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

NO. 24-5142

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________

THOMAS E. CREECH,

Petitioner,

v.

TIM RICHARDSON,

Respondent.

_____________________________________________

On Petition For Writ Of Certiorari

To The Ninth Circuit Court of Appeals

_____________________________________________

_____________________________________________

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

_____________________________________________

RAÚL R. LABRADOR

Attorney General of Idaho

L. LaMONT ANDERSON *

Deputy Attorney General

Lead, Capital Litigation Unit

Criminal Law Division

700 W. State Street

Boise, Idaho 83720-0010

Telephone: (208) 334-4539

lamont.anderson@ag.idaho.gov

Attorneys for Respondent

* Counsel of Record

CAPITAL CASE

QUESTION PRESENTED

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

Court:

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

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

executed?

(Pet. , p.i.)

Respondent Tim Richardson (“state”) wishes to rephrase the question as follows:

Because it was clear that the number of judge-imposed death sentences would

decrease in the years following this Court’s decision in Ring v. Arizona, is Creech’s

Eighth Amendment evolving standards of decency claim barred by 28 U.S.C. §

2244(b)(2) since it is a successive claim that was ripe during litigation of his first

federal habeas petition following resentencing?

i

TABLE OF CONTENTS

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

TABLE OF CONTENTS ................................................................................................................ ii

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

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

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

STATEMENT OF THE CASE........................................................................................................ 3

REASONS FOR DENYING THE WRIT ...................................................................................... 7

A.

General Legal Framework For Successive Habeas Petitions ................................. 8

B.

There Is No Split Among The Circuits Regarding Whether Late Evolving Facts

Can Be Brought In A Successive Petition ..............................................................11

C.

Creech Has Failed To Raise An Important Federal Question ............................... 19

CONCLUSION ............................................................................................................................. 24

ii

TABLE OF AUTHORITIES

CASES

Arave v. Creech (Creech IV), 507 U.S. 463 (1993) .................................................................... 3, 4

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

Banister v. Davis, 590 U.S. 504 (2020) .......................................................................................... 8

Brady v. Maryland, 373 U.S. 83 (1963) ...................................................................... 12, 14, 15, 22

Brown v. Atchley, 76 F.4th 862 (9th Cir. 2023) ............................................................................ 13

Brown v. Davenport, 596 U.S. 118 (2022) ................................................................................... 22

Bucklew v. Precythe, 587 U.S. 119 (2019) ................................................................................... 24

Buntion v. Lumpkin, 31 F.4th 952 (5th Cir. 2022).................................................................. 16, 17

Calvert v. Texas, 141 S.Ct. 1605 (2021) ....................................................................................... 23

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

Creech v. Hardison, 2006 WL 851113 (D. Ct. Idaho 2006) ............................................................ 5

Creech v. Idaho, 144 S.Ct. 1026 (2024) ...................................................................................... 1, 7

Creech v. Richardson (Creech VIII), 59 F.4th 372 (9th Cir. 2023) ................................................. 5

Creech v. Richardson, 144 S.Ct. 291 (2023)................................................................................... 5

Creech v. State (Creech VI), 51 P.3d 387 (Idaho 2002) .............................................................. 4, 5

Creech v. State (Creech IX), 543 P.3d 500 (Idaho 2024) .................................................. 1, 5, 6, 22

Creech v. State (Creech X), 543 P.3d 494 (Idaho 2024) ................................................................. 5

CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419 (2016) .......................................................... 23

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

Feather v. U.S., 18 F.4th 1032 (8th Cir. 2021) .............................................................................. 20

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

iii

Gardner v. Florida, 430 U.S. 349 (1977) ...................................................................................... 14

Gomez v. U.S. Dist. Ct. for Northern Dist. Of Cal., 503 U.S. 653 (1992) ................................... 24

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

Hill v. Alaska, 297 F.3d 895 (9th Cir. 2002) ................................................................................. 13

Hittson v. Chatman, 576 U.S. 1028 (2015) ................................................................................... 23

In re Bowe, 144 S.Ct. 1170 (2023) ............................................................................................... 12

In re Grahm, 61 F.4th 433 (4th Cir. 2023) .................................................................................... 12

In re Hill, 81 F.4th 560 (6th Cir. 2023) ................................................................................... 17, 18

In re Provenzano, 215 F.3d 1233 (11th Cir. 2000) ........................................................................ 20

In re Salem, 631 F.3d 809 (6th Cir. 2011)............................................................................... 17, 18

James v. Walsh, 308 F.3d 162 (2nd Cir. 2002) .............................................................................. 14

Jennings v. Sec., Florida Dep’t of Corr., 2024 WL 3490662 (11th Cir. 2024) ............................. 15

Kansas v. Carr, 577 U.S. 108 (2016) ............................................................................................ 23

Kennedy v. Louisiana, 554 U.S. 407 (2008) ........................................................................... 21, 22

Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009) ...................................................... 16, 17

Magwood v. Culliver, 555 F.3d 968 (11th Cir. 2009) ................................................................... 10

Magwood v. Patterson, 561 U.S. 320 (2010) ...........................................................................10, 11

McCrory v. Alabama, 144 S.Ct. 2483 (2024) ............................................................................... 19

Panetti v. Quarterman, 551 U.S. 930 (2007) .......................................................................... passim

Price v. Dunn, 139 S.Ct. 1533 (2019) ........................................................................................... 24

Rhodes v. Smith, 950 F.3d 1032 (8th Cir. 2020)..................................................................... 19, 20

Ring v. Arizona, 536 U.S. 584 (2002)........................................................................1, 5, 11, 18, 22

Rose v. Lundy, 455 U.S. 509 (1982) ............................................................................................... 9

iv

Scott v. U.S., 890 F.3d 1239 (11th Cir. 2018) ............................................................................... 15

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

Slack v. McDoniel, 529 U.S. 473 (2000) ........................................................................................ 9

State v. Creech (Creech I), 670 P.2d 463 (Idaho 1983)............................................................... 3, 4

State v. Creech (Creech II), 710 P.2d 502 (Idaho 1985) ................................................................. 4

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

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ..................................................8, 9, 11, 12, 18

Stewart v. U.S., 646 F.3d 856 (11th Cir. 2011) ....................................................................... 15, 16

Storey v. Lumpkin, 142 S.Ct. 2576 (2022) ............................................................................. 22, 23

Thompson v. Oklahoma, 487 U.S. 815 (1988) ............................................................................. 21

Thornell v. Jones, 144 S.Ct. 1302 ................................................................................................. 23

Tompkins v. Sec., Dept. of Corr., 557 F.3d 1257 (11th Cir. 2009) ......................................... 14, 15

