Petition for Writ of Certiorari — Thomas E. Creech, Petitioner v. Tim Richardson, Warden
Supreme Court briefJul 23, 2024
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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
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
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
INDEX TO APPENDIX
APPENDIX A:
Opinion
Ninth Circuit Court of Appeals
Feb. 29, 2024……………………………………………. App. 001–008
APPENDIX B:
Order Dismission 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
Appendix – Page i
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. CREECH,
Petitioner-Appellant,
v.
TIM RICHARDSON, Warden,
No. 24-275
D.C. No.
1:23-cv-00463AKB
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
Amanda K. Brailsford, District Judge, Presiding
Argued and Submitted February 22, 2024
San Francisco, California
Filed February 23, 2024
Before: William A. Fletcher, Jay S. Bybee, and Morgan B.
Christen, Circuit Judges.
Per Curiam Opinion
App. 001
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2
CREECH V. RICHARDSON
SUMMARY*
Habeas Corpus/Death Penalty
The panel affirmed the district court’s judgment
dismissing Idaho death row inmate Thomas Eugene
Creech’s 28 U.S.C. § 2254 habeas corpus petition as barred
by 28 U.S.C. § 2244(b), which mandates dismissal of most
claims filed in “second or successive” federal habeas
petitions.
Creech’s execution is scheduled for February 28, 2024.
The panel held that Allen v. Ornoski, 435 F.3d 946 (9th
Cir. 2006), makes clear that Creech’s current petition, his
third, is precluded as second or successive.
Creech’s current petition raised an Eighth Amendment
claim that society’s evolving standards of decency since
Ring v. Arizona, 536 U.S. 584 (2002), have rendered
unconstitutional a death sentence imposed by a judge rather
than a jury. Ring held that the Sixth Amendment prohibits
judicial factfinding of facts necessary to the imposition of
the death penalty; such facts must instead be found by a jury.
Ring does not apply retroactively to sentences, like Creech’s,
that were final on direct review before Ring was decided.
Creech argued that, in light of a national movement away
from executions of judge-sentenced prisoners since Ring, the
Eighth Amendment independently requires that a death
sentence be imposed by a jury.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
App. 002
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CREECH V. RICHARDSON
3
Applying Allen, the panel disagreed with Creech’s
argument that his evolving standards of decency claim
became ripe only after a moratorium on all executions in
Arizona was put in place in January 2023; the panel wrote
that Creech did not show that his claim was unripe in the
years immediately following Ring. The panel therefore
concluded that Creech could have brought a ripe Eighth
Amendment claim during the pendency of his previous
petition in the district court.
COUNSEL
Jonah Horwitz (argued), Assistant Federal Public Defender,
Capital Habeas Unit, Federal Public Defenders of Idaho,
Boise, Idaho, for Petitioner-Appellant.
L. LaMont Anderson (argued), Deputy Attorney General,
Idaho Office of the Attorney General, Boise, Idaho, for
Respondent-Appellee.
App. 003
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4
CREECH V. RICHARDSON
OPINION
PER CURIAM:
Petitioner-Appellant Thomas Eugene Creech, a death
row inmate in Idaho, appeals the denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. His execution is
currently scheduled for February 28, 2024, less than a week
from now.
In 1981, while serving two life sentences for first-degree
murder, Creech killed a fellow prisoner and was sentenced
to death. The circumstances of the killing and Creech’s
previous post-conviction proceedings are discussed in our
opinion in Creech v. Richardson, 59 F.4th 372 (9th Cir.
2023).
Creech filed two habeas petitions in federal court before
filing the current petition. His first petition led to the vacatur
of his sentence and a resentencing hearing in 1995. See id.
at 378–79. At that hearing, the sentencing judge again
imposed a death sentence, acting without a jury as authorized
by then-applicable Idaho law. See id. at 379–80. Creech
challenged his renewed death sentence in a second federal
habeas petition. Litigation of that petition ended in the
district court in 2017. We affirmed the district court’s denial
of habeas in 2023. Id. at 394.
Creech filed the current petition in October 2023, shortly
after his death warrant was issued and his execution date was
set. His petition raises an Eighth Amendment claim that
society’s evolving standards of decency since Ring v.
Arizona, 536 U.S. 584 (2002), have rendered
unconstitutional a death sentence imposed by a judge rather
than a jury. Ring held that the Sixth Amendment prohibits
App. 004
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CREECH V. RICHARDSON
5
judicial factfinding of facts necessary to the imposition of
the death penalty; such facts must instead be found by a jury.
See id. at 609. The Sixth Amendment rule of Ring does not
apply retroactively to sentences, like Creech’s, that were
final on direct review before Ring was decided. Schriro v.
Summerlin, 542 U.S. 348, 358 (2004). Creech argues that
the Eighth Amendment independently requires that a death
sentence be imposed by a jury.
The district court dismissed Creech’s petition. The court
concluded that the petition was barred by 28 U.S.C.
§ 2244(b), which mandates dismissal of most claims filed in
“second or successive” federal habeas petitions.
We affirm. A later-filed petition is precluded as second
or successive under 28 U.S.C. § 2254 if the claim it raises
was ripe and could have been brought in the prisoner’s prior
petition challenging the same judgment.
Panetti v.
Quarterman, 551 U.S. 930, 945 (2007). Our holding in
Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006), makes clear
that Creech’s current petition is precluded as second or
successive.
In Allen, we considered a so-called Lackey claim brought
in a prisoner’s second federal habeas petition—a claim that
“suffering the ravages of death row for a lengthy duration
violate[s] the Eighth Amendment.” Id. at 956 (citing Lackey
v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting
denial of certiorari)). Petitioner Allen argued “that his
execution would violate the Eighth Amendment because of
the inordinate length of time, twenty-three years, he has
spent on death row and the ‘horrific’ conditions of his
confinement.” Id. at 950.
We concluded in Allen that the petition was precluded as
second or successive. We distinguished Allen’s claim from
App. 005
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6
CREECH V. RICHARDSON
the claim brought in Ford v. Wainwright, 477 U.S. 399
(1986). The Supreme Court held in Ford that “the Eighth
Amendment prohibits a State from carrying out a sentence
of death upon a prisoner who is insane.” Id. at 409–10. We
wrote in Allen that, unlike a Ford claim, “a Lackey claim
does not become ripe only after a certain number of years or
as the final hour of the execution nears. There is no
fluctuation or rapid change at the heart of a Lackey claim,
but rather just the steady and predictable passage of time.”
Allen, 435 F.3d at 958.
Much the same is true of Creech’s current Eighth
Amendment claim. The proposed factual predicate for
Creech’s claim is a national movement away from
executions of judge-sentenced prisoners since Ring,
evidencing, in Creech’s view, an evolving standard of
decency.
Creech argues that his evolving standards of decency
claim became ripe only after a moratorium on all executions
in Arizona was put in place in January 2023. We disagree.
Even when Ring was decided in 2002, only a small
minority of jurisdictions authorized judge-imposed death
sentences. See Ring, 536 U.S. at 608 n.6; see also Walton v.
Arizona, 497 U.S. 639, 710–11 (1990) (Stevens, J.,
dissenting), overruled by Ring v. Arizona, 536 U.S. 584
(2002); Woodson v. North Carolina, 428 U.S. 280, 291–92
(1976) (plurality opinion). It was clear, once Ring was
decided, that the number of executions of judge-sentenced
capital defendants would decrease in the years to follow as
those defendants were executed, were granted clemency, or
died of natural causes, or as their States imposed broader
restrictions on executions generally.
