” the petitioner

must “assert the issue soon after the issue is known.” McKinney v. State, 992 P.2d

144, 150 (Idaho 1999).

For twenty-four years, the Idaho Supreme Court did not tell petitioners what

“soon” meant other than to vaguely describe it as “a reasonable time.” Rhoades v.

State, 17 P.3d 243, 245 (Idaho 2000). Instead of delineating a time period, the Idaho

Supreme Court simply defined the triggering event in such a way that the filing

date was always too late. One early example of this was the court’s determination

that a claim alleging ineffective assistance of appellate counsel became known at

the time the opening brief was submitted. See Paz v. State, 852 P.2d 1355, 1357

(Idaho 1993). At that time, the petitioner was of course still represented by the

potentially ineffective attorney, and would continue to be for some time longer as

the inmate waited for the appeal to become fully briefed, argued, and decided. The

federal district court in Idaho later recognized the “inherent difficulties arising from

application of the rule” in light of the duty it forced on prisoners to challenge the

lawyers who were still actively representing them. Hairston v. Packett, No. CV-00303, 2008 WL 3874614, at *12 (D. Idaho Aug. 15, 2008).

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The Idaho Supreme Court’s commitment to implausible triggering dates did

not lessen with time. Later cases suggested that the appointment of federal habeas

counsel represented a sound triggering date. See Hairston v. State, 156 P.3d 552,

558 (Idaho 2007), vacated on unrelated grounds, 552 U.S. 1227 (2008); Porter v.

State, 32 P.3d 151, 154 (Idaho 2001). The Idaho Supreme Court in such cases did

not engage with how voluminous the records are in capital cases or the fact that

counsel cannot investigate all potential claims simultaneously.

In 2008, the Idaho Supreme Court finally announced what a “reasonable

time” consisted of: “forty-two days after the petitioner knew or reasonably should

have known of the claim.” Pizzuto v. State, 202 P.3d 642, 649 (Idaho 2008). The

Pizzuto court addressed the merits of the claim—not, tellingly, because it was

timely, but because the petitioner “did not have advance notice of” the new fortytwo-day rule. Id. And it was the last time the Idaho Supreme Court would ever

consider the merits of a capital successive post-conviction claim.

In the years since, the court has rigidly deployed the forty-two-day deadline

to justify the dismissal of numerous claims. In one case, a prisoner was informed

that he should have known that a police officer destroyed a critical piece of forensic

evidence—and a court exhibit to boot—years before he actually discovered it. See

Fields v. State, 298 P.3d 241, 243 (Idaho 2013). The same prisoner was later advised

by the Idaho Supreme Court that he “should have known” about a key witness’s

recantation years before it took place. See Fields v. State, 314 P.3d 587, 590–92

(Idaho 2013). More recently, the Idaho Supreme Court blamed a prisoner for

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supposedly waiting to bring a claim based on the fact that the case’s lead detective

had been suspended from duty during the middle of a trial in which he testified

several times—it did not move the court that the inmate’s whole theory was that

the evidence had been wrongly suppressed in violation of Brady v. Maryland, 373

U.S. 83 (1963). See Abdullah v. State, 539 P.3d 947, 960 (Idaho 2023).

It is no coincidence that all of these cases involve claims asserting misconduct

by state actors. This Court has taken pains to ensure that in federal habeas cases

the usual procedural limitations are relaxed when it comes to Brady claims, so that

the government cannot get the benefit of is own malfeasance after it suppresses

evidence. See Banks v. Dretke, 540 U.S. 668, 691–92 (2004); Strickler v. Greene, 527

U.S. 263, 281–82 (1999). The Idaho Supreme Court has done the opposite—it has

expressly held that that the suppression of evidence makes no difference to its

absolutist interpretation of the limitations period. See Abdullah, 539 P.3d at 961

(pointing out that the “time-bar would have no teeth” if the court were to accept

that the state’s illegal suppression of evidence changes the calculus). At the same

time, the Idaho Supreme Court has shut down one of the other main outlets that

many post-conviction regimes (including the federal system) maintain: that of

actual innocence. Just last year, the Idaho Supreme Court declared that for capital

and non-capital cases alike actual innocence will never excuse a time bar. See

Hooley v. State, 537 P.3d 1267, 1276 (Idaho 2023); see also id. at 1281, 1290

(Stegner, J., dissenting) (rebuking the 4-1 majority for “closing the doors of the

courthouse for the petitioner who was wrongfully convicted” and “let[ing] innocence

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take a back seat to finality” in an opinion that “was not only patently wrong but a

miscarriage of justice”).

The Idaho Supreme Court made it clear below that Mr. Creech’s due process

theory was being cast aside on the basis of these same broadly inflexible principles.

In finding no due process violation, the court invoked its Brady precedent and the

idea that the prosecution’s unconstitutional suppression of evidence has no bearing

on the timeliness of a post-conviction petition. App. 8. The message is plain: just as

no exception will be made to hear Brady claims where the delay is caused by

governmental wrongdoing, no exception will be made to hear evolving-standards

claims where the delay is caused by the need for the evidence to accrue. No

exceptions to the shortest, toughest deadline in the country will be made, period.

Indeed, in the forty years that have elapsed since Idaho first codified its current

statute, the state supreme court has never—to undersigned counsel’s knowledge—

vacated a conviction or sentence in a successive post-conviction case, despite dozens

of opportunities. The dearth is not due to a lack of serious constitutional questions

about the integrity of Idaho’s death sentences. See, e.g., Pizzuto v. State, 233 P.3d

86, 89–93 (Idaho 2010) (rejecting as time-barred a Brady claim where the

prosecution withheld information about a secret plea deal struck between the

prosecutor and a key government witness and facilitated by the trial judge). It is

instead because the review of successive capital post-conviction petitions in Idaho is

an illusion.

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Simply put, Idaho law on capital post-conviction claims is as harsh and

unyielding as any state’s in the country. It has been written for the purpose of

excluding constitutional claims from review. If the outer bounds of due process in

this area of law are to be found, it is in Idaho. Mr. Creech’s case deals with an

extreme instance of post-conviction review being denied that arises from a state

with a long and consistent track record of similar denials. Below, the Idaho

Supreme Court directly resolved the due process issue, teeing it up for certiorari

review. To summarize, the petition poses the simplest question in a complex area. It

is the best place to answer the question that was put on hold more than fifty years

ago and which the states are still waiting for today.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted this 20th day of February 2024.

_________________________________

Jonah J. Horwitz

Counsel of Record

Nicole R. Gabriel

Capital Habeas Unit

Federal Defender Services of Idaho

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Telephone: 208-331-5530

Facsimile: 208-331-5559

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