Tyler v. Cain, 533 U.S. 656 (2001) ................................................................................................. 8

U.S. v. Buenrostro, 638 F.3d 720 (9th Cir. 2011) ......................................................................... 12

U.S. v. Johnston, 268 U.S. 220 (1925) .......................................................................................... 23

U.S. v. Lopez, 577 F.3d 1053 (9th Cir. 2009) ......................................................................... 12, 13

U.S. v. Obeid, 707 F.3d 898 (7th Cir. 2013) ................................................................................. 14

STATUTES

I.C. § 19-2719 ............................................................................................................... 1, 3, 5, 6, 22

Title 28 U.S.C. § 2244(b)....................................................................................................... passim

Title 28 U.S.C. § 2254 ................................................................................................ 12, 13, 14, 17

Title 28 U.S.C. § 2255 ...................................................................................................... 12, 15, 20

v

FEDERAL RULES

Federal Rules of Civil Procedure Rule 60(b) ................................................................................ 12

U.S. Supreme Court Rule 10........................................................................................................... 8

vi

RESPONDENT’S APPENDICES

Petitioner’s Petition for Post-Conviction Relief and/or Writ of

Habeas Corpus, Thomas Eugune Creech v. State of Idaho and State

of Idaho v. Thomas Eugene Creech, Ada County District Court Case

No. SPOT-0200712D, filed August 2, 2002 ............................................. Resp’s App., pp. 001-010

Memorandum Decision and Order, Thomas Eugune Creech v. State

of Idaho and State of Idaho v. Thomas Eugene Creech, Ada County

District Court Case No. SPOT-0200712D, filed April 25, 2003............... Resp’s App., pp. 011-019

Respondent’s Motion to Dismiss Appeal, Thomas Eugune Creech v.

State of Idaho and State of Idaho v. Thomas Eugene Creech, Idaho

Supreme Court Docket Nos. 29681/29682,

dated November 16, 2005 ......................................................................... Resp’s App., pp. 020-021

Order Granting Motion to Dismiss, Thomas Eugune Creech v. State

of Idaho and State of Idaho v. Thomas Eugene Creech, Idaho

Supreme Court Docket Nos. 29681/29682,

dated December 22, 2005 ......................................................................... Resp’s App., pp. 022-022

Petitioner’s Petition for Post-Conviction Relief, Ada County Case

No. CV01-23-16641, filed October 13, 2023 ........................................... Resp’s App., pp. 023-068

State of Arizona Executive Order 2023-05, “Establishing a Death

Penalty Independent Review Commission”, dated January 27, 2023 ...... Resp’s App., pp. 069-070

vii

INTRODUCTION

The underlying basis for Creech’s claim stems from his contention that he must be

sentenced by a jury under the rubric of the Eighth Amendment’s “evolving standards of decency,”

because of an Executive Order signed by Arizona’s new Governor on January 20, 2023, that placed

a “moratorium” on executions in Arizona, including murderers sentenced to death by a judge prior

to Ring v. Arizona, 536 U.S. 584 (2002). However, the Executive Order was issued only to allow

an Independent Review Commission to review Arizona’s execution procedures. (Resp’s App.,

pp.69-70.)

This is not the first time Creech has attempted to bring the underlying basis of his claim

before this Court. On February 20, 2024, just eight days before his last scheduled execution,

Creech filed a Petition for Writ of Certiorari (App., pp.22-52), challenging the Idaho Supreme

Court’s denial of an October 13, 2023 successive post-conviction petition that raised an identical

Eighth Amendment evolving standards of decency claim that was dismissed because it was

untimely filed under I.C. § 19-2719. Creech v. State (Creech IX), 543 P.3d 500, 505-06 (Idaho

2024). This Court denied Creech’s petition for certiorari. Creech v. Idaho, 144 S.Ct. 1026 (2024).

Creech’s successive habeas petition is based upon the same underlying claim. (Compare

App., pp.53-64 with Resp’s App., pp.23-68.) While the question Creech raises before this Court

stems from whether his claim is a successive petition that is barred by 28 U.S.C. § 2244(b)(2), the

answer is the same – Creech’s claim was ripe decades ago, because it was inevitable after Ring,

that the number of judge-sentenced murderers would decline until there are no more. And because

Creech’s federal habeas petition that was filed after his resentencing was still being litigated during

that time, the factual predicate of his claim could have been discovered through the exercise of due

diligence. See 28 U.S.C § 2244(b)(2)(B)(i).

1

Nevertheless, Creech contends certiorari should be granted “to provide clarity on the

question of whether a petition based on new facts unrelated to competency can survive the §

2244(b) bar on second or successive petitions.” (Pet., p.5.) Creech argues that, while this Court

“provided guidance on the question of successiveness in the competency context in Panetti v.

Quarterman, 551 U.S. 930 (2007), a circuit split has developed on the proper interpretation of the

holding in that case.” (Pet., pp.5-6.) Specifically, Creech contends the Second and Seventh

Circuits, and “generally” the Ninth Circuit, have “declined to apply the § 2244(b) bar to a petition

that is not chronologically first if that petition raised non-Ford claims based on late evolving facts.”

(Pet., p.7.) He further contends, the “Eleventh Circuit has indicated its agreement” with that

position but is “prevented from applying a permissive interpretation of the second-or-successive

bar without approval from this Court because of an internal rule.” (Pet., p.7.) Additionally,

according to Creech, the Fifth and Sixth Circuits “treat second-in-time petitions on late-evolving

facts as always successive when they do not raise competency claims.” (Pet., pp.7-8.)

Not only has Creech misinterpreted Panetti v. Quarterman, 551 U.S. 930 (2007), but he has

misinterpreted the holdings from the various circuits that are not based upon “late evolving facts,”

but whether the claim in his successive petition was ripe during litigation of the first petition – the

issue Creech’s successive habeas petition actually raises. Additionally, this is a poor vehicle to

resolve any alleged split because it is based upon a factual finding that the Arizona moratorium

did not strengthen Creech’s case since his claim was already ripe during litigation of his

resentencing habeas case. Further, resolution of any alleged split would not help Creech because

the Arizona Governor’s moratorium (that was imposed only so a study of Arizona’s execution

procedures could be completed) is not relevant to the question of whether evolving standards of

decency now prevent a judge-sentenced murderer from being executed. And even if the Court

2

found in favor of Creech, his case would not be resolved because the underlying legal question for

his claim – whether evolving standards of decency bar the execution of judge-sentenced murderers

– would have to be resolved, as would questions regarding whether the claim is procedurally

defaulted because the state courts rejected the claim based upon an adequate and independent state

bar – I.C. § 19-2719. Finally, based upon the procedural history of this case, this is basically a

last-minute petition that is designed to merely delay Creech’s execution, which this Court has

historically been loath to consider. 1

STATEMENT OF THE CASE

The facts surrounding Creech’s brutal murder of fellow inmate David Jensen on May 13,

1981, are also not new to this Court. In 1993, this Court explained:

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

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

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

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

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

opportunity.

