Petition for Writ of Certiorari — Thomas E. Creech, Petitioner v. Tim Richardson, Warden

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

THOMAS E. CREECH,

Petitioner,

v.

TIM RICHARDSON,

Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for

the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

CAPITAL CASE

Jonah J. Horwitz

Counsel of Record

Christopher M. Sanchez

FEDERAL DEFENDER SERVICES OF IDAHO, INC.

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Jonah_Horwitz@fd.org

Christopher_M_Sanchez@fd.org

208-331-5530

Counsel for Petitioner

CAPITAL CASE

QUESTION PRESENTED

Is a federal habeas petition based on late-evolving facts second or successive

when it is not based on a claim that the inmate is incompetent to be executed?

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 denying relief issued, Feb. 9, 2024

United States Court of Appeals, Ninth Circuit

PETITION FOR WRIT OF CERTIORARI – Page iv

Case No. 24-275

Creech v. Richardson

Order denying petition for rehearing en banc, Feb. 24, 2024

Opinion denying relief issued Feb. 29, 2024

United States Supreme Court

Case No. 23-6791

Creech v. State

Petition for certiorari denied, Feb. 28, 2024

Ada County District Court

Case No. CV01-24-4845

Creech v. State

Petition for post-conviction relief pending

PETITION FOR WRIT OF CERTIORARI – Page v

TABLE OF CONTENTS

CAPITAL CASE .............................................................................................................. i

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

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

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

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

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

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

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

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

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

FEDERAL STATUTE INVOLVED ............................................................................... 1

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

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

I.

There is a split among the circuits on whether a non-competency

claim based on late-evolving facts can be successfully brought. ............ 6

II.

This petition presents an important issue. ........................................... 15

III.

Mr. Creech’s case presents an ideal vehicle for settling the issue. ...... 17

IV.

The § 2244(b) bar does not apply to Mr. Creech’s petition. .................. 19

CONCLUSION............................................................................................................. 22

PETITION FOR WRIT OF CERTIORARI – Page vi

APPENDICES

APPENDIX A:

Opinion

Ninth Circuit Court of Appeals

Feb. 29, 2024……………………………………………. App. 001–008

APPENDIX B:

Order Dismissing Petition for Lack of Jurisdiction

United States District Court

Jan. 12, 2024………………………………………...…. App. 009–021

APPENDIX C:

Petition for Writ of Certiorari

Supreme Court of the United States

Feb. 20, 2024……………………………………………. App. 022–052

APPENDIX D:

Petition for Writ of Habeas Corpus

United States District Court

Oct. 16, 2023…………………………………………….App. 053–065

PETITION FOR WRIT OF CERTIORARI – Page vii

TABLE OF AUTHORITIES

Federal Cases

Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006) ......................................................... 20

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

Brown v. Atchley, 76 F.4th 862 (9th Cir. 2023) ................................................ 10, 8, 9

Buntion v. Lumpkin, 31 F.4th 952 (5th Cir. 2022) ............................................... 18, 19

California v. Carney, 471 U.S. 386 (1985) ................................................................ 17

Coker v. Georgia, 433 U.S. 584 (1977) ....................................................................... 21

Creech v. Hardison, No. CV-99-0224-S-BLW, 2017 WL 1129938

(D. Idaho Mar. 24, 2017) ................................................................................... 4

Creech v. Richardson, 94 F.4th 847 (9th Cir. 2024) ................................................... 1

In re Provenzano, 215 F.3d 1233 (11th Cir. 2000) .................................................... 17

Enmund v. Florida, 458 U.S. 782 (1982) ............................................................ 20, 21

Feather v. United States, 18 F.4th 982 (8th Cir. 2021) ............................................ 16

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 7

Gallagher v. United States, 711 F.3d 315 (2d Cir. 2013) .......................................... 11

Graham v. Florida, 560 U.S. 48 (2010) ..................................................................... 21

Hall v. Florida, 572 U.S. 701 (2014) ................................................................... 20, 21

Hill v. Alaska, 297 F.3d 895 (9th Cir. 2002) ............................................................... 9

In re Hill, 81 F.4th 560 (6th Cir. 2023) ................................................... 13, 14, 16, 19

In re Baptiste, 828 F.3d 1337 (11th Cir. 2016) ......................................................... 11

In re Bourgeois, 902 F.3d 446 (5th Cir. 2018) ........................................................... 11

James v. Walsh, 308 F.3d 162 (2d Cir. 2002) ..................................................... 10, 16

Kennedy v. Louisiana, 554 U.S. 407 (2008) ........................................................ 20, 21

Knight v. Florida, 120 S. Ct. 459 (1999) ............................................................. 19, 20

Lackey v. Texas, 514 U.S. 1045 (1995) ...................................................................... 19

Magwood v. Patterson, 561 U.S. 320 (2010) ........................................................... 6, 7

McCrory v. Alabama, 144 S. Ct. 2483 (2024) ............................................................ 16

Miller v. Alabama, 567 U.S. 460 (2012) .................................................................... 21

Panetti v. Quarterman, 551 U.S. 930 (2007) ................................................. 5, 6, 7, 22

Rhodes v. Smith, 950 F.3d 1032 (8th Cir. 2020) ....................................................... 16