App. 006
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CREECH V. RICHARDSON
7
Even though some judge-sentenced capital defendants
are on death row in Arizona, Creech does not claim that
Arizona’s moratorium was motivated by standards-ofdecency concerns about the execution of those judgesentenced defendants. In support of his argument that the
reason for Arizona’s moratorium is irrelevant, Creech cites
Hall v. Florida, 572 U.S. 701 (2014), in which the Supreme
Court mentioned states that had entirely abolished or
suspended their use of the death penalty as part of its
discussion of the evidence indicating society’s “rejection of
the strict 70 [IQ] cutoff” for claims of incapacity to be
executed under Atkins v. Virginia, 536 U.S. 304 (2002).
Hall, 572 U.S. at 716–18. Creech also points to Roper v.
Simmons, 543 U.S. 551 (2005), in which the Court said, “a
State’s decision to bar the death penalty altogether of
necessity demonstrates a judgment that the death penalty is
inappropriate for all offenders, including juveniles.” Id. at
574.
Creech is correct that the Court has, at times, considered
categorical death-penalty bans in assessing evolving
standards of decency with respect to particular categories of
death sentences. But even assuming the correctness of
Creech’s interpretation of the Supreme Court’s caselaw, his
argument rests entirely on the claim that Arizona’s
moratorium is evidence of evolving standards of decency
with respect to judge-imposed death sentences. Even on that
assumption, he has not shown that his claim was unripe in
the years immediately following Ring, when judgesentenced executions were practiced in only a small minority
of jurisdictions, and when the Supreme Court in Ring had
rejected judicial factfinding that exposes a capital defendant
to death. Moreover, even assuming that categorical
execution moratoria can provide a basis for Creech’s Eighth
App. 007
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8
CREECH V. RICHARDSON
Amendment claim, several such bans had been imposed in
the years before Creech’s habeas proceedings ended in the
district court. See, e.g., Hall, 572 U.S. at 716 (noting
Oregon’s 2011 moratorium); Cooper v. Newsom, 13 F.4th
857, 861–62 (9th Cir. 2021) (discussing, inter alia, a
moratorium on California executions imposed in 2006);
Commonwealth v. Williams, 129 A.3d 1199, 1202 (Pa. 2015)
(discussing Pennsylvania’s 2015 moratorium).
We therefore conclude that Creech could have brought a
ripe Eighth Amendment claim during the pendency of his
previous petition in district court. Once Creech’s claim
became ripe, the passage of time and later events were
irrelevant to the ripeness determination. See Allen, 435 F.3d
at 958 (“[T]hat the passage of time makes [Allen’s] Lackey
claim stronger is irrelevant to ripeness, because the passage
of time strengthens any Lackey claim.”).
The judgment of the district court is AFFIRMED. We
DISMISS as moot Creech’s motion to stay his execution
while this appeal is pending.
App. 008
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 1 of 13
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
THOMAS EUGENE CREECH,
Case No. 1:23-cv-00463-AKB
Petitioner,
CAPITAL CASE
v.
TIM RICHARDSON, Warden, Idaho
Maximum Security Institution,
ORDER DISMISSING PETITION FOR
LACK OF JURISDICTION
Respondent.
INTRODUCTION
On October 16, 2023, Petitioner Thomas Eugene Creech filed his third Petition for Writ of
Habeas Corpus (Dkt. 1), under 28 U.S.C. § 2254, challenging the constitutionality of his death
sentence. Pending before the Court is his motion to stay and abey consideration of his petition
under Rhines v. Weber, 544 U.S. 269 (2005), until his ongoing state post-conviction action is
concluded. (Dkt. 3). Having carefully reviewed the record, the Court finds oral argument is
unnecessary. See D. Idaho Loc. Civ. R. 9.2(g)(4) (“Motions and petitions will be deemed
submitted, and will be determined, upon the written pleadings, briefs, and record, unless the court,
in its discretion, orders oral argument on any issue, claim, or defense.”). For the reasons discussed
below, the Court concludes that Creech’s Petition for Writ of Habeas Corpus is an unauthorized
successive petition under 28 U.S.C. § 2244(b) and that the Court lacks jurisdiction to grant
Creech’s requested relief. 1
1
Consistent with the Supreme Court’s practice, this Court uses the word “petition”
interchangeably with the word “application,” despite that the applicable statute refers to an
application. See, e.g., Magwood v. Patterson, 561 U.S. 320, 324 n.1 (2010) (noting practice of
using words “petition” and “application” interchangeably).
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 1
App. 009
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 2 of 13
BACKGROUND
In 1981, Creech was serving two life sentences for multiple first-degree murder convictions
when he brutally murdered a fellow inmate. 2 In 1982, an Idaho state court judge in a written
opinion sentenced Creech to death for the inmate’s murder. See State v. Creech (Creech I), 670
P.2d 463, 466 n.1 (Idaho 1983) (discussing sentencing proceedings). On appeal, the Idaho
Supreme Court noted the sentencing judge was required to pronounce Creech’s sentence in open
court in Creech’s presence and remanded for resentencing. Id. On remand, the judge declined to
allow Creech to present new mitigating evidence at the sentencing hearing and sentenced him to
death again. Id.; Creech v. Arave (Creech II), 947 F.2d 873, 881 (1991) (discussing sentencing
judge’s failure to allow new mitigating evidence). On appeal, the Idaho Supreme Court affirmed
Creech’s sentence holding, among other things, that “jury participation in the sentencing is not
constitutionally required.” Creech I, 670 P.2d at 474.
Following his death sentence, Creech embarked on a lengthy, complicated journey of
collaterally attacking his conviction and death sentence in both state and federal courts. In federal
court, Creech has now filed three petitions for habeas corpus relief. Creech filed his first petition
in 1986. After the district court denied that petition, the Ninth Circuit reversed the denial, ruling
Creech was entitled to another resentencing hearing to present “any and all” mitigating evidence.
Creech II, 947 F.2d at 881. The Supreme Court reversed the Ninth Circuit’s decision in part but
did not disturb the ruling that Creech was entitled to another resentencing hearing to present
mitigating evidence. Arave v. Creech (Creech III), 507 U.S. 463, 478-79 (1993). On remand in
1995, the sentencing judge conducted a multi-day sentencing hearing and again imposed the death
penalty. Creech v. Hardison (Creech IV), No. 1:99-cv-00224-BLW, 2010 WL 1338126, at *3 (D.
Idaho March 31, 2010) (discussing resentencing proceedings).
In January 2000, Creech filed his second habeas petition in federal court. 3 Creech IV,
No. 1:99-cv-00224, at Dkt. 17 (Jan. 20, 2000). The district court stayed the case pending the
2
The Idaho Supreme Court has previously set forth in detail the nature and circumstances
of the inmate’s murder. See State v. Creech, 670 P.2d 463, 465 (Idaho 1983) (discussing facts and
affirming judge’s resentencing); see also Arave v. Creech, 507 U.S. 463, 465-66 (1993)
(describing facts).
3
The record occasionally suggests Creech filed his second petition for habeas corpus relief
in 1999. Although Creech initiated his second habeas action in late 1999, he did not actually file
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 2
App. 010
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 3 of 13
resolution of Creech’s state post-conviction proceedings, and in March 2005, Creech filed an
amended second petition in federal court, alleging forty-five claims including that he had a
constitutional right to have a jury determine his sentence. Id. at Dkt. 131, ¶ 355 (alleging claim
40). In support of this claim, Creech cited the Sixth, Eighth, and Fourteenth Amendments and
Ring v. Arizona, 536 U.S. 584, 603-09 (2002), in which the Supreme Court held that, under the
Sixth Amendment, a jury must decide beyond a reasonable doubt any aggravating fact making a
defendant eligible for the death penalty.