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

The Idaho Supreme Court also discussed the facts surrounding David’s brutal murder. See

State v. Creech (Creech I), 670 P.2d 463, 465 (Idaho 1983). Creech pled guilty and, pursuant to

state law at that time and over his objection, was sentenced to death by a judge. Id. at 465-66. On

appeal, Creech contended, “Idaho’s death penalty provisions are unconstitutional, in that jury

participation is not required in the sentencing decision, but rather the discretion to impose a death

sentence is vested in a judge.” Id. at 473. The Idaho Supreme Court rejected Creech’s argument,

The state recognizes an actual execution date has not been set, but the state anticipates seeking a

death warrant for Creech’s execution in the very near future.

1

3

stating, “We hold that there is no federal constitutional requirement of jury participation in the

sentencing process and that the decision to have jury participation in the sentencing process, as

contrasted with judicial discretion sentencing, is within the policy determination of the individual

states.” Id. at 474. Creech’s conviction and death sentence were affirmed. See generally Creech

I. Creech next sought post-conviction relief, which was denied; the Idaho Supreme Court affirmed.

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

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

Creech v. Arave (Creech III), 947 F.2d 873, 875 (9th Cir. 1991). On appeal, Creech continued to

press his claim “that the Constitution guarantees a jury trial on the existence of aggravating

circumstances which may result in the imposition of a sentence of death.” Id. at 885. The Ninth

Circuit rejected Creech’s claim, id. at 885-86, but granted sentencing relief on three other claims,

id. at 881-85. This Court granted certiorari regarding one claim and reversed, but remanded for

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

ruling on the two other sentencing claims. Creech IV, 507 U.S. at 465, 478-79.

On remand, after hearing Creech’s additional mitigation evidence and pursuant to state law

at that time, the trial court again sentenced him to death. State v. Creech (Creech V), 966 P.2d 1,

6 (Idaho 1998). Creech again sought post-conviction relief, which was denied. Id. The Idaho

Supreme Court affirmed Creech’s new death sentence and the denial of post-conviction relief, see

generally Creech V, including his renewed claim that Idaho’s death penalty scheme violates the

Constitution without jury participation, id. at 15 (citing Creech III, 974 F.2d at 885-86).

In June 1999, Creech returned to federal court initiating new federal habeas proceedings in

his second federal habeas case. Creech v. State (Creech VI), 51 P.3d 387, 388 (Idaho 2002).

During a stay of those proceedings, Creech returned to state court and filed a successive post-

4

conviction petition that was dismissed pursuant to I.C. § 19-2719. Id. The Idaho Supreme Court

dismissed his appeal because all the claims were known or reasonably could have been known

when he filed his first post-conviction petition following his 1995 resentencing. Id. at 388-91.

On June 24, 2002, while Creech’s habeas case was still pending, this Court issued Ring,

536 U.S. 609, which held that judges could no longer determine statutory aggravating factors that

are the functional equivalent of an element of a greater offense, but those factors must be found by

a jury. Creech filed a second successive post-conviction petition, contending, based upon the Fifth,

Sixth, Eighth, and Fourteenth Amendments, that he was entitled to jury sentencing because of Ring

(Resp’s App., pp.1-10), which the post-conviction court dismissed because Ring was not

retroactive (Resp’s App., pp.11-19). The state filed a Motion to Dismiss Creech’s appeal because

the successive petition was untimely under I.C. § 19-2719 (Resp’s App., pp20-21), which the Idaho

Supreme Court granted in a single-page order (Resp’s App., p.22 (Creech VII).)

When Creech returned to federal court, he raised several jury sentencing claims that were

dismissed. Creech v. Hardison, 2006 WL 851113, *2 (D. Ct. Idaho 2006). The district court also

denied relief on his remaining claims. Creech v. Richardson (Creech VIII), 59 F.4th 372, 381 (9th

Cir. 2023). The denial of habeas relief was affirmed on February 6, 2023. 2 See generally Creech

VIII. Certiorari was denied on October 10, 2023. Creech v. Richardson, 144 S.Ct. 291 (2023).

Two days after the denial of certiorari, the state obtained a new death warrant for Creech’s

execution on November 8, 2023. Creech IX, 543 P.3d at 503. Creech responded the following

day by filing another successive post-conviction petition raising his Eighth Amendment claim

While Creech’s appeal was pending, he filed another successive post-conviction petition

contending that he should be permitted to raise ineffective assistance of trial and post-conviction

counsel claims because of Shinn v. Ramirez, 596 U.S. 366 (2022). The Idaho Supreme Court

affirmed the trial court’s summary dismissal of the petition because it was untimely under I.C. §

19-2719. Creech v. State (Creech X), 543 P.3d 494, 498-99 (Idaho 2024).

2

5

based upon evolving standards of decency that, according to Creech, bars imposition of the death

penalty without jury sentencing. (Resp. App., pp.23-68.) To avoid the issue of timeliness under

I.C. § 19-2719, Creech focused upon the January 20, 2023 Executive Order issued by Governor

Hobbs that imposed a “moratorium” on Arizona executions while Arizona’s execution procedures

were reviewed. (Id., pp.54-58.) One business day later, the post-conviction court dismissed

Creech’s successive petition because it was untimely under I.C. § 19-2719. Creech IX, 543 P.3d

at 503. However, prior to Creech being executed, the Idaho Commission of Pardons and Parole

(“Commission”) granted him a commutation hearing, causing the execution to be stayed. Id. After

the Commission denied Creech a commutation, his execution date was rescheduled for February

28, 2024. Id. The Idaho Supreme Court affirmed the post-conviction court’s dismissal of Creech’s

successive post-conviction petition on February 9, 2024, because it was not timely filed pursuant

to I.C. § 19-2719. See generally Creech IX.

However, while that appeal was pending, on October 16, 2023, Creech filed a successive

Petition for Writ of Habeas Corpus (“Successive Petition”) raising the same Eighth Amendment

claim raised in his successive post-conviction petition. (Compare App., pp.53-64 with Resp’s

App., pp.23-46.) To overcome the successive petition bar under 28 U.S.C. § 2244(b)(2), Creech

again relied primarily upon Governor Hobbs’ Executive Order. (App., pp.57, 60.) The district

court agreed with the state’s assertion that the Successive Petition is barred pursuant to the

successive petition bar under § 2244(b)(2) and was without jurisdiction to consider the claim, but

granted a COA with respect to whether the Successive Petition is barred under § 2244(b)(2).