Ring v. Arizona, 536 U.S. 584 (2002) .......................................................................... 2

PETITION FOR WRIT OF CERTIORARI – Page viii

Roper v. Simmons, 543 U.S. 551 (2005) .............................................................. 20, 21

In re Salem, 631 F.3d 809 (6th Cir. 2011) ................................................................. 13

Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................................ 4

Scott v. United States, 890 F.3d 1239 (11th Cir. 2018) ...................................... 11, 12

Slack v. McDaniel, 529 U.S. 473 (2000) .................................................................. 6, 7

Stewart v. Martinez–Villareal, 523 U.S. 637 (1998) ................................................... 7

Storey v. Lumpkin, 142 S. Ct. 2576 (2022) ......................................................... 17, 18

Thompson v. Oklahoma, 487 U.S. 815 (1988) ........................................................... 20

United States v. Buenrostro, 638 F.3d 720 (9th Cir. 2011) .............................. 8, 9, 19

United States v. Lopez, 577 F.3d 1053 (9th Cir. 2009) ......................................... 8, 19

Winarske v. United States, 913 F.3d 765 (8th Cir. 2019) ......................................... 11

Federal Constitutional Provisions

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

Federal Statutes

28 U.S.C. § 1254 ........................................................................................................... 1

28 U.S.C. § 2244 ....................................................................................................... 1, 2

State Cases

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

Other Authorities

Execution Database, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/database/executions ..................................... 5, 20

Mark T. Pavkov, Does "Second" Mean Second?: Examining the Split Among

the Circuit Courts of Appeals in Interpreting AEDPA’s "Second or

Successive" Limitations on Habeas Corpus Petitions,

57 Case W. Res. L. Rev. 1007 (2007) .................................................... 13, 14 15

Michael L. Radelet & G. Ben Cohen, The Decline of the Judicial Override,

15 Ann. Rev. L. & Soc. Sci. 539 (2019) ......................................................... 3, 4

Kyle P. Reynolds, "Second or Successive" Habeas Petitions and Late-Ripening

Claims After Panetti v. Quarterman,

74 U. Chi. L. Rev. 1475 (2007) ............................................................ 13, 14, 15

PETITION FOR WRIT OF CERTIORARI – Page ix

INTRODUCTION

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

certiorari to review the judgment of the Ninth Circuit Court of Appeals.

OPINION BELOW

A copy of the Ninth Circuit’s February 29, 2024 opinion is attached as

Appendix A, App. 1–8, and is available at Creech v. Richardson, 94 F.4th 847 (9th

Cir. 2024) (per curiam). A copy of the January 12, 2024 order of the United States

District Court for the District of Idaho is attached as Appendix B, App. 9–21.

JURISIDICTIONAL STATEMENT

On January 12, 2024, the Ninth Circuit Court of Appeals issued an opinion

affirming the district court’s order dismissing Mr. Creech’s October 2023 habeas

petition. On May 9, 2024, Justice Kagan extended Mr. Creech’s deadline for seeking

certiorari review to July 23, 2024. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION 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. 1

FEDERAL STATUTE INVOLVED

This case involves 28 U.S.C. § 2244, which provides in pertinent part:

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

are omitted, and all emphasis is added.

1

PETITION FOR WRIT OF CERTIORARI – Page 1

No circuit or district judge shall be required to entertain an application for a

writ of habeas corpus to inquire into the detention of a person pursuant to a

judgment of a court of the United States if it appears that the legality of such

detention has been determined by a judge or court of the United States on a

prior application for a writ of habeas corpus, except as provided in section

2255.

A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed.

28 U.S.C. § 2244(a), (b)(1).

STATEMENT OF THE CASE

On January 20, 2023, Arizona imposed a moratorium on executions,

including the executions of those sentenced to death by a single judge without any

involvement by a jury. See Dist. Ct. Dkt 2-1 at 11. When it instituted that

moratorium, Arizona, which had by far the biggest death row in the class, exited the

group of five states that were willing to execute judge-sentenced inmates at the time

this Court deemed capital judge sentencing unconstitutional under the Sixth

Amendment. 2 See Ring v. Arizona, 536 U.S. 584, 608 n.6 (2002).

Mr. Creech is a judge-sentenced inmate; the question of whether the death

penalty should be imposed upon him was never submitted to a jury of his peers. 3

Instead, he was sentenced to death twice by a single judge: the Honorable Robert

2 In this petition, the term “judge sentencing” and the like refers to sentencing

schemes of the type held unconstitutional in Ring: where a statute provides that

“following a jury adjudication of a defendant's guilt of first-degree murder, the trial

judge, sitting alone, determines the presence or absence of the aggravating factors

required by [state] law for imposition of the death penalty.” Ring, 536 U.S. at 588.

The petition does not deal with regimes in which juries play reduced roles at

sentencing, such as judicial override and so forth.

3 Mr. Creech pled guilty to first-degree murder. See State v. Creech, 670 P.2d 463,

465 (Idaho 1983). No jury was involved at any stage of the proceedings.

