Reply 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 United States Court of Appeals for

the Ninth Circuit

REPLY IN RESPONSE TO BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CAPITAL CASE

Jonah J. Horwitz

Counsel of Record

FEDERAL DEFENDER SERVICES OF IDAHO, INC.

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Jonah_Horwitz@fd.org

208-331-5530

Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ 1

I.

The State has failed to disprove a circuit split. ...................................... 3

II.

This petition presents an important issue. ............................................. 6

III.

This case cleanly tees up the question presented. .................................. 7

CONCLUSION............................................................................................................. 11

REPLY – Page 1

TABLE OF AUTHORITIES

Federal Cases

Page(s)

Ford v. Wainwright, 477 U.S. 399 (1986) ........................................................... 4, 5, 7

Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................ 10–11

Hall v. Florida, 572 U.S. 701 (2014) ........................................................................... 9

Panetti v. Quarterman, 551 U.S. 930 (2007) ....................................................... 3–5, 6

Pulley v. Harris, 465 U.S. 37 (1984) ............................................................................ 8

Ring v. Arizona, 536 U.S. 584 (2002) ...................................................................... 8–9

Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................................ 9

Storey v. Lumpkin, 142 S. Ct. 2576 (2022) ................................................................. 5

Walton v. Arizona, 497 U.S. 639 (1990) ...................................................................... 8

Federal Statutes

28 U.S.C. § 2244 ........................................................................................................... 5

Rules

Supreme Ct. R. 10 ........................................................................................................ 7

Other Authorities

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

Rev. L. & Soc. Sci. 539 (2019) ....................................................................... 8–9

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In the face of an important issue on which the circuits themselves and others

have recognized a split, the State elects to relabel Mr. Creech’s claim with

terminology more convenient to its own perspective, suggest alternative vehicles that

would be far muddier, and blame a death-row inmate for obstructing a death warrant

that does not exist. The State’s efforts fail, and certiorari review remains appropriate.

I.

The State has failed to disprove a circuit split.

The State makes a misguided attempt to distinguish between ripeness on the

one hand and the discovery of the factual predicate upon which a claim is based on

the other. But it is a distinction without a difference for the purposes of this petition

for certiorari. For in the cases the States cites, the ripeness determination turns on

the circuit court