(App.14-21.)

With a new execution date pending, the Ninth Circuit affirmed, concluding the claim could

have been raised in Creech’s first resentencing habeas petition, because “[i]t was clear, once Ring

6

was decided, 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., p.6.) The

court expressly rejected Creech’s argument based upon Arizona’s Executive Order, explaining,

Creech “has not shown that his claim was unripe in the years immediately following Ring, when

judge-sentenced 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.”

(App., p.7.) And “even assuming that categorical execution moratoria can provide a basis for

Creech’s Eighth Amendment claim, several such bans had been imposed in the years before

Creech’s habeas proceedings ended in federal court.” (App., pp.7-8) (citing cases). Consequently,

the court reasoned, “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.” (App., p.8.) Creech did

not seek certiorari from the Ninth Circuit’s decision prior to his February 28, 2024 scheduled

execution, 3 but only sought certiorari from the Idaho Supreme Court’s decision (App., pp.,22-52),

which this Court denied. Creech, 144 S.Ct. 1026.

REASONS FOR DENYING THE WRIT

Certiorari is granted only for “compelling reasons,” which generally include: (1) a United

States court of appeals entering “a decision in conflict with the decision of another United States

court of appeals on the same important matter”; or (2) “a United States court of appeals has decided

an important question of federal law that has not been, but should be settled by this Court, or has

Creech’s execution did not take place because the execution team could not locate a peripheral

vein that would support the execution drugs.

3

7

decided an important federal question in a way that conflicts with relevant decisions of this Court.”

S. Ct. R. 10.

Because he has misinterpreted the holding from Panetti, and the circuit decisions discussing

Panetti, there is no conflict between the various circuits regarding whether Creech’s successive

habeas petition is barred under 28 U.S.C. § 2244(b)(2). The question under Panetti and its progeny

is not when a factual predicate can be discovered, see 28 U.S.C. § 2244(b)(2)(B)(i), but when the

claim itself becomes ripe. Based upon that question, Creech has failed to establish a conflict

between the various circuits. And even if such a conflict existed, it is of no import to Creech’s

underlying claim. For the same reason, this is not an important question of federal law that this

Court should consider, particularly in the context of the question Creech raises and the history of

his case. Rather, Creech is basically filing a last-minute petition that could have been presented to

this Court prior to his last scheduled execution on February 28, 2024.

A.

General Legal Framework For Successive Habeas Petitions

After passage of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), the

power of federal courts to award relief to state prisoners who file successive habeas petitions is

greatly restricted. Tyler v. Cain, 533 U.S. 656, 661 (2001); Banister v. Davis, 590 U.S. 504, 515

(2020). Generally, if a petitioner raises a claim that was not presented in the previous petition, it

must be dismissed unless it falls within one of the two narrow exceptions articulated in 28 U.S.C.

§ 2244(b)(2). Stewart v. Martinez-Villareal, 523 U.S. 637, 642 (1998).

However, beginning in Martinez-Villareal, this Court began crafting exceptions to §

2244(b)(2)’s general rule. Based upon Ford v. Wainwright, 477 U.S. 399, 410 (1986), MartinezVillareal filed a request to file a successive habeas petition challenging his competency to be

executed. Martinez-Villareal, 523 U.S. at 640-41. In conjunction with several other claims,

8

Martinez-Villareal had previously filed a Ford claim. Id. at 640. After the district court granted

the writ on other grounds, the Ninth Circuit reversed, but explained, “its instruction to enter

judgment denying the petition was not intended to affect any later litigation of the Ford claim.”

Id. On remand, the district court denied Martinez-Villareal’s motion to reopen his earlier petition

but reassured him it had “no intention of treating the Ford claim as a successive petition.” Id.

(cleaned up). After the state obtained a new death warrant, Martinez-Villareal again moved to

reopen his Ford claim, which the court denied based upon § 2244(b)(2). Id. at 640-41. The Ninth

Circuit concluded §2244(b)(2) did not apply to a petition raising only a Ford claim. Id. at 641.

This Court viewed the Ford claim “in the same manner as the claim of a petitioner who

returns to a federal habeas court after exhausting state remedies” as permitted under Rose v. Lundy,

455 U.S. 509, 322 (1982), and concluded, “There 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,” id. at 64344. However, the Court was careful to explain, “This case does not present the situation where a

prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already

rejected the prisoner’s initial habeas application.” Id. at 645 n.*.

In Slack v. McDoniel, 529 U.S. 473, 487 (2000), the Court reaffirmed the underlying

principle from Martinez- Villarreal – “[a] petition filed after a mixed petition has been dismissed

under Rose v. Lundy before the district court adjudicated any claims is to be treated as ‘any another

other first petition’ and is not a second or successive petition.”

In Panetti, 551 U.S. at 945 (quotes omitted), the Court addressed the unanswered question

from Martinez-Villareal – “the applicability of § 2244(b) where a prisoner raises a Ford claim for

the first time in a petition filed after the federal courts have already rejected the prisoner’s initial

habeas application.” Noting “the Court’s willingness to look to the implications for habeas practice

9

when interpreting § 2244,” the Court held “that Congress did not intend the provisions of AEDPA

addressing second or successive petitions to govern a filing in the unusual posture presented here:

a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.”

Panetti, 551 U.S. at 945 (quotes omitted). The Court confirmed its decision was based upon

AEDPA’s purposes – “to further the principles of comity, finality, and federalism,” id. (quotes

omitted) – and that those purposes would not be furthered by requiring the filing of “unripe (and,

often, factually unsupported) claims to be raised as a mere formality, to the benefit of no party,”

id. at 947. Noting no court would “be able to resolve a prisoner’s Ford claim before execution is

imminent” and there was “no argument that petitioner’s actions constituted an abuse of the writ,

the Court concluded, “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 946-47. However,

the Court was careful to limit its holding, explaining, “In the usual case, a petition filed second in

time and not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second or

successive bar,’” id. at 947, and “last-minute filings that are frivolous and designed to delay

executions can be dismissed in the regular course,” id. at 946.

Finally, in Magwood v. Patterson, 561 U.S. 320, 323 (2010), the petitioner filed a secondin-time habeas petition after being granted habeas sentencing relief, being resentenced, and a new

judgment being entered. The Eleventh Circuit held that Magwood’s challenge to his new sentence

was an unreviewable second or successive challenge under 28 U.S.C. § 2244(b) because he could

have raised the same claim in his first-in-time habeas petition. Id. at 329 (citing Magwood v.