Addressing Creech’s March 2005 amended petition, the district court denied some of
Creech’s claims in March 2006, including his claim he had a constitutional right to have a jury
determine his sentence. Creech IV, No. 1:99-cv-00224-BLW, 2006 WL 851113 (Mar. 29, 2006).
In denying that claim, the district court noted the Supreme Court had concluded the holding in
Ring did not retroactively apply to death sentences, such as Creech’s, which were final before Ring
issued. Id. at *2 (citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (rejecting argument that
Ring was either substantive or watershed procedural change in law)). In March 2010, the district
court denied Creech’s remaining claims alleged in his second petition. Creech IV, No. 1:99-cv0224-BLW, 2010 WL 1338126 (Mar. 31, 2010) (denying non-dismissed claims); Creech IV,
No. 1:99-cv-00224-BLW, 2010 WL 2384834 (June 9, 2010) (denying motion to alter or amend
judgment).
Creech appealed the denial of his second petition to the Ninth Circuit. While the appeal
was pending, the Supreme Court decided Martinez v. Ryan, 566 U.S. 1, 9 (2012), which held that
ineffective assistance of post-conviction counsel can excuse a default of an underlying claim for
ineffective assistance of trial counsel. The Ninth Circuit remanded Creech’s case to the district
court to consider Martinez’s application to Creech’s claims, and in January 2016, the district court
concluded Creech failed to satisfy the requirements of Martinez and reaffirmed its previous
dismissal of Creech’s second petition. Creech IV, No. 1:99-cv-00224-BLW, 2016 WL 8605324
(Jan. 29, 2016). After reconsideration of this decision, the district court entered a judgment in
March 2017. See Creech IV, No. 1:99-cv-00224-BLW, 2017 WL 1129938 (Mar. 24, 2017)
(denying reconsideration).
his petition until January 2000. Creech v. Paskett, No. 1:99-cv-00224, at Dkt. 17 (D. Idaho Jan. 20,
2000).
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 3
App. 011
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In February 2023, the Ninth Circuit affirmed the district court’s denial of Creech’s second
petition, and on October 10, the Supreme Court denied Creech’s petition for writ of certiorari.
Creech v. Richardson, 59 F.4th 372 (9th Cir. 2023), cert. denied, No. 23-5039, 2023 WL 6558513
(U.S. Oct. 10, 2023). Two days later, on October 12, an Idaho state district court issued a death
warrant for Creech’s execution. (Dkt. 7-1).
The following day, October 13, 2023, Creech filed a petition for post-conviction relief in
state court, alleging his death sentence violates the cruel and unusual clauses of the United States
and Idaho Constitutions because a judge imposed the sentence without any jury participation.
(Dkt. 2-1 at ¶ 53). On October 16, the state post-conviction court dismissed Creech’s petition as
untimely under Idaho Code § 19-2719. (Dkt. 6 (Notice of Lodging) State’s Lodging R.1, pp. 21015). The state court reasoned that “Creech knew or reasonably should have known before
September 1[, 2023,] of the ostensible basis for the claim asserted in the petition.” (Id. at p. 213).4
On that same day—October 16—Creech filed his third federal habeas petition, which is at
issue in this case. 5 (Dkt. 1). In this petition, Creech alleges an Eighth Amendment evolvingstandards claim. Specifically, he alleges that “[e]volving standards of decency render [his death]
sentence unconstitutional because it is cruel and unusual under the Eighth Amendment to execute
a man whose punishment was determined by a single judge, without a jury.” (Dkt. 1 at ¶ 1).
ANALYSIS
A. Legal Standard for Successive Petition Under § 2244(b)
The Eighth Amendment protects against cruel and unusual punishments and prohibits “not
only barbaric punishments, but also sentences that are disproportionate to the crime committed.”
Solem v. Helm, 463 U.S. 277, 284 (1983). Federal habeas corpus relief under 28 U.S.C. § 2254 is
available to petitioners who show they are held in custody under a state court judgment violating
the United States Constitution, laws, or treaties. See 28 U.S.C. § 2254(a). Petitions for habeas
4
Creech appealed the district court’s denial of his post-conviction petition, and the Idaho
Supreme Court ordered expedited briefing and scheduled oral argument for February 5, 2024.
(Dkt. 14-1).
5
On October 16, 2023, Creech also moved in this case for a stay of his execution. (Dkt. 2).
The state district court, however, stayed Creech’s execution on October 19, pending a
commutation hearing before the Idaho Commission of Pardons and Parole, which is presently
scheduled for January 19, 2024. (Dkt. 7-1). As a result, Creech has withdrawn his application in
this case for a stay of his execution. (Dkt. 10).
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 4
App. 012
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corpus relief, including Creech’s petition in this case, are subject to the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See United States v. Villa-Gonzalez, 208 F.3d
1160, 1163-64 (9th Cir. 2000) (holding AEDPA’s provisions governing second or successive
petition apply to new petition filed after AEDPA’s enactment, even if original petition was filed
before its enactment).
AEDPA places stringent restrictions on federal habeas corpus relief, including prohibiting
an inmate from filing more than one petition, except in limited circumstances. Section 2244(b) of
AEDPA establishes the procedural and substantive requirements which govern “second or
successive” habeas petitions. See generally 28 U.S.C. § 2244(b). Section 2244(b) acts as a
“gatekeeper” to prohibit a petitioner from filing a “second or successive” petition in the district
court without first obtaining an order from the Ninth Circuit authorizing the district court to
consider the petition. Allen v. Ornoski, 435 F.3d 946, 955-56 (9th Cir. 2006). Specifically, the
statute provides that “before a second or successive application . . . is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court “may not, in the absence
of proper authorization from the court of appeals, consider a second or successive habeas
application.” Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (internal
quotation marks omitted). The Ninth Circuit’s authorization is jurisdictional—if a petition is a
second or successive petition under § 2244, a district court has no authority to consider the
petition’s merits absent prior authorization. Id.
A petition, however, is not necessarily successive within the meaning of § 2244(b) simply
because it is second-in-time. Rather, a “second or successive” petition is a legal term of art. Allen,
435 F.3d at 956. Although AEDPA does not define the phrase “second or successive,” the Ninth
Circuit and other courts have interpreted the concept as a derivative of the abuse-of-the-writ
doctrine developed in pre-AEDPA cases. Id. “An abuse of the writ occurs when a petitioner raises
a habeas claim that could have been raised in an earlier petition were it not for inexcusable
neglect.” Id. (quotations omitted).
The doctrine concentrates on a petitioner’s acts to determine whether he has “a legitimate
excuse for failing to raise the claim at the appropriate time.” Id. (quoting McCleskey v. Zant, 499
U.S. 467, 490 (1991)). “A petition for review of a new claim that could have been raised earlier
may be treated as the functional equivalent of a second or successive petition for a writ of habeas
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 5
App. 013
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 6 of 13
corpus.” Allen, 435 F.3d at 957; see also Cooper, 274 F.3d at 1273 (“Generally, a new petition is
‘second or successive’ if it raises claims that were or could have been adjudicated on their merits
in an earlier petition.”). If the district court determines a petition is “second or successive” within
the meaning of § 2244(b), then it lacks jurisdiction to address the petition’s merits. Cooper, 274
F.3d at 1274.