PETITION FOR WRIT OF CERTIORARI – Page 2

Newhouse. See Dist. Ct. Dkt. 2-1 at 3–4. Mr. Creech was first sentenced to death for

the killing of David Jensen on January 25, 1982. See id. Due to issues with his first

sentencing not relevant to the question presented here, he was resentenced to death

again on April 17, 1995. See id. Mr. Creech responded to the 2023 Arizona

moratorium by filing the current petition for writ of habeas corpus in Idaho’s federal

district court on October 13, 2023. See generally App. 53–65. In this petition (his

third-in-time), he argued evolving standards of decency rendered his sentence

unconstitutional because it is cruel and unusual under the Eighth Amendment to

execute a person whose punishment was determined by a single judge, without a

jury. See id.

Arizona was the second state to extricate itself from the group of five states

that still allowed judge-sentenced inmates to be executed at the time of Ring, as

Colorado had abolished the death penalty in 2020. See Dist. Ct. Dkt. 2-1 at 11.

Notably, Arizona has been home to the largest number of judge-sentenced deathrow inmates in the years since this Court decided Ring. See generally Michael L.

Radelet & G. Ben Cohen, The Decline of the Judicial Override, 15 Ann. Rev. L. &

Soc. Sci. 539, 551 (2019). Looking to the three remaining states that still allow

executions of such inmates—namely, Idaho, Montana, and Nebraska—only 0.68% of

inmates on death row in the United States were sentenced to death by judges. 4 Dist.

4 The numbers above were assembled in October 2023, when the federal habeas

petition was filed below. None have subsequently 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

Ct. Dkt. 2-1 at 16, 19–20. More than five years have passed since any of those three

remaining states have carried out an execution, and only one state has executed a

judge-sentenced inmate in the last decade. See id. at 16.

Mr. Creech is a member of the 0.68%. Since his original death sentence was

imposed, Mr. Creech has been engaged in continual litigation covering numerous

proceedings and issues. He filed his first petition for habeas relief in federal court in

1986. App. 10. After the federal district court denied the petition, the Ninth Circuit

reversed, granting Mr. Creech a resentencing hearing in 1995. Id. In 2000, Mr.

Creech filed a second-in-time habeas petition in federal court; all remaining claims

in this petition were denied in March of 2017. See Creech v. Hardison, No. CV-990224-S-BLW, 2017 WL 1129938 (D. Idaho Mar. 24, 2017). Mr. Creech appealed this

denial, which was ultimately affirmed by the Ninth Circuit in February 2023. App.

4. This Court denied certiorari in October 2023. App. 59.

Although this Court decided Ring in 2002, that decision did not apply

retroactively to cases already final on direct review, like Mr. Creech’s. See generally

Schriro v. Summerlin, 542 U.S. 348 (2004). Instead, judge-sentenced inmates

remained on death row in five states after Ring was decided. See Dist. Ct. Dkt. 2-1

at 10, 15–16. Executions of judge-sentenced inmates continued. See id. at 16–19. For

example, seven judge-sentenced inmates were executed in 2012 alone. See id. at 24.

Arizona was home to thirty-six of the forty-six judge-sentenced inmates executed in

the last thirty years. App. 62; Dist. Ct. Dkt. 2-1 at 22. All of these executions

PETITION FOR WRIT OF CERTIORARI – Page 4

occurred during the pendency of Mr. Creech’s first and second federal habeas

petitions.

This landscape changed with the 2023 Arizona moratorium. Consequently,

Mr. Creech filed his federal habeas petition below in the wake of that moratorium.

However, despite the late-evolving fact of Arizona’s moratorium on executions,

lower courts refused to entertain Mr. Creech’s current petition. The district court

rejected the petition as second or successive, reasoning that Mr. Creech “could have

moved to amend his [second-in-time] petition to allege an evolving-standards claim

at any time during [its pendency] once he had a reasonable quantity of data on

which to premise it,” but failed to identify a moment in time where that reasonable

quantity of data would have existed to support the claim. App. 18, 21. The Ninth

Circuit affirmed, concluding Mr. Creech’s Eighth Amendment claim became ripe

during the pendency of his previous petition and could have been brought in 2002

after Ring was decided, at a juncture where executions of judge-sentenced inmates

remained common. App. 5–8; see generally Execution Database, DEATH PENALTY

INFO. CTR., https://deathpenaltyinfo.org/database/executions (last visited July 16,

2024). This certiorari petition followed.

REASONS FOR GRANTING THE WRIT

Mr. Creech is asking this Court to provide clarity on the question of whether

a petition based on new facts unrelated to competency can survive the § 2244(b) bar

on second or successive petitions. While this Court provided guidance on the

question of successiveness in the competency context in Panetti v. Quarterman, 551

PETITION FOR WRIT OF CERTIORARI – Page 5

U.S. 930 (2007), a circuit split has developed on the proper interpretation of the

holding in that case, with some courts expanding Panetti beyond the competency

context and others declining to allow petitioners to bring claims based on new facts

that are unrelated to competency.

I.

There is a split among the circuits on whether a non-competency

claim based on late-evolving facts can be successfully brought.