Culliver, 555 F.3d 968, 975-76 (11th Cir. 2009)). Rejecting the state’s “claim focused” argument,

this Court concluded that both 28 U.S.C. § 2244(b)’s “text and the relief it provides indicate that

the phrase ‘second or successive’ must be interpreted with respect to the judgment challenged.”

10

Id. at 332-33. Consequently, if there is a new or intervening state court judgment, the second-intime habeas petition is not successive. Id. at 341-42. 4

B.

There Is No Split Among The Circuits Regarding Whether Late Evolving Facts Can Be

Brought In A Successive Petition

Creech clearly states that he is not relying upon “late evolving facts in the form of a new

state-court judgment (Magwood), or the recent exhaustion of claims (Slack),” but contends his

petition is not barred by § 2244(b)(2) because of “other kinds of facts that evolved after his initial

petition was brought–the diminution in executions of prisoners sentenced to death solely by a

judge.” (Pet., p.7.) In other words, Creech is relying upon Martinez-Villarreal and Panetti to craft

a new exception that is based upon new facts uncovered years after a first habeas petition has been

denied, as opposed to a claim that was not ripe when the first habeas petition was being litigated

and could not have been raised. Consequently, he has failed to establish there is a split where his

case merely hinges on when his claim became ripe, which was after this Court’s decision in Ring,

during litigation of his first petition. Nevertheless, Creech divides the circuits into two camps: (1)

circuits that have declined to apply § 2244(b)’s bar when the second-in-time petition raises nonFord claims, including, according to Creech, the Second, Seventh, generally the Ninth, and the

Eleventh, and (2) circuits that bar successive petitions for everything but Ford claims, including

the Fifth and Sixth. (Pet., pp.7-8.)

Creech initially relies upon several cases from the Ninth Circuit. (Pet., pp.8-9.) However,

careful review of those cases establishes the decisions were based upon when a claim became ripe,

The Court addressed the state’s concern that such a rule could also result in challenges to the

original, undisturbed conviction, by avoiding the question because “[t]his case gives us no

occasion to address that question, because Magwood has not attempted to challenge his underlying

conviction.” Magwood, 555 U.S. at 342 (footnote omitted).

4

11

not when the factual predicate of the underlying claim was discovered. In U.S. v. Buenrostro, 638

F.3d 720, 721-23 (9th Cir. 2011), the petitioner moved to reopen his 28 U.S.C. § 2255 5 case under

Fed. R. Civ. P. 60(b) raising an ineffective assistance of counsel claim, which the court treated as

a request to file a second petition, after his attorney rejected a plea offer without consulting the

petitioner. The court opined that Martinez-Villareal and Panetti, “do not apply only to Ford

claims,” but may apply to “second-in-time petitions based on events that do not occur until a first

petition is concluded,” such as “denial of parole, revocation of a suspended sentence, and the like

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

habeas proceeding.” Id. at 725. However, even though the petitioner had no reason to know his

attorney failed to convey a plea offer, the court rejected his request because the claim was “ripe at

the time of [the] prisoner’s first § 2255 proceeding,” and, therefore, was subject to the restrictions

of § 2244(b)(2). Id. at 725-26.

In U.S. v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009), the petitioner filed a successive

habeas petition under § 2255 based upon an alleged violation of Brady v. Maryland, 373 U.S. 83

(1963). While the Ninth Circuit opined that the considerations identified in Panetti, “are not

specifically limited to Ford claims,” id. at 1064, it concluded that “exempting all second-in-time

Brady claims from AEDPA’s gatekeeping provisions is untenable.” Id. at 1066 (emphasis original).

The court reasoned, “construing nonmaterial Brady claims as ‘second or successive’ is consistent

Creech asserts the courts “have analyzed successiveness in the same manner for applications filed

under both § 2254 and § 2255.” (Pet., p.11 n.5) (citing cases). However, the circuits are split and

this Court has not determined whether 28 U.S.C. § 2244(b)(1) applies to both 28 U.S.C. §§ 2254

and 2255, see In re Bowe, 144 S. Ct. 1170, 1171 (2024) (Sotomayor, J., respecting the denial of

certiorari) (citing cases). The courts also appear to be split on the question of the applicability of

§ 2244(b)(2) in §§ 2254 and 2255 cases. See In re Grahm, 61 F.4th 433, 439-41 (4th Cir. 2023).

Nevertheless, as the cases cited by Creech and the state demonstrate, it appears the circuits have

analyzed “successiveness” in the same or similar manner regarding of whether the petition is

governed by § 2254 or § 2255, at least with respect to Panetti.

5

12

with Panetti’s analytical approach; it would not be perverse to bar such claims, given their lack of

merit; precluding federal review of such claims would conform with the Supreme Court’s preAEDPA jurisprudence; and it would be fully consistent with AEDPA’s goals of promoting finality,

comity and federalism to bar petitioners from raising such meritless claims in second-in-time

petitions.” Id. The court expressly declined to “resolve the more difficult question whether all

second-in-time Brady claims must satisfy AEDPA’s gatekeeping requirements.” Id. at 1066

(emphasis in original).

Brown v. Atchley, 76 F.4th 862, 868-72 (9th Cir. 2023), is a factually and procedurally

complex case because it is based upon two successive § 2254 petitions filed after the California

Legislature amended its law for accomplice liability in murder cases after the petitioner was

sentenced, and allowed the petitioner to obtain retroactive sentencing relief. After being denied

sentencing relief in state court, the petitioner filed his third and fourth federal habeas petitions. Id.

at 871. The Ninth Circuit reasoned the petitioner’s habeas claims were not ripe when he filed his

first federal petition and could not have been raised at that time, because they were based upon

legislative changes enacted after that first petition was resolved. Id. at 873.

In Hill v. Alaska, 297 F.3d 895, 898-99 (9th Cir. 2002), the parties agreed the second-intime petition should not be categorized as a successive petition under § 2244(b) since it was based

upon the state’s refusal to grant him parole, which was not ripe when the first petition was filed

and could not have been raised in the first petition.

Contrary to Creech’s argument, the Ninth Circuit’s analyses have not been “inconsistent”

(Pet., p.9), but are based upon determination of when a claim is ripe and could have been filed, not

when additional evidence is discovered to support the claim and make it stronger. The same is

true with the other circuits.