Creech urges the Court to rule on his motion for a stay of these proceedings under Rhines
without first considering whether his present petition is successive. (Dkt. 14 at pp. 2-3). In
support, he argues that whether his petition is successive is not a factor for consideration under
Rhines.
Whether Creech’s petition is “second or successive” under § 2244, however, is
determinative of the Court’s jurisdiction. If the Court lacks jurisdiction, it cannot address the
merits of Creech’s Rhines motion. Accordingly, the Court considers whether Creech’s petition is
successive under § 2244(b) to determine whether it has jurisdiction to consider Creech’s present
petition without Ninth Circuit authorization, and it concludes it does not have jurisdiction.
B. Creech’s Petition is Successive Under § 2244(b)
In response to Creech’s Rhines motion, the State asserts this Court lacks jurisdiction
because Creech’s present petition is “second or successive” under § 2244, and he did not obtain
the Ninth Circuit’s authorization for this Court to consider the petition. In reply, Creech cites to
and relies, in part, on his arguments in support of his motion to stay his execution. (See generally
Dkt. 3 (citing Dkt. 2)). In that motion, Creech acknowledges his “present habeas petition is not
his first one” but asserts the “petition should not be regarded as successive.” (Dkt. 2 at pp. 3, 5).
In support, Creech argues, for example, that “the claim did not exist until the information
supporting the theory had come into existence” (id. at p. 3); “existing precedent has not given him
clear guidance as to when his theory became viable” (id.); and the claim is “based on the coming
to fruition of a number of trends over the long period of time.” (Id. at p. 5). 6
Creech does not directly assert his evolving-standards claim was not ripe for review before
he filed his present petition. Indeed, he never uses the terms “ripe,” “unripe,” or “ripeness” to
describe his evolving-standards claim. Nevertheless, the case law on which Creech relies and the
nature of his arguments—in both his motion for a stay of his execution and his Rhines motion—
6
Creech makes similar arguments in support of his request to stay this case under Rhines.
(See generally Dkt. 3-1). The Court also considers those arguments in resolving the jurisdictional
question of whether Creech’s petition is “second or successive” under 28 U.S.C. § 2244(b).
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 6
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essentially assert his evolving-standards claim was not ripe before he filed his third petition. If a
claim was previously not ripe, that fact can be a plausible basis on which to conclude a petition is
not successive under § 2244(b). See Brown v. Atchley, 76 F.4th 862, 864 (9th Cir. 2023) (noting
petition asserting claim not ripe for adjudication when prior habeas petition filed should not be
dismissed as successive under § 2244(b)); United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir.
2011) (same).
Creech only directly addresses the State’s argument that his petition is successive under
§ 2244(b) briefly in his reply brief in support of his Rhines motion. (See Dkt. 14 at pp. 3-4 (“The
State’s successiveness argument is misplaced.”)). In that reply, he asserts that “a habeas petition
is not successive when changed circumstances render a sentence newly unconstitutional” and that
“the key question is whether the circumstances in [Creech’s] case have in fact changed in the way
demanded by successiveness law.” 7 (Id.). Creech, however, provides no specific factual analysis
or citation to authority in support of these broad assertions in reply to the State’s successiveness
argument. Regardless, the Court considers Creech’s arguments and citation to authorities in both
his submissions in support of his motion to stay his execution and his Rhines motion, as they bear
on his implicit assertion he could not have asserted his evolving-standards claim previously
because it was not ripe. In these submissions, Creech offers three explanations why his evolvingstandards claim was not ripe before he filed his present petition.
1. Creech’s Reliance on Enmund is misplaced
First, Creech relies on Enmund v. Florida, 458 U.S. 782 (1982), and attempts to compare
the data he alleges in support of his evolving-standards claim in this case to that which the Supreme
Court analyzed in Enmund to affirm such a claim. (Dkt. 2 at pp. 3-5; Dkt. 3-1 at pp. 3-4). In
Creech also argues the State “does not explain when—if not now—the evolving-standards
claim ought to have been pursued.” (Dkt. 14 at p. 4). The burden of establishing ripeness,
however, “rests on the party asserting the claim.” Colwell v. HHS, 558 F.3d 1112, 1121 (9th Cir.
2009). Creech further argues that he has not previously alleged an evolving-standards claim
challenging his sentence and that the State does not assert otherwise. (Dkt. 14 at p. 3). That Creech
has not previously alleged such a claim, however, only saves the claim from dismissal under
§ 2244(b)(1), which provides that “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(b)(1) (emphasis added). Creech’s argument that he has not previously alleged an
evolving-standards claim does not answer whether he could and should have alleged it in a prior
petition. See 28 U.S.C. § 2244(b)(2) (addressing limited circumstances in which new claim may
be raised in successive petition).
7
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 7
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Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 8 of 13
Enmund, the Court addressed “whether death is a valid penalty under the Eighth and Fourteenth
Amendments for one who neither took life, attempted to take life, nor intended to take life.”
Enmund, 458 U.S. at 787. In other words, it considered whether the Eighth Amendment permits
a defendant’s execution for felony murder. Id. at 785-86 (discussing felony-murder rule).
In addressing this issue, the Supreme Court noted the Eighth Amendment “is directed, in
part, against all punishments which by their excessive length or severity are greatly
disproportioned to the offenses charged.” Id. at 788 (quotation omitted). It then considered a
survey of state statutes, juries’ sentencing decisions, and the national death-row population in the
context of death sentences for felony-murder convictions.
Id. at 789-95.
Based on this
information, the Court concluded that “we are not aware of a single person convicted of felony
murder over the past quarter century who did not intend the death of the victim, who has been
executed” and that “only three persons in that category are presently sentenced to death.” Id. at
796. Relying in part on this data, the Court held the Eighth Amendment prohibits the imposition
of the death penalty for felony murder. Id. at 797 (“Although the judgments of legislatures, juries
and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth
Amendment permits the imposition of the death penalty.”).
In his pending motions, Creech attempts to apply the analysis in Enmund (or one similar
to it) to his evolving-standards claim. Relying in Enmund, he argues:
If one goes back twenty-eight years from today’s date, as in Enmund, there have
been 1,261 executions nationwide. Of those, forty-two took place in Arizona,
Idaho, Montana, or Nebraska and appear to have involved judge-sentenced inmates.
That would constitute 3.3% of the overall executions. However, if Arizona is
removed from the list, there would then be seven judge-sentenced executions in the
last twenty-eight years, or .6%. In other words, if Enmund’s calculation is the north
star, then the question of whether Mr. Creech’s claim is meritorious now might
depend on whether Arizona is or is not counted. Precedent does not unequivocally
provide an answer to that question.
(Dkt. 2 at pp. 4-5 (footnote omitted); Dkt. 3-1 at p. 4 (footnote omitted)).
Creech premises this argument on the fact that Arizona imposed a moratorium on
executions in January 2023. The gist of Creech’s argument appears to be that excluding Arizona’s
judge-imposed death sentences (based on its moratorium) from a mathematical calculation results
in his evolving-standards claim becoming ripe for review in November 2023. (Dkt. 3-1 at p. 3)
(discussing Arizona moratorium and arguing “[g]iven the moratorium in Arizona, [Creech] has a
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 8
App. 016
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 9 of 13
colorable argument that the state counts in his favor in the evolving-standards calculus”).
According to Creech, because of the Arizona moratorium in January 2023, “November 2023 [was]
the first time [he could] rightly say that it had been a full year without a judge-sentenced
execution.” (Id. at p. 5). Additionally, Creech also alleges other data supports his claim including
“[e]xecution data,” “death-row populations,” “legislative decisions,” and “sentencing decisions.”