Guidance from this Court is needed to resolve a circuit split on the question

of whether the bar on second or successive habeas petitions applies to second-intime petitions based on facts that did not exist at the time the initial petition was

brought. Section 2244(b)(2), a product of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), requires that “[a] claim presented in a second or successive

[28 U.S.C. § 2254] application . . . that was not presented in a prior application be

dismissed” unless one of two exceptions applies. (The two exceptions are strict and

rarely satisfied—for the remainder of this petition, Mr. Creech will for simplicity’s

sake treat successiveness as an absolute obstacle to proceeding.) But as this Court

has explained, if an application is not second or successive, it is not subject to the

strictures of § 2244(b). See Magwood v. Patterson, 561 U.S. 320, 331 (2010). It is

well-settled that the phrase second or successive does not simply refer “to all § 2254

applications filed second or successively in time.” Panetti, 551 U.S. at 944. This

Court has described the phrase “second or successive” as a “term of art[.]” Slack v.

McDaniel, 529 U.S. 473, 486 (2000).

Thus far, this Court has identified three circumstances when a petition is

second-in-time but isn’t “second or successive:” when a petition challenges a new

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state-court judgement, when a petition contains a claim which was raised in a

previous petition but was unexhausted at that time and not decided on the merits,

and when a petition contains a competency-to-be-executed claim that would have

been unripe at the time of the filing of the first petition, i.e., a claim brought under

Ford v. Wainwright, 477 U.S. 399 (1986). See Magwood, 561 U.S. at 331; Slack, 529

U.S. at 486–87, 489; Panetti, 551 U.S. at 947; Stewart v. Martinez–Villareal, 523

U.S. 637, 639 (1998). To be clear, Mr. Creech is not raising the issue of late-evolving

facts in the form of a new state-court judgment (Magwood), or the recent exhaustion

of claims (Slack); rather, his petition includes constitutional claims based on other

kinds of facts that evolved after his initial petition was brought—the diminution in

executions of prisoners sentenced to death solely by judges.

As detailed below, the courts to have considered the issue of whether newly

developed non-Ford claims can be non-successive are split as to its resolution. The

Second and Seventh Circuits have declined to apply the § 2244(b) bar to a petition

that is not chronologically first if that petition raised non-Ford claims based on lateevolving facts, and the Ninth Circuit has generally taken the same approach. The

Eleventh Circuit has indicated its agreement with the Second, Seventh, and Ninth

Circuits on this issue, but is prevented from applying a permissive interpretation of

the second-or-successive bar without approval from this Court because of an

internal rule. There is an entrenched, long-standing, and clear disagreement

between these four circuits and the Fifth and Sixth Circuits, which treat second-in-

PETITION FOR WRIT OF CERTIORARI – Page 7

time petitions based on late-evolving facts as always successive when they do not

raise competency claims.

In general, the Ninth Circuit has not applied the § 2244(b) bar to claims

based on factual predicates that have accrued only after the conclusion of the initial

federal habeas proceedings, even when they are non-Ford claims. In the Ninth

Circuit, “[p]risoners may file second in time petitions based on events that do not

occur until a first petition is concluded[.]”. United States v. Buenrostro, 638 F.3d

720, 725 (9th Cir. 2011). Under the Ninth Circuit’s approach, “Martinez and Panetti

do not apply only to Ford claims.” Buenrostro, 638 F.3d at 725. As a result, the

considerations this Court identified in support of its holding in Panetti “are not

specifically limited to Ford claims, and therefore must be considered in deciding

whether other types of claims that do not survive a literal reading of AEDPA’s

gatekeeping requirements may nonetheless be addressed on the merits.” United

States v. Lopez, 577 F.3d 1053, 1063–64 (9th Cir. 2009). “A prisoner whose

conviction and sentence were tested long ago may still file petitions relating to

denial of parole, revocation of a suspended sentence, and the like because such

claims were not ripe for adjudication at the conclusion of the prisoner’s first federal

habeas proceeding.” Buenrostro, 638 F.3d at 725.

In Brown v. Atchley, the Ninth Circuit applied the abuse-of-the-writ doctrine

to rule that successiveness depended on whether the events that gave rise to the

inmate’s constitutional claims had occurred before either of his first two petitions

were denied or dismissed. 76 F.4th 862, 872 (9th Cir. 2023). If those events had

PETITION FOR WRIT OF CERTIORARI – Page 8

occurred before his petitions were denied or dismissed, “[they] could have been

brought in either petition and— consistent with pre-AEDPA abuse of the writ

doctrine requiring claims to be brought at the earliest opportunity— . . . [would be]

second or successive.” Id. The Ninth Circuit held Brown’s claims “did not become

ripe until . . . his application for resentencing was denied, which occurred well after

the district court denied his first and dismissed his second habeas petitions,”

because Brown had alleged a due process violation resulting from his continued

confinement, ineffective assistance of counsel in the form of a failure to prepare

properly for the hearing on his application for resentencing, and an equal protection

violation based on how the results of his resentencing differed from those of other

prisoners. Id. Accordingly, his third- and fourth-in-time petitions were not second or

successive. See id. at 873.

But the Ninth Circuit’s analyses have been inconsistent with one another.