13

In U.S. v. Obeid, 707 F.3d 898, 902 (7th Cir. 2013) (citing cases), the court recognized

several circuits have relied on Panetti’s analysis in “other types of second-in-time petitions that

were not ripe at the time of the initial petition.” However, the court explained that, “[i]n adopting

this ripeness rule, courts have been careful to distinguish genuinely unripe claims (where the

factual predicate that gives rise to the claim has not yet occurred) from those in which the petitioner

merely has some excuse for failing to raise the claim in his initial petition (such as when newly

discovered evidence supports a claim that the petitioner received ineffective assistance of counsel);

only the former class of petitions escapes classification as ‘second or successive.’” Id. (citing

cases.) Adopting this general rule, the Seventh Circuit concluded that, because the factual

predicate for the petitioner’s claim was “not in place until the government violated this (supposed)

promise by seeking an additional sentence reduction only for [the co-defendant],” the second-intime petition was not successive under § 2244(b)(2). Id. at 903.

In James v. Walsh, 308 F.3d 162, 165 (2nd Cir. 2002), the petitioner filed a second-in-time

§ 2254 petition contending the department of corrections improperly applied credit for time served,

resulting in a later release date. The Second Circuit opined the petition was not barred by § 2244(b)

because the petitioner “could not have argued that he was in custody in violation of laws of the

United States before the time when, according to his calculations, he should have been released,”

and, therefore, the claim “did not exist” when he filed his first petition. Id. at 168.

Tompkins v. Sec., Dept. of Corr., 557 F.3d 1257, 1258 (11th Cir. 2009), also involved a §

2254 second-in-time petition that included claims about improper communications between the

sentencing judge and prosecutor in violation of Gardner v. Florida, 430 U.S. 349 (1977), and raised

another Brady claim. The court recognized that Gardner and Brady claims are significantly

different than a Ford claim because they “are claims that can be and routinely are raised in initial

14

habeas petitions.” Tompkins, 557 F.3d at 1260. Therefore, because they “are ripe for inclusion in

a first petition,” the Eleventh Circuit reasoned the claims were barred by § 2244(b)(2). Id. The

court rejected the notion that any claim based upon new evidence is not ripe until the evidence is

discovered because, under Panetti, a Ford claim cannot be ripe until the time of an execution. Id.

Consequently, the discovery of new facts is governed by § 2244(b)(2)(B). Id.

Admittedly, subsequent Eleventh Circuit panels have questioned the analysis in Tompkins

as it relates to Brady claims, see e.g. Jennings v. Sec., Florida Dep’t of Corr., 2024 WL 3490662,

*3-6 (11th Cir. 2024); Scott v. U.S., 890 F.3d 1239, 1253-56 (11th Cir. 2018), and opined that

Tompkins bars all second-in-time Brady claims, Scott, 890 F.3d at 1243. Nevertheless, the Scott

court still recognized the issue is not discovery of the factual predicate of a claim, but when the

claim becomes ripe, and simply concluded that “Brady claims in state proceedings do not ‘ripen’

any sooner than do Brady claims in federal proceedings.” Id. at 1258. Regardless, Creech is not

raising a Brady claim, but an Eighth Amendment evolving standards of decency claim where the

factual predicate of his claim was known during his first habeas proceedings after this Court

decided Ring. He has simply tried to bolster his claim with the Arizona Executive Order that is

based only on a study of Arizona’s execution procedures.

More importantly, the Eleventh Circuit has applied Panetti to cases outside of Brady, and

recognized there are non-Ford claims that are not barred by § 2244(b)(2). In Stewart v. U.S., 646

F.3d 856, 860-61 (11th Cir. 2011), the petitioner filed a successive § 2255 petition based upon Texas

refusing to follow a presidential declaration mandating that states comply with an opinion from

the International Court of Justice, which held that the United States violated the Vienna

Convention’s guarantee of consular access and ordered that convictions and sentences of those

individuals whose rights were violated be reviewed. The court recognized the presidential

15

declaration was not issued until after the petitioner’s first petition was denied, and that Texas’

refusal to review his conviction also did not occur until well after those first proceedings were

concluded. Id. at 861. Relying upon the Fifth Circuit’s approach in Leal Garcia v. Quarterman,

573 F.3d 214 (5th Cir. 2009), the Eleventh Circuit distinguished Tompkins, and concluded:

Claims based on a factual predicate not previously discoverable are

successive, but if the purported defect did not arise, or the claim did not ripen, until

after the conclusion of the previous petition, the later petition based on that defect

may be non-successive. We are not faced with a claim based on facts that were

merely undiscoverable. Rather, Stewart has presented a claim, the basis for which

did not exist before the vacatur of his predicate state convictions–after his first §

2255 motion had already been filed and dismissed.

Id. at 863 (cleaned up).

Creech contends the Fifth and Sixth Circuits do not apply § 2244(b) based upon “late

evolving facts.” (Pet., p.12.) Contrary to Creech’s argument, it is not “late evolving facts” that

circumvent § 2244(b)(2)’s bar, but, like the other circuits, it is whether those facts result in a new

claim becoming ripe, which is often claim specific. Admittedly, in Buntion v. Lumpkin, 31 F.4th

952, 961 (5th Cir. 2022), the Fifth Circuit examined Panetti, and, in denying a certificate of

appealability, concluded, “reasonable jurists could not debate that Panetti applies only to Ford

claims.” The court also stated, “And neither the Supreme Court nor the Fifth Circuit has ever

extended Panetti to cover non-Ford claims.” Id. However, the court ignored Leal Garcia, and the

cases cited therein where the Fifth Circuit had clearly extended Panetti to non-Ford claims. Leal

Garcia, 573 F.3d at 222. Specifically, the Leal Carcia court recognized that “later habeas petitions

attacking distinct judgments, administration of an inmate’s sentence, a defective habeas proceeding

itself, or some other species of legal error–when the error arises after the underlying conviction–

tend to be deemed non-successive.” Id. (footnotes omitted).

16

Moreover, in Buntion, the court reasoned, “even if Panetti could encompass some nonFord claims, its exception undebatably applies only to claims that were not ripe when the prisoner

filed his last habeas petition.” 31 F.4th at 961 (emphasis omitted). Because the successive claim

was based upon whether the petitioner’s “peaceful” conduct in prison refuted the jury’s finding of

future dangerousness, the court concluded the claim was “undoubtedly ripe when he filed his last

petition,” because the jury’s finding was based upon a “probabilistic assessment” of future acts of

violence that were possible to assess “based on facts in existence at the time of the assessment.”

Id. at 961 (emphasis omitted). Based upon Leal Garcia, and the discussion of Panetti in Buntion,

the Fifth Circuit has not concluded all non-Ford successive petitions are barred by § 2244(b).