(Dkt. 3-1 pp. 5, 7-8).
The Court is not persuaded either Enmund or any other authorities addressing evolvingstandards claims precluded Creech from previously seeking relief from his death sentence under
an evolving standards of decency theory or otherwise counseled that he should delay pursuing such
a claim until a death warrant issued for his execution. Contrary to Creech’s assertion that “existing
precedent has not given him clear guidance as to when his theory became viable” (Dkt. 2 at p. 3),
the Supreme Court acknowledged, as early as 1958, that the Eighth Amendment’s meaning evolves
with the “progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). By 1976, the
Court had established an analysis to evaluate the Eighth Amendment under evolving standards of
decency by considering “contemporary values concerning the infliction of a challenged sanction”
based on “objective indicia [reflecting] the public attitude toward [that] sanction.” Gregg v.
Georgia, 428 U.S. 153, 173 (1976). Then in 1982, the Court in Enmund applied this analysis
considering state statutes, jury sentencings, and death-row statistics. 458 U.S. at 789-95.
Thereafter, the Supreme Court has repeatedly held that the evolving standards under the
Eighth Amendment prohibit a particular sanction including: (1) imposing a mandatory fixed-life
sentence for juveniles who commit homicide, Miller v. Alabama, 567 U.S. 460, 479 (2012);
(2) imposing a fixed-life sentence for juveniles who commit non-homicide crimes, Graham v.
Florida, 560 U.S. 48, 75 (2010), as modified (July 6, 2010); (3) executing an individual for a nonhomicide crime, Kennedy v. Louisiana, 554 U.S. 407, 413, as modified (Oct. 1, 2008), opinion
modified on denial of reh’g, 554 U.S. 945 (2008); (4) executing an individual under the age of
eighteen at the time of the offense, Roper v. Simmons, 543 U.S. 551, 575 (2005); (5) executing an
individual with an intellectual disability, Atkins v. Virginia, 536 U.S. 304, 321 (2002); and (6)
executing an individual under the age of sixteen at the time of the offense. Thompson v. Oklahoma,
487 U.S. 815 (1988).
Based on these authorities, Creech should have been aware of the availability of an Eighth
Amendment evolving-standards claim when he filed his second petition for habeas corpus relief
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 9
App. 017
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 10 of 13
in January 2000—or at least at some point during the pendency of that second petition. 8 Although
Creech asserts that a conclusion that his present petition is successive “would imply [his evolvingstandards claim] must have been brought at the random moment in time when he happened to
litigate his initial habeas proceedings,” (Dkt. 2 at p. 5), this assertion is not accurate. Creech’s
second petition was pending before the district court for numerous years including from January
2000 through March 2010 and, again, on remand from June 2012 through March 2017. Creech
could have moved to amend his second petition to allege an evolving-standards claim at any time
during these timeframes once he had a reasonable quantity of data on which to premise it. See
Allen, 435 F.3d at 958 (noting petitioner could have sought amendment of his petition “at any time
during” the pendency of his habeas petition).
Although Creech’s evolving-standards claim may have “evolved” more since March 2017
when the district court finally entered judgment on Creech’s second petition, that fact does not
establish Creech’s claim was not ripe during the pendency of his second petition. Cf. id. (noting
although “the passage of time makes [a] Lackey claim stronger,” it is “irrelevant to ripeness”). 9
Notably, neither Enmund nor any other authority of which the Court is aware required Creech to
be able to allege a particular percentage of judge-sentenced executions in the last twenty-eight
years (or some other specific timeframe) or that a “full year” had passed “without a judgesentenced execution” to establish his evolving-standard claim was ripe for review. (See Dkt. 3-1
8
Analysis of whether Creech’s present petition for habeas corpus relief is “second or
successive” is based on his second petition filed in January 2000. Creech’s first petition filed in
1986 is not relevant because the state court judge resentenced Creech and entered a new judgment,
on remand after Creech was granted relief under the first petition. A new state court judgment on
resentencing may constitute a new judgment and a habeas petition challenging that new judgment
is not second or successive under § 2244. See Turner v. Baker, 912 F.3d 1236, 1237 (9th Cir.
2019) (ruling amended judgment awarding credit for time served constitutes new judgment for
purposes of habeas relief); see also Magwood v. Patterson, 561 U.S. 320, 331 (2010) (a new
judgment entered after resentencing constituted new judgment to which second-or-successive bar
did not apply). To the extent Creech relies on Turner to argue his present petition is “the same as
an initial one,” (see, e.g., Dkt. 2 at p. 3), he is incorrect. Turner only applies in cases where a new
judgment is entered following a grant of habeas relief, which did not occur after Creech’s second
January 2000 petition. Rather, the district court denied that petition and that denial has been
affirmed. Creech v. Richardson, 59 F.4th 372 (2023) cert. denied, 144 S. Ct. 291 (Oct. 10, 2023).
9
A “Lackey claim” is one which asserts a violation of the Eighth Amendment based on a
long tenure on death row. Allen v. Ornoski, 435 F.3d 946, 948 (9th Cir. 2006) (citing Lackey v.
Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari)).
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 10
App. 018
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 11 of 13
at pp. 4-5 (asserting these facts)). While perhaps insightful, these allegations are not essential to
Creech alleging a ripe evolving-standards claim, and Creech should have been aware of his
evolving-standards claim before his second petition was resolved if not sooner.
2. Creech’s Reliance on Panetti and Martinez-Villareal is also misplaced
In addition to suggesting his evolving-standards claim was not previously ripe under
Enmund and related cases, Creech relies on Panetti v. Quarterman, 551 U.S. 930 (2007), and
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), both of which conclude a subsequent habeas
petition raising a Ford claim 10 is not “second or successive” under § 2244. In Martinez-Villareal,
the petitioner had raised a Ford claim in a previous habeas petition. Because an execution date
had not yet been set, the district court dismissed the claim as unripe. Martinez-Villareal, 523 U.S.
at 640. Later, when an execution date was set—and his Ford claim was “unquestionably ripe”—
the petitioner filed a new petition reasserting his Ford claim. Martinez-Villareal, 523 U.S. at 643.
Rejecting the state’s argument that the new petition was successive, the Supreme Court in
Martinez-Villareal explained the petitioner had a right “to an adjudication of all of the claims
presented in his earlier, undoubtedly reviewable, application for federal habeas relief,” even
though at the time of the filing of the first petition, the Ford claim was not ripe. Id. The Court
construed the two petitions as a single application for habeas relief, thus rendering § 2244(b)(2)
inapplicable, stating “[t]here was only one application for habeas relief, and the District Court
ruled (or should have ruled) on each claim at the time it became ripe. Martinez-Villareal, 523 U.S.
at 643. Because the petitioner’s Ford claim was not ripe when he first raised it, the claim was not
successive within the meaning of AEDPA.
The Supreme Court addressed a different but related question in Panetti. In that case, the
petitioner had previously filed a federal habeas petition but had not alleged a Ford claim. Panetti,
551 U.S. at 937. When the petitioner later faced execution, he filed a new petition asserting a Ford
claim for the first time. Id. at 938. The Court addressed the timing issue left open in MartinezVillareal—i.e., “where a prisoner raises a Ford claim for the first time in a petition filed after the
10
In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court ruled that “the Eighth
Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane,”
id. at 410, and held that a petitioner is entitled under 28 U.S.C. § 2254(d)(2) to an evidentiary
hearing on the question of his competence to be executed. Id. at 418. Thus, a “Ford claim” is
shorthand for a petitioner’s claim that the Eighth Amendment prohibits his execution because he
is mentally incompetent.
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 11
App. 019
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 12 of 13
federal courts have already rejected the prisoner’s initial habeas application.” Panetti, 551 U.S. at
945 (internal quotation marks omitted).
The Supreme Court recognized that Ford claims, “as a general matter, are not ripe until
after the time has run to file a first federal habeas petition.” Id. at 943. As a result, the Court noted
that “a prisoner would be faced with two options”—either to forgo raising a Ford claim in his first
petition or to raise it prematurely in that petition—and that “conscientious defense attorneys would
be obliged to file unripe (and, in many cases, meritless) Ford claims.” Id. To avoid this result,
the Court concluded that “Congress did not intend the provisions of AEDPA addressing ‘second
or successive’ petitions to govern a filing in the unusual posture [where] a § 2254 application
raising a Ford-based incompetency claim filed as soon as that claim is ripe” and that “the statutory
bar on ‘second or successive’ applications does not apply to a Ford claim brought in an application
filed when the claim is first ripe.” Id. at 947.
The Court is not persuaded Creech’s Eighth Amendment evolving-standards claim is
analogous to a Ford claim for purposes of evaluating successiveness under § 2244(b). A Ford
claim challenging a petitioner’s competency to be executed requires, by its very nature, the
determination of his competency at the time of (or near) the execution date. Martinez-Villareal,
523 U.S. at 644-45 (noting petitioner’s competency prior to that time). By contrast, an Eighth
Amendment evolving-standards claim turns on data showing the “contemporary values concerning
the infliction of a challenged sanction” based on “objective indicia [reflecting] the public attitude
toward [that] sanction.” Gregg, 428 U.S. at 173. Unlike determining a petitioner’s mental
condition at the time of his execution, nothing precludes the Court’s consideration—prior to the
State’s scheduling of Creech’s execution—of the objective evidence which has developed over
time of the nation’s values regarding judge-imposed death sentences.
Although Creech’s
evolving-standards claim may have improved over time, that fact alone does not make the claim
unripe before the State scheduled his execution on October 12, 2023. See Allen, 435 F.3d at 958
(noting that claim is not unripe because it may improve with passage of time).
3. Creech’s Reliance on the Eighth Amendment’s Plain Language is Misplaced.
Finally, Creech makes the argument that his Eighth Amendment evolving-standards claim
was not ripe until the state court issued the death warrant based on the Eighth Amendment’s use
of the term “inflicted.” Specifically, Creech asserts that “the Eighth Amendment prohibits the
‘infliction’ of cruel and unusual punishments”; “[t]he infliction of punishment is distinct from its
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 12
App. 020
Case 1:23-cv-00463-AKB Document 15 Filed 01/12/24 Page 13 of 13
imposition”; and a death sentence is not inflicted until the death warrant issues. (Dkt. 3-1 at p. 6).
Based on this reasoning, Creech argues it was “appropriate” for him to raise the evolving-standards
claim only after the State scheduled his execution. (Id.). But a rule based on the Eighth
Amendment’s plain language that a death penalty challenge is only ripe after the execution is
scheduled would be contrary to a significant number of authorities addressing challenges to death
sentences long before the scheduling of an execution.
Based on the foregoing, the Court rejects Creech’s assertion that his evolving-standards
claim was not ripe until the state court issued the death warrant for his execution. Rather, Creech’s
present petition raising an Eighth Amendment evolving-standards claim is “second or successive”
within the meaning of § 2244(b). Creech did not obtain the Ninth Circuit’s authorization for this
Court to consider the petition.
Accordingly, the Court must dismiss this case for lack of
jurisdiction.
ORDER
IT IS ORDERED:
1.
Creech’s Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED for lack of
jurisdiction as an unauthorized second or successive petition under 28 U.S.C.
§ 2244(b).
2.
Creech’s Motion to Stay and Abey under Rhines v. Weber (Dkt. 3) is DENIED as
moot.
3.
Under District of Idaho Local Civil Rule 9.2(f), the Clerk of Court will immediately
provide notice of this decision to counsel for Creech, the Idaho Attorney General,
the warden of the Idaho Maximum Security Institution, and the Clerk of the Idaho
Supreme Court.
4.
The Court GRANTS a certificate of appealability on the question whether Creech’s
instant petition is second or successive for purposes of 28 U.S.C. § 2244(b). See
Rule 11 of the Rules Governing Section 2254 Cases.
January 12, 2024
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION - 13
App. 021
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
App. 022
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
App. 023
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
App. 024
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
App. 025
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
App. 026
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
App. 027
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
App. 028
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
App. 029
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
App. 030
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
App. 031
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
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App. 032
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.
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App. 033
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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App. 034
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.
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App. 035
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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App. 036
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
App. 037
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
App. 038
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
App. 039
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
PETITION FOR WRIT OF CERTIORARI – Page 8
App. 040
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
App. 041
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.
PETITION FOR WRIT OF CERTIORARI – Page 10
App. 042
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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App. 043
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
PETITION FOR WRIT OF CERTIORARI – Page 12
App. 044
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
PETITION FOR WRIT OF CERTIORARI – Page 13
App. 045
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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App. 046
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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App. 047
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).
PETITION FOR WRIT OF CERTIORARI – Page 16
App. 048
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
PETITION FOR WRIT OF CERTIORARI – Page 17
App. 049
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
PETITION FOR WRIT OF CERTIORARI – Page 18
App. 050
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.
PETITION FOR WRIT OF CERTIORARI – Page 19
App. 051
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
PETITION FOR WRIT OF CERTIORARI – Page 20
App. 052
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 1 of 12
Nicole Owens
Executive Director
Deborah A. Czuba, ID Bar No. 9648
Jonah J. Horwitz, ID Bar No. 10494
Christopher M. Sanchez, ID Bar No. 12070
Mary E. Spears, IN Bar No. 27353-49
Assistant Federal Defenders
Federal Defender Services of Idaho
Capital Habeas Unit
702 W. Idaho, Suite 900
Boise, Idaho 83702
Telephone: (208) 331-5530
Facsimile: (208) 331-5559
ECF: Deborah_A_Czuba@fd.org
Jonah_Horwitz@fd.org
Christopher_M_Sanchez@fd.org
Mary_Spears@fd.org
Attorneys for Petitioner
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
THOMAS EUGENE CREECH
Petitioner,
v.
TIM RICHARDSON,
Warden, Idaho Maximum Security
Institution,
Respondent.
___________________________________
1.
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Case No. 1:23-cv-463
CAPITAL CASE
PETITION FOR WRIT OF
HABEAS CORPUS
Pursuant to 28 U.S.C. § 2254, Petitioner Thomas Eugene Creech seeks
the writ of habeas corpus to relieve him from his unconstitutional death sentence.
Evolving standards of decency render Mr. Creech’s sentence unconstitutional
because it is cruel and unusual under the Eighth Amendment to execute a man
Petition for Habeas Corpus – 1
App. 053
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 2 of 12
whose punishment was determined by a single judge, without a jury. No state in
the country other than Idaho is attempting to carry out these anachronistic death
sentences.
I.
Procedural Background
2.
Mr. Creech is an indigent prisoner under sentence of death.
3.
He is currently confined at Idaho Maximum Security Institution
(“IMSI”) in Kuna, Idaho, as Prisoner Number 14984.
4.
Tim Richardson is the Warden of IMSI and therefore has custody over
Mr. Creech.
5.
Mr. Creech was convicted of first-degree murder in Ada County
District Court in case number 10252.
6.
He was originally sentenced to death on January 25, 1982.
7.
In 1983, the Idaho Supreme Court affirmed the judgment and
conviction.
8.
The grounds asserted in those proceedings are described in State v.
Creech, 670 P.2d 463 (Idaho 1983).
9.
In the same opinion, the Idaho Supreme Court rejected Mr. Creech’s
argument that he was entitled to a jury at his sentencing under the Sixth
Amendment. See Creech, 670 P.2d at 474.
10.
Relief on a subsequent post-conviction petition was denied by the
Idaho Supreme Court on June 20, 1985. See State v. Creech, 710 P.2d 502 (Idaho
1985).
Petition for Habeas Corpus – 2
App. 054
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 3 of 12
11.
The issues raised in those proceedings are summarized in the Idaho
Supreme Court’s opinion.
12.
On March 27, 1991, the Ninth Circuit granted Mr. Creech habeas relief
with respect to his death sentence. See Creech v. Arave, 947 F.2d 873 (9th Cir.
1991).
13.
The issues raised in those proceedings are summarized in the Ninth
Circuit’s opinion.
14.
In the same opinion, the Ninth Circuit rejected Mr. Creech’s argument
that he was entitled under the Sixth Amendment to the participation of a jury at
his sentencing. See Creech, 947 F.2d at 16.
15.
The Supreme Court reversed the Ninth Circuit’s judgment in part on
March 30, 1993, on claims not relevant now, but left the grant of relief in place. See
Arave v. Creech, 507 U.S. 463 (1993).
16.
As a result of the federal rulings, a new penalty-phase proceeding was
held, and a new death sentence was imposed by Judge Newhouse on April 17, 1995.
17.
On August 19, 1998, the Idaho Supreme Court upheld the death
sentence and affirmed the denial of post-conviction relief. See State v. Creech, 966
P.2d 1 (Idaho 1998).
18.
The issues raised in those proceedings are summarized in the Idaho
Supreme Court’s opinion.
Petition for Habeas Corpus – 3
App. 055
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 4 of 12
19.
Relief on a subsequent petition for post-conviction relief was denied by
the Idaho Supreme Court on June 6, 2002. See Creech v. State, 51 P.3d 387 (Idaho
2002).
20.
The issues raised in those proceedings are summarized in the Idaho
Supreme Court’s opinion.
21.
On August 2, 2002, Mr. Creech filed in Ada County District Court a
petition for post-conviction relief combined with a motion to reduce illegal sentence
under Idaho Criminal Rule 35.
22.
The petition received case number SPOT-200712D, later converted to
CV-PC-2002-22017.
23.
The Rule 35 motion was filed in the underlying criminal case number.
24.
Henceforth, the hybrid proceedings will be referred to as “the Rule 35
25.
In the Rule 35 case, Mr. Creech alleged that his death sentence was
case.”
unconstitutional under the Sixth Amendment and Idaho’s cognate constitutional
protections for the right to a jury trial, all as a result of Ring v. Arizona, 536 U.S.
584 (2002).
26.
On April 25, 2002, the Ada County District Court denied relief in the
Rule 35 case.
27.
The Idaho Supreme Court dismissed the ensuing appeal on December
23, 2005.
Petition for Habeas Corpus – 4
App. 056
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 5 of 12
28.
Although Mr. Creech referred in passing to the Eighth Amendment in
his Rule 35 motion and post-conviction petition, he did not make an argument there
about the evolving standards of decency.
29.
The district court did not analyze the Eighth Amendment in its order
denying relief in the Rule 35 case.
30.
Even if Mr. Creech had made out an evolving-standards argument in
the Rule 35 case in 2003, the vast majority of the data presented below did not exist
at that time.
31.
As set forth below, it is the current state of the data that makes Mr.
Creech’s claim meritorious.
32.
The Idaho Supreme Court dismissed Mr. Creech’s appeal from the
district judge’s ruling in the Rule 35 case in a one-page unpublished decision issued
December 23, 2005.
33.
On June 30, 2022, Mr. Creech filed a post-conviction petition in Ada
County District Court, which was assigned case number CV-01-22-9424.
34.
In that petition, Mr. Creech alleged that his right to ineffective
assistance of counsel was violated at his guilty-plea proceedings and at his
resentencing, and that the claims were appropriately reviewed in light of the U.S.
Supreme Court’s recent decision in Shinn v. Ramirez, 142 S. Ct. 1718 (2022).
35.
The district court dismissed the petition as untimely under Idaho Code
§ 19-2719.
Petition for Habeas Corpus – 5
App. 057
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 6 of 12
36.
Mr. Creech currently has pending an appeal from that order in the
Idaho Supreme Court in case number 50336.
37.
After Mr. Creech’s resentencing in 1995, he initiated a new federal
habeas proceeding in this Court.
38.
The case was assigned number 1:99-cv-224.
39.
In the fortieth ground for relief in the operative habeas petition (the
second amended iteration, filed in March 2005), Mr. Creech cited Ring and alleged
that his death sentence violated his rights under the Sixth, Eighth, and Fourteenth
Amendments to have a jury determine his punishment.
40.
The only factual allegation unique to the claim was that “[th]e
statutory scheme in effect in Idaho is constitutionally significantly different from
the sentencing scheme in effect in Arizona found not to be retroactive . . . in” Schriro
v. Summerlin, 542 U.S. 348 (2004).
41.
The forty-first ground for relief lodged a similar attack on judge-
findings with respect to mitigation.
42.
The forty-second ground for relief lodged a similar attack on judge-
findings with respect to the weighing process.
43.
Mr. Creech did not refer to the evolving standards of decency in Claims
40–42 or present any data about death-row populations, executions, etc.
44.
The State moved to dismiss Claims 40–42 on the basis that Ring was
not retroactive.
Petition for Habeas Corpus – 6
App. 058
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 7 of 12
45.
In Mr. Creech’s response to the motion to dismiss with respect to
Claims 40–42, he did not refer to the evolving standards of decency in Claims 40–42
or present any data about death-row populations, executions, etc.
46.
In an order dated March 29, 2006, this Court dismissed Claims 40–42
on the basis that Ring was not retroactive.
47.
Relief on the petition as a whole was later denied by the district court
and then the Ninth Circuit in Creech v. Richardson. 59 F.4th 372 (9th Cir. 2023).
48.
The other issues raised on appeal in those proceedings are summarized
in the Ninth Circuit opinion.
49.
On October 10, 2023, the Supreme Court denied certiorari. See Creech
v. Richardson, --- S. Ct. ----, 2023 WL 6558513 (2023).
50.
Mr. Creech does not believe that he has in any of the proceedings
above alleged that judge-sentencing in capital cases violates the Eighth Amendment
under the evolving standards of decency based on data about death-row
populations, execution rates, etc.
51.
On October 13, 2023, Mr. Creech filed a petition for post-conviction
relief in Ada County District Court, which received case number CV01-23-16641,
alleging that judge-sentencing in capital cases violates the Eighth Amendment
under the evolving standards of decency based on data about death-row
populations, execution rates, etc.
52.
That petition remains pending.
Petition for Habeas Corpus – 7
App. 059
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 8 of 12
II.
First Ground for Relief: Mr. Creech’s death sentence violates the
Eighth Amendment because it was imposed by a judge and not a
jury.
53.
Mr. Creech’s death sentence violates the Eighth Amendment under the
evolving standards of decency because it was imposed by a judge sitting alone
without any participation by a jury. See U.S. Const., Am. VIII, XIV; Roper v.
Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002); Coker v.
Georgia, 433 U.S. 584 (1977).
Supporting Facts:
54.
Mr. Creech’s current death sentence was imposed by Judge Newhouse
on April 17, 1995.
55.
No jury was involved in the determination of death as the punishment.
56.
Evolving standards of decency have rendered it cruel and unusual for a
defendant to be sentenced to death in a proceeding that involves no jury.
57.
In 2002, the Supreme Court found that it violated the Sixth
Amendment right to a jury trial for a defendant to be sentenced to death by a judge
“sitting alone.” Ring, 536 U.S. at 588–89.
58.
The Ring Court identified five states that allowed for such sentencings:
Arizona, Colorado, Idaho, Montana, and Nebraska. See id. at 608 n.6.
59.
The number of inmates on death rows supports Mr. Creech’s claim.
60.
Arizona now has a moratorium on executions.
61.
Thus, Arizona counts in Mr. Creech’s favor in the evolving-standards
calculus.
Petition for Habeas Corpus – 8
App. 060
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 9 of 12
62.
Similarly, there is no one on death row in Colorado because the state
abolished capital punishment in 2020 and the governor then commuted the three
existing death sentences to life in prison.
63.
Colorado therefore falls on Mr. Creech’s side of the scale as well.
64.
Accordingly, the only states that matter for evolving-standards
purposes are Idaho, Montana, and Nebraska.
65.
Those states only have a total of sixteen inmates on death row who
were sentenced by judges alone.
66.
If Arizona is included in the count, the number still favors Mr. Creech.
67.
Then there would be forty-nine judge-sentenced inmates.
68.
There are roughly 2,333 inmates on death row in America.
69.
Execution rates also favor Mr. Creech’s claim.
70.
Idaho, Montana, and Nebraska have collectively executed only a single
inmate in the last ten years out of the 227 executions that have taken place
nationwide.
71.
In the last fifteen years, the three states have executed only three
inmates out of the 453 executions that have taken place nationwide.
72.
In the last twenty years, the three states have executed only four
inmates out of the 701 executions that have taken place nationwide.
73.
In the last twenty-five years, the three states have executed only four
inmates out of the 1,095 executions that have taken place nationwide.
Petition for Habeas Corpus – 9
App. 061
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 10 of 12
74.
In the last thirty years, the three states have executed only ten
inmates out of the 1,356 executions that have taken place nationwide.
75.
If Arizona is included in the count, the execution numbers still support
Mr. Creech’s claim.
76.
Arizona has executed four judge-sentenced inmates in the last ten
77.
Arizona has executed sixteen judge-sentenced inmates in the last
years.
fifteen years.
78.
Arizona has executed seventeen judge-sentenced inmates in the last
twenty years.
79.
Arizona has executed twenty-seven judge-sentenced inmates in the last
twenty-five years.
80.
Arizona has executed thirty-six judge-sentenced inmates in the last
thirty years.
81.
Statutory developments also support Mr. Creech’s claim.
82.
At the time of Ring, only five states had statutes in place that allowed
for judge sentencing in capital cases, even though the Supreme Court had
previously found such laws to be constitutional.
83.
Several states have reduced the role of judges at capital sentencings
relative to juries, including Alabama, Delaware, and Indiana.
84.
Sentencing decisions also support Mr. Creech’s claim.
Petition for Habeas Corpus – 10
App. 062
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 11 of 12
85.
Judicial override was used 125 times in the 1980s, 74 times in the
1990s, and then only 27 times between 2000 and 2013.
86.
That practice has been geographically isolated, with twenty-six of the
twenty-seven judicial overrides that occurred between 2000 and 2013 occurring in
Alabama.
87.
General trends in the death penalty also support Mr. Creech’s claim.
88.
Twenty-two states have abolished the death penalty.
89.
Three states have moratoria on executions.
90.
Eleven states authorize the death penalty but have not executed
anyone in the last ten years.
91.
International developments also support Mr. Creech’s claim.
92.
112 countries have abolished the death penalty.
93.
90% of countries did not carry out executions in 2022.
94.
In 2002, 90% of the executions in the world took place in Egypt, Iran,
and Saudi Arabia.
95.
Finally, the substantive nature of the Eighth Amendment supports Mr.
Creech’s claim.
96.
That is because, under the Eighth Amendment, it is “the jury’s task of
expressing the conscience of the community on the ultimate question of life or
death.” McCleskey v. Kemp, 481 U.S. 279, 309 (1987).
Petition for Habeas Corpus – 11
App. 063
Case 1:23-cv-00463 Document 1 Filed 10/16/23 Page 12 of 12
Exhaustion of Claim:
97.
The claim alleged here is currently unexhausted and is pending in
ongoing state post-conviction proceedings.
III.
Relief Sought
98.
Based on the foregoing, Mr. Creech respectfully prays that the Court
grant the writ of habeas corpus with respect to his death sentence.
Respectfully submitted this 16th day of October 2023.
/s/ Jonah J. Horwitz
Jonah J. Horwitz
Attorney for Petitioner
IV.
Verification
I, Jonah J. Horwitz, authorized by Thomas Eugene Creech, Petitioner in this
case, declare under penalty of perjury that the foregoing is true and correct to the
best of my understanding, knowledge, and ability.
/s/ Jonah J. Horwitz_____
Jonah J. Horwitz
CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of October 2023, I served the foregoing
document on all interested parties by emailing it to:
L. LaMont Anderson
Lamont.Anderson@ag.idaho.gov
Petition for Habeas Corpus – 12
/s/ Jonah J. Horwitz
Jonah J. Horwitz
App. 064
Case 1:23-cv-00463
Document
1-1 SHEET
Filed 10/16/23 Page 1 of 1
CIVIL
COVER
JS 44 (Rev. 04/21)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Thomas Eugene Creech
Tim Richardson
(b) County of Residence of First Listed Plaintiff
Ada
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
Jonah J. Horwitz, FDSI, CHU, 702 W. Idaho St., Ste. 900,
Boise, ID 83702 208-331-5530
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
1
U.S. Government
Plaintiff
✖ 3
2
U.S. Government
Defendant
4
Ada
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Lamont Anderson
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
✖ 1
Federal Question
(U.S. Government Not a Party)
Diversity
(Indicate Citizenship of Parties in Item III)
DEF
✖ 1
and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
Citizen of Another State
2
2
Incorporated and Principal Place
of Business In Another State
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Foreign Country
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Foreign Nation
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IV. NATURE OF SUIT (Place an “X” in One Box Only)
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870 Taxes (U.S. Plaintiff
or Defendant)
871 IRS—Third Party
26 USC 7609
V. ORIGIN (Place an “X” in One Box Only)
✖ 1
Original
Proceeding
2 Removed from
State Court
3
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
(specify)
6 Multidistrict
Litigation Transfer
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
8 Multidistrict
Litigation Direct File
28 United States Code, Section 2254
VI. CAUSE OF ACTION Brief description of cause:
Evolving standards of decency under the 8th Amendment render the death sentence unconstitutional.
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY
CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.
(See instructions):
JUDGE
CHECK YES only if demanded in complaint:
DEMAND $
SIGNATURE OF ATTORNEY OF RECORD
10/16/2023
/s/ Jonah J. Horwitz
✖ No
DOCKET NUMBER 99-0224
BLW
DATE
Yes
JURY DEMAND:
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
App. 065
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