The Ninth Circuit denied Mr. Creech the benefit of its rule that “[p]risoners may file

second in time petitions based on events that do not occur until a first petition is

concluded[,]” Buenrostro, 638 F.3d at 725, without any acknowledgment of Brown,

Buenrostro, or Lopez. App. 1–8. While the Ninth Circuit has extended the benefit of

that general rule to other prisoners, see, e.g., Hill v. Alaska, 297 F.3d 895, 898–99

(9th Cir. 2002); Brown, 76 F.4th at 87s, its decision in Mr. Creech’s case fell in line

with circuits on the opposite side of the split.

The Seventh Circuit effectively shares the Ninth Circuit’s typical approach,

since it has elected not to apply the second or successive bar in a non-Ford context

PETITION FOR WRIT OF CERTIORARI – Page 9

in which a prisoner was unable to raise certain claims in his initial habeas petition.

See United States v. Obeid, 707 F.3d 898, 903 (7th Cir. 2013). In Obeid, the Seventh

Circuit characterized a second-in-time petition as not successive where the factual

predicate—a motion for reduction of sentence on behalf of another prisoner

excluding the petitioner even though the government had promised to treat both the

same for sentencing purposes—had not occurred until several months after the

initial petition was denied. See id.

In James v. Walsh, the Second Circuit agreed with the Ninth and Seventh

that a second-in-time petition based on late-evolving facts unrelated to competency

should be treated as a first petition instead of being barred by AEDPA’s

gatekeeping provisions. See 308 F.3d 162, 165–68 (2d Cir. 2002). Petitioner argued,

and the Second Circuit agreed, that his claim that the New York Department of

Corrections had miscalculated his release date and thus was holding him illegally,

could not have been brought until April 1999, when his correct release date came

and went. See id. at 168. “Because the claim asserted in the 1999 petition did not

exist when [Petitioner] filed his [initial] 1997 petition, the 1999 petition was not

second or successive for the purposes of AEDPA’s gatekeeping provisions.” Id.

Finally, while the Eleventh Circuit has joined the Ninth, Seventh, and

Second in recognizing that late-evolving facts may render a petition non-successive,

its prior-panel-precedent rule calls for approval from this Court before lifting the

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AEDPA bar. See Scott v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018). 5 The

Eleventh Circuit announced in Scott that this Court’s analysis in Panetti was not

restricted to second-in-time petitions involving only Ford claims. 890 F.3d 1239,

1254 (11th Cir. 2018). The Eleventh Circuit arrived at this conclusion first by

reasoning that had Panetti been limited to Ford claims, this Court would have

specified competency claims were the singular exception to AEDPA’s second or

successive bar, instead of doing what it did and articulating a generally applicable

rule and then stating that there are exceptions—plural—to the bar. See id.

Secondly, it noted Panetti’s holding was derived from “three different generally

applicable factors,” namely “implications for habeas practice, AEDPA’s purposes,

and the abuse-of-the-writ doctrine,” none of which “[applies] in such a way as to

allow only Ford claims through.” Id. Nevertheless, the circuit court’s own internal

prior-panel-precedent rule prevented it from applying the Panetti factors in a nonFord context in the manner it thought to be proper without the go-ahead from this

Court. See id. at 1256–57. The prior-panel-precedent rule means that absent a

Supreme Court or en banc ruling to the contrary, subsequent panels of a court must

follow the precedent of the first panel to address the relevant issue, even when a

Courts have analyzed successiveness in the same manner for applications filed

under both § 2254 and § 2255. See, e.g., Gallagher v. United States, 711 F.3d 315,

315 (2d Cir. 2013) (per curiam); In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016)

(per curiam); In re Bourgeois, 902 F.3d 446, 447 (5th Cir. 2018); Winarske v. United

States, 913 F.3d 765, 768–69 (8th Cir. 2019). As a result, this petition cites § 2254

and § 2255 cases without drawing any distinction between the two.

5

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later panel is convinced the earlier panel is wrong, which the Eleventh Circuit panel

was in this case according to Scott. See id.

On the other side of the circuit split from the Second, Seventh, Ninth and

Eleventh Circuits are the Fifth and Sixth Circuits. The Sixth Circuit applies the

§ 2244(b) gatekeeping criteria to petitions based on late evolving facts outside the

competency context. See In re Hill, 81 F.4th 560 (6th Cir. 2023) (en banc), cert.

denied, 2024 WL 2116359 (2024). In Hill, the petitioner sought habeas relief in a

second-in-time application which relied on a new 2013 scientific report from the

American Board of Forensic Odontology (“ABFO”). See id. at 566. The ABFO report,

which was created twenty-four years after petitioner’s direct appeal became final

and seventeen years after he filed his initial habeas petition, recommended that

forensic odontologists refrain from testifying that they can identify bite marks as

belonging to specific individuals. See id. Because the state’s expert at trial had

presented exactly this type of testimony, the petitioner claimed his due process

rights had been violated. See id. The Sixth Circuit admitted the petitioner had

presented “new evidence—evidence that wasn’t available to him at the time of trial”

and had raised a new claim on that new evidence. Id. at 571–72. But the court still

ruled “any new evidence undermining the government’s trial testimony could go

toward meeting the gatekeeping provisions under § 2244(b)(2)(B) . . . but couldn’t go

toward showing the claim wasn’t second or successive.” Id. at 571.

The Sixth Circuit stated in a footnote that this Court seemed to “cabin” its

Panetti ruling to the “unusual posture of Ford claims”—nevertheless, the circuit

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court had extended Panetti to other types of claims. Id. at 568 n.6. The court cited

one example of such a claim. See id. (citing In re Salem, 631 F.3d 809, 812–13 (6th

Cir. 2011)). In Salem, the court declared that because the inmate’s entrapment

claim was based on evidence from a hearing that had yet to occur at the time his

initial petition was filed, the second-in-time petition in which it was raised was not

successive. 631 F.3d at 812–13. But the Sixth Circuit concluded without further

explanation that Salem was not relevant in Hill for the sole reason that it dealt

with entrapment rather than scientific developments. 81 F.4th at 568 n.6. Despite

this observation, the Sixth Circuit did not address why the logic of Salem was

inapplicable to the ABFO report.

Likewise, the Fifth Circuit has adopted such an extreme interpretation of

this Court’s decision in Panetti as to completely foreclose the possibility that it could

apply to non-Ford claims. In Buntion v. Lumpkin, 31 F.4th 952, 961 (5th Cir. 2022),

the circuit court made extraordinarily short work of dismissing the possibility that

Panetti applied, devoting exactly three sentences of its opinion to its conclusion that

no reasonable jurist could argue for that possibility. The only reasoning the Fifth

Circuit offered in those three sentences was that this Court has never explicitly

proclaimed that Panetti could apply in a non-Ford context. See id.

Legal scholars have recognized the circuit split on the question presented in

this petition and the implications it holds for habeas practice and the constitutional

rights of prisoners across this country. See Kyle P. Reynolds, "Second or Successive"

Habeas Petitions and Late-Ripening Claims After Panetti v. Quarterman, 74 U. Chi.

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L. Rev. 1475, 1499–1500 (2007); see also Mark T. Pavkov, Does "Second" Mean

Second?: Examining the Split Among the Circuit Courts of Appeals in Interpreting

AEDPA’s "Second or Successive" Limitations on Habeas Corpus Petitions, 57 Case

W. Res. L. Rev. 1007 (2007). “The majority of the lower courts facing this issue have

held that, once an initial petition is adjudicated on the merits, a petition containing

a claim that has ripened in the meantime is not necessarily ‘second or successive’

under AEDPA,” but not every court has taken this permissive approach to

chronologically successive petitions. Reynolds, 74 U. Chi. L. Rev. at 1487–90.

Reynolds postulated in 2007 that a situation exactly like Mr. Creech’s would

arise. See id. at 1499–1500. He imagined a case in which a decision creating a

constitutional category restriction on the death penalty would be handed down

while a covered prisoner was awaiting execution. See id. Even if such a decision was

not made retroactive on collateral review, he argued, it was possible it would still

come to result in a valid constitutional challenge to a death sentence itself while the

prisoner was waiting for the sentence to be carried out. See id. Reynolds sounded

the alarm sixteen years ago, warning the courts that the division over the

interpretation of AEDPA’s gatekeeping provisions “[had] the potential to foreclose

review of meritorious constitutional claims” which “do not become ripe until after

the prisoner has been convicted and sentenced, and perhaps after one habeas

petition has been presented and denied on the merits.” See id. at 1475, 1499–1500.

In addition to pointing out, as Reynolds did, that “case law is replete with

different and inconsistent interpretations of AEDPA's second or successive

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limitations[,]” Pavkov argued that adopting a more permissive interpretation of the

second-or-successive bar “ensures that claims that are not available to a habeas

petitioner at the time of their first habeas petition, because the claims are not

known or do not yet exist, can be heard in a subsequent habeas petition if raising

the claim does not abuse the writ of habeas corpus.” Pavkov, 57 Case W. Res. L.

Rev. at 1009, 1024. “In contrast, a literal reading or plain meaning interpretation of

second or successive forecloses federal review of all constitutional claims that could

not have been raised in a petitioner's initial habeas petition.” Id. at 1024.

The Fifth Circuit is correct that this Court has never explicitly expanded

Panetti. Nor did Panetti’s predecessors, Martinez-Villareal and Ford, clarify how to

resolve the issue of late-evolving facts outside of the realm of competency. This

Court has not spoken to whether a petition based on new facts can be brought

outside of the competency realm as a non-successive case. Considering the widening

chasm between the circuits, there is no realistic proposition that the conflict will

resolve itself without this Court’s intervention.

II.

This petition presents an important issue.

Because late-evolving facts are often brought to the attention of the courts,

the issue of successiveness is a common one, and additional guidance from this

Court is needed. There are many similar capital cases which rely on new facts

unrelated to competency that have evolved following the denial or dismissal of

initial petitions. See supra at Part I. Quite apart from death-row inmates who

invoke recently discovered but previously existing evidence, these cases involve new

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facts which are not just freshly discovered but also only came into being after an

initial habeas petition was filed.

For example, the field of forensic science does not cease to advance when the

initial habeas petition in a capital case involving forensic evidence is filed.

Significant new facts in the form of scientific research and reporting continue to

evolve after initial habeas litigation concludes. For example, in McCrory v.

Alabama, 144 S. Ct. 2483, 2483 (2024) (Sotomayor, J., respecting the denial of

certiorari), as in Hill, 81 F.4th at 560, new scientific reports demonstrating that bite

mark matching techniques were unreliable did not evolve until the late stages of

litigation. In Rhodes v. Smith, 950 F.3d 1032, 1036 (8th Cir. 2020), and Feather v.

United States, 18 F.4th 982, 985 (8th Cir. 2021), other types of new medical

literature, including cause of deaths studies, called the states’ theories into

question.

Similarly, the situation in which a prisoner is serving their sentence may

change drastically after the filing of their initial petition, resulting in new facts on

which to base claims in a chronologically second petition. For example, the fact that

an inmate has filed a petition does not eliminate the possibility that the

Department of Corrections could incorrectly calculate his release date, meaning an

inmate might go from being held legally to being held illegally once the correct

release date has passed. See James, 308 F.3d at 168. Or, in a death penalty case,

the state’s plan for carrying out an execution may be fundamentally altered after an

inmate’s initial habeas petition has been brought. Consider, for example, In re

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Provenzano, a case in which a Florida inmate raised a claim that his execution by

lethal injection would violate the Eighth Amendment. 215 F.3d 1233 (11th Cir.

2000). At the time Provenzano’s initial habeas petition was filed, executions by

means of lethal injection did not exist in Florida. See id. at 1235–36.

Without additional guidance from this Court, even those circuits like the

Ninth, Second, Seventh and Eleventh, which have stated their willingness to

entertain chronologically second petitions based on late-evolving facts, are likely to

prevent some petitioners, as they have prevented Mr. Creech, from bringing

meritorious constitutional claims. Any further delay in resolving the question

presented would only allow for additional claims based on new facts to be thrown

out. The question Mr. Creech raises has percolated sufficiently in the lower courts

to merit this Court’s review. See, e.g., California v. Carney, 471 U.S. 386, 398 (1985)

(Stevens, J., dissenting) (quoting with approval the principle that the Court declines

to intervene “in the absence of a fully percolated conflict”). It is time to resolve it.

III.

Mr. Creech’s case presents an ideal vehicle for settling the issue.

Mr. Creech’s case presents an ideal vehicle for settling the issue. It is

especially appropriate for this Court to grant a petition for certiorari in a case like

Mr. Creech’s, which reveals an internal inconsistency in a single circuit, in addition

to highlighting entrenched, long-standing, and clear disagreement between at least

six different circuit courts. See supra at Part I.

Moreover, the question of the successiveness of Mr. Creech’s petition is the

only issue in this case, because successiveness is a prerequisite to any other issue.

See App. 1–21; contra Storey v. Lumpkin, 142 S. Ct. 2576, 2578 (2022) (Sotomayor,

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J., respecting the denial of certiorari) (criticizing the Fifth Circuit’s approach to

successiveness and late-evolving facts but voting against certiorari because the

procedural posture of the proceedings made them “a poor fit for this Court’s

review”). Furthermore, both the Ninth Circuit and the district court below resolved

the case based entirely on successiveness. App. 1–21. The case therefore tees the

question up as cleanly as possible. In addition, Mr. Creech has consistently argued

below that the claim is not successive, and no procedural or jurisdictional barriers

would prevent this Court from reaching the question presented.

Mr. Creech’s certiorari petition provides a chance for this Court to clarify

whether its holding in Panetti applies to non-Ford cases, and if so, to which types of

cases Panetti applies. Because it is entirely unrelated to competency, Mr. Creech’s

claim plainly falls outside of the Ford context. But the Ninth Circuit did not hold

that Mr. Creech’s petition was successive because it fell outside of the realm of

competency. Compare App. 1–8, with Buntion, 31 F.4th at 961. Instead, the Ninth

Circuit ruled that Mr. Creech’s claim was “predictable,” as Ring inevitably brought

about fewer judge-sentenced executions, and thus the claim could have been

brought during the pendency of a prior petition. App. 6–8. The Ninth Circuit has

given this Court one model of how it might construct a framework for determining

whether a non-competency petition based on new facts is successive, that of

predictability, which makes it a helpful platform for clarifying the issue.

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IV.

The § 2244(b) bar does not apply to Mr. Creech’s petition.

Although Mr. Creech’s petition is made certiorari-worthy based on the circuit

split and the attractiveness of his case as a vehicle, reviewing the matter would also

allow this Court to correct legal errors that infected the proceedings below and that

have plagued many other successiveness cases. Both the general approach by the

Fifth and Sixth Circuits of only allowing Ford claims to survive the second or

successive bar and the Ninth Circuit’s specific opinion below are erroneous because

they ignore Panetti’s specific language and broader analysis. See App. 1–8; Buntion,

31 F.4th at 961; Hill 81 F.4th at 568 n.6. Because it treats the Panetti opinion

carelessly, the Ninth Circuit’s opinion below represents an outlier within the circuit

that looks more like the Fifth and Sixth Circuit precedent, rather than the Ninth

Circuit’s usual approach. Compare App. 1–8, Buntion, 31 F.4th at 961, and Hill, 81

F.4th at 568 n.6, with Buenrostro, 638 F.3d at 725, and Lopez, 577 F.3d at 1064.

Had the Ninth Circuit properly applied its own previously established framework, it

would not have ruled that Mr. Creech’s petition was successive.

Mr. Creech has asserted a claim that this Court has not foreclosed: an Eighth

Amendment evolving-standards claim based on new statistics that did not exist at

the time he filed his initial petition because standards had not yet evolved. Instead

of treating that claim on its own terms, the Ninth Circuit analogized it to Lackey.

See generally Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of

certiorari). Lackey claims challenge death sentences on the ground that the inmate

has been on death row for so long that it would violate the Eighth Amendment to

carry out an execution. See, e.g., Knight v. Florida, 120 S. Ct. 459, 461–65 (1999)

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(Breyer, J., dissenting from the denial of certiorari). In finding a late-blooming

Lackey claim successive, the Ninth Circuit has reasoned that “[t]here is no

fluctuation or rapid change at the heart of a Lackey claim, but rather just the

steady and predictable passage of time.” Allen v. Ornoski, 435 F.3d 946, 958 (9th

Cir. 2006). In other words, a Lackey claim is inevitably available in every capital

case. As soon as an inmate is on death row, he knows he will have a Lackey claim

because he knows he will age. The same cannot be said of Mr. Creech’s claim. Mr.

Creech did not know that Arizona would impose a moratorium on executions. If

Arizona were carrying out executions now, Mr. Creech would not have his claim.

His claim depended not on the steady and predictable passage of time, but on the

vicissitudes of execution rates.

The Ninth Circuit panel found that Mr. Creech’s claim is successive solely on

the basis that it should have been brought “in the years immediately following” this

Court’s decision in Ring, without acknowledging the fact that executions of judgesentenced individuals continued after Ring was decided. See App. 1–8; see generally

Execution Database, supra. This Court’s evolving-standards precedent places a

premium on execution rates. See, e.g., Hall v. Florida, 572 U.S. 701, 716 (2014);

Kennedy v. Louisiana, 554 U.S. 407, 432–34 (2008); Roper v. Simmons, 543 U.S.

551, 564–65 (2005); Atkins v. Virginia, 536 U.S. 304, 315–16 (2002); Thompson v.

Oklahoma, 487 U.S. 815, 832 (1988); Enmund v. Florida, 458 U.S. 782, 794–95

(1982). But in the years immediately following Ring, at the time the Ninth Circuit

would have had Mr. Creech bring his claim, no data existed that was as strong as

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any of the statistics in the cases where this Court struck down sentencing practices

as inconsistent with evolving standards of decency. See, e.g., Miller v. Alabama, 567

U.S. 460, 485–87 (2012); Graham v. Florida, 560 U.S. 48, 62–66 (2010); Kennedy,

554 U.S. at 407; Roper, 543 U.S. at 551; Atkins, 536 U.S. at 304; Enmund, 458 U.S.

at 782; Coker v. Georgia, 433 U.S. 584, 596 (1977) (per curiam).

As this court has made plain, it is not the reason behind a reduction in

executions, nor whether petitioners’ counsel could have predicted such a reduction,

that determines the viability of such a claim: it is the execution data itself. See

Roper, 543 U.S. at 551; Hall, 572 U.S. at 701. Execution data as it exists now did

not exist at the time Mr. Creech’s prior habeas proceedings concluded in 2017.

When Arizona left the group of states still engaged in the practice of executing

judge-sentenced inmates, new execution data was created. See Dist. Ct. Dkt. 2-1 at

11 (describing the moratorium). At that point in time, there existed facts upon

which Mr. Creech could rely, facts which rendered his petition non-successive. The

moratorium was critical to the viability of Mr. Creech’s claim under this Court’s

binding precedent. But the Ninth Circuit shrugged off the moratorium, ruling that

Mr. Creech’s claim was ripe when Ring was decided because “judge sentenced

executions” were practiced in “only a small minority of jurisdictions.” App. 6. This

Court has never suggested that alone is sufficient to support an evolving-standards

claim.

The purposes of AEDPA and implications for habeas practice that this Court

used in Panetti to confirm that the Panetti petitioner’s claim was not second or

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successive resonate here. See Panetti, 551 U.S. at 930, 943–47. Had Mr. Creech’s

claim been raised earlier, there would have been no choice but to dismiss it. To

obligate petitioners like Mr. Creech to try to predict which claims will become viable

and to file factually unsupported claims, or, in the alternative, to never have their

claims heard, would be to the detriment of all parties involved in habeas practice.

By the Ninth Circuit’s reasoning, when Mr. Creech failed to divine that his

evolving-standards claim would arise decades in the future, he foreclosed the

possibility that it would ever be heard. But future developments in execution

practice in the five states that executed judge-sentenced inmates were outside of

Mr. Creech’s field of knowledge and control. Petitioners like Mr. Creech should not

be punished for their lack of clairvoyance, nor should the successiveness of their

petitions turn on speculation in lower courts about whether the evolution of the

facts underlying their claims was predictable.

Because the claims in Mr. Creech’s petition rely on late-evolving facts, his

petition is not second or successive.

CONCLUSION

The petition for certiorari should be granted.

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Respectfully submitted this 23rd day of July 2024.

Jonah J. Horwitz

Counsel of Record

Christopher M. Sanchez

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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