In re Hill, 81 F.4th 560, 365-66 (6th Cir. 2023), involves a successive § 2254 petition based

upon 2013 and 2016 reports from the American Board of Forensic Odontology (“ABFO”)

suggesting the use of bitemarks to identify a specific biter might be unreliable. Based upon the

reports, Hill filed a second-in-time petition in June 2020, while his first petition was still pending

en banc review, contending his conviction and sentence violated due process because they were

based upon fabricated scientific evidence and the trial court failed to properly conduct a

“materiality review of the bitemark evidence” under Ohio rules. Id. at 565-66. Addressing the

question of whether the claims were barred by §2244(b)(2), the Sixth Circuit initially recognized

the three exceptions to § 2244(b)(2)’s bar described above, especially the exception developed

under Panetti. Id. at 568-69. While acknowledging that Panetti “seemed to cabin the ripeness

argument to the ‘unusual posture’ of Ford claims,” the court recognized it had previously expanded

Ford “to other ripeness claims.” Id. at 568 n.6. Specifically, in In re Salem, 631 F.3d 809, 811-12

(6th Cir. 2011), the court examined an entrapment claim, which was based upon procedures in a

hearing that occurred in state court because of a ruling from the federal district court in the first

17

habeas case. The court concluded the entrapment claim was similar to the Ford claim in MartinezVillareal, “because both were presented in the initial habeas petition, yet neither was ripe for

review. The entrapment claim could only be properly assessed based on evidence from a

constitutional hearing, which had yet to occur.” Salem, 631 F.3d at 813.

In Hill, the court concluded it was imperative to “define the claim at issue” and then

determine whether it “was unripe or unexhausted at the time [petitioner] filed his first habeas

petition.” 81 F.4th at 570. Ultimately, the court reasoned, “as Hill’s 1996 habeas petition makes

clear, a challenge to the bitemark evidence has always been available to Hill. So any claim as to

the bitemark evidence’s unreliability was ripe at the time of his first habeas petition.” Id. The

court further explained, “that if we came out Hill’s way, most convictions involving forensic

evidence would never be final. The end of Hill’s logic is that a petitioner could raise a new dueprocess claim, unmoored from the gatekeeping provisions, anytime a relevant scientific standard

changed. If that were the case, we’d be undermining § 2244(b)(2) and AEDPA generally–that is,

we’d be undermining the finality of convictions.” Id. at 572. Again, the question was ripeness,

not the factual predicate of the claim.

The “split” that Creech contends exists, does not; every circuit he addresses has concluded

that, based upon the claim and whether it was ripe at the time of the first petition, the rationale of

Panetti extends beyond Ford claims. Here, the lower courts have simply concluded that Creech’s

Eighth Amendment evolving standards of decency claim was ripe during the litigation of his first

habeas petition because of this Court’s decision in Ring. And even if there was a split, Panetti

merely forces courts to draw very fine distinctions between claims that are truly unripe and claims

that are only based upon newly discovered evidence that make them stronger than if they had been

previously raised, and which are governed by § 2244(b)(2)(A) and (B).

18

C.

Creech Has Failed To Raise An Important Federal Question

For the same reasons in the prior section, Creech has failed to establish an “important issue”

that warrants this Court’s expenditure of valuable time and resources. Creech primarily focuses

upon advancements in the forensic science field to argue his claim presents an important federal

question. (Pet., pp.15-17.) However, those advancements are inapposite to the question he raises

here that is based upon an Eighth Amendment evolving standards of decency claim stemming from

Arizona’s Executive Order, where the so-called moratorium is, at best, additional evidence that

could support a claim that was ripe decades ago.

And while Creech notes Justice Sotomayer’s statement in McCrory v. Alabama, 144 S.Ct.

2483, 2483 (2024) (Sotomayer, J., respecting the denial of certiorari) (Pet., p.16), he fails to

acknowledge that case was limited to bitemark evidence “that has now been roundly condemned

by the scientific community and retracted by the expert who introduced it at his trial” and that

“newly-discovered forensic evidence is different from other newly-discovered evidence,” id. at

2487. More importantly, McCroy involved a successive state post-conviction petition, not a

successive federal habeas petition that is governed by AEDPA. Indeed, Justice Sotomayer

ultimately recognized that the issues raised have “not yet percolated sufficiently in the lower courts

to merit this Court’s review,” id. at 2489, and that, “[r]ather than waiting for this Court to address

discredited forensic evidence testimony via constitutional law, Congress and state legislatures can

more efficiently address this known problem in the first instance,” id. at 2488.

Creech also relies upon Rhodes v. Smith, 950 F.3d 1032, 1034-35 (8th Cir. 2020) (Pet.,

p.16), which involved new peer-reviewed medical literature regarding neck hemorrhages and a

survey by a state agency regarding the temperature of the lake where the victim was murdered.

However, the court decided the case based upon one of the exceptions to § 2244(b)(2) – §

19

2244(b)(2)(B)(ii). In other words, the court assumed the claim was successive and barred under §

2244(b)(2), id. at 1036 and addressed only whether the petitioner had established that “the facts

underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense” under §

2244(b)(2)(B)(ii). Id. Ultimately, the court concluded the petitioner had not met his burden of

establishing “actual innocence” based upon the new evidence. Id. at 1036-37.

That is where Creech’s claim falls – whether the Executive Order “would be sufficient to

establish by clear and convincing evidence that, but for constitutional error, no reasonable

factfinder would have found [him] guilty of the underlying offense.”

28 U.S.C. §

2244(b)(2)(B)(ii). Apparently recognizing he cannot meet that burden, Creech contends his claim

is not even successive under § 2244(b)(2), which, as previously explained, is simply not true

because the claim was ripe during litigation of his first habeas petition after resentencing.

The same is true in Feather v. U.S., 18 F.4th 1032, 1036 (8th Cir. 2021) (Pet., p.17), a case

involving a successive § 2255 petition that challenged an expert’s trial testimony in a child sex

abuse case with affidavits from new experts and changes in forensic medical science that the trial

expert’s testimony was “inconsistent with sound scientific methods”; the court never addressed the

successive petition bar under § 2244(b)(2). Indeed, the only citation to § 2244(b) involves the

court’s citation of Rhodes, followed by, “see 28 U.S.C. § 2244(b).” Feather, 187 F.4th at 9086.

Finally, Creech relies upon In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000), that, in

relevant part, sought authorization to file a second habeas petition based upon an Eighth

Amendment lethal injection claim, where the petitioner had previously challenged Florida’s

electrocution claim. Of course, if the petitioner was seeking authorization to file a second petition

20

under § 2244(b)(3), he was conceding it was a successive petition that was barred under §

2244(b)(2), which is why there was no discussion of the successive petition bar under § 2244(b)(2).

Not only are these cases inapposite to the question Creech presents to this Court, but they

demonstrate why he has not presented an important federal question that requires the use of this

Court’s limited time and resources. Should this Court wish to address the question of evolving

and changing science and how it interacts with § 2244(b)(2), it should wait for an appropriate case.

D.

Creech’s Case Is A Poor Vehicle To Address The Question He Raises

In addition to failing to establish a circuit split on the question he raises or establishing the

question involves an important federal question, Creech’s case is a poor vehicle to address the

question he raises. First, Governor Hobbs’ Executive Order is not a true moratorium compared to

the moratoria upon which this Court has noted when previously addressing Eighth Amendment

evolving standards of decency. Further, a review of the cases cited by Creech does not focus upon

gubernatorial imposed moratoria but whether a death-sentenced murderer has been executed. See

e.g. Atkins v. Virginia, 536 U.S. 304, 316 (2002); Kennedy v. Louisiana, 554 U.S. 407, 434 (2008);

Thompson v. Oklahoma, 487 U.S. 815, 832 (1988); Enmund v. Florida, 458 U.S. 782, 794 (1982).

And in one of the few cases that even references a moratorium, it was merely noted that Oregon

had “suspended the death penalty and executed only two individuals in the past 40 years.” Hall v.

Florida, 572 U.S. 701, 716 (2014). And for good reason: governors and their political ideologies

often change based upon the views of the people and especially juries. That is even more

significant here where the so-called moratorium was imposed to merely study Arizona’s execution

procedures. It is entirely possible that, at the end of that comprehensive study, new procedures

will be implemented, and executions will resume in Arizona. And as Creech concedes, “If Arizona

were carrying out executions now, [he] would not have his claim.” (Pet., p.20.)

21

Moreover, contrary to Creech’s contention, this Court does not “place[ ] a premium on

execution rates.” (Pet., p.20.) Rather, on occasion they have been a single factor that has been

considered by the Court in determining “[t]he existence of objective indicia of consensus against

making a crime punishable by death.” Kennedy, 554 U.S. at 422, 432. In the case of a moratorium

that is imposed while a study is completed, it should not even be a factor, let alone a basis for filing

a successive habeas petition in violation of § 2244(b)(2).

Second, resolution of this question does not resolve Creech’s case. As already decided by

the Idaho Supreme Court, Creech’s successive post-conviction petition raising the same claim was

rejected based upon a state procedural bar under I.C. § 19-2719, see Creech IX, 543 P.3d at 50506, which is an independent and adequate state procedural bar, see Brown v. Davenport, 596 U.S.

118, 133 (2022) (“The Court established procedural-default standards to prevent petitioners from

evading independent and adequate state-law grounds sustaining their convictions.”). Moreover,

the claim would fail on the merits because there are no evolving standards of decency associated

with judge-sentenced murderers imposing the death penalty. Rather, any decline in the execution

of judge-sentenced murderers is based upon Ring, because “[i]t 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., p.6.)

Consequently, “[t]he procedural posture” of Creech’s case falls into the category of being

“a poor fit for this Court’s review.” Storey v. Lumpkin, 142 S.Ct. 2576, 2578 (2022) (Sotomayer,

J., respecting the denial of certiorari). Storey involved the question of whether an unknown Brady

claim was barred by § 2244(b)(2). Id. at 2577. The Fifth Circuit had concluded that a Brady claim

cannot be raised in a successive petition even if the alleged suppression was unknown at the time

22

the first habeas petition was filed. Id. at 2578. Justice Sotomayer opined the Fifth Circuit’s rule

is contrary to Panetti, and that three other circuits have adopted “the same erroneous interpretation

as the Fifth Circuit.” Id. n.1. Consequently, if Storey was a “poor fit for this Court’s review,” id.,

Creech’s case is an even poorer fit.

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

(quotation and citation omitted), “Even where a state court has wrongly decided an important

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

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

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

convinced that the Eleventh Circuit would have reached the same conclusion had it properly

applied Ylst [v. Nunnemaker, 501 U.S. 797 (1991].”). Moreover, where “[t]he record in this case

is complex, contested, and thousands of pages long” with an “‘extensive record’ and ‘intricate

procedural history,’” it is not an appropriate case to reach and settle a fact-sensitive issue.’”

Thornell v. Jones, 144 S.Ct. 1302, *10 (2024) (Sotomayer, J., dissenting) (cleaned up) (quoting

CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 435 (2016)); see also U.S. v. Johnston, 268

U.S. 220, 227 (1925) (“We do not grant a certiorari to review evidence and discuss specific facts.”).

Creech’s case fits into these categories where certiorari has been denied, particularly where he has

failed to “meet this Court’s traditional criteria for certiorari.” Calvert v. Texas, 141 S.Ct. 1605,

1607 (2021) (Sotomayer, J., respecting the denial of certiorari).

Finally, because Creech could have filed his Petition prior to his last scheduled execution

(and did file a petition raising the same Eighth Amendment evolving standards of decency claim

in the context of a state claim), it appears obvious that this Petition is being filed at the last minute

and is designed to either prevent the state from seeking a new death warrant or from completing

23

his execution in the near future. Indeed, not only did Creech fail to file his Petition before the

scheduled execution, but he sought and secured a 60-day extension of time after the execution

could not be completed. This “is the same strategy adopted by many death-row inmates with an

impending execution: bring last-minute claims that will delay the execution, no matter how

groundless.” Price v. Dunn, 139 S.Ct. 1533, 1540 (2019) (Thomas, J., concurring in the denial of

certiorari); see also Gomez v. U.S. Dist. Ct. for Northern Dist. Of Cal., 503 U.S. 653, 654 (1992)

(per curiam) (“A court may consider the last-minute nature of an application to stay execution in

deciding whether to grant equitable relief.”). Creech should not be rewarded for invoking a

strategy of piecemeal litigation that has resulted in decades of delay through the filing of multiple

successive post-conviction petitions in state courts and years of delay in the federal courts. “Both

the State and the victims of crime have an important interest in the timely enforcement of a

sentence. Those interests have been frustrated in this case.” Bucklew v. Precythe, 587 U.S. 119,

149 (2019) (citation and quotes omitted).

CONCLUSION

The state respectfully requests that Creech’s Petition for a Writ of Certiorari be denied.

DATED this 16th day of August, 2024.

Respectfully submitted,

RAÚL R. LABRADOR

Attorney General of Idaho

/s/ L. LaMont Anderson

L. LaMONT ANDERSON*

Lead Deputy Attorney General,

Capital Litigation Unit

700 W. State Street

Boise, ID 83720-0010

Telephone: (208) 334-4539

*Counsel of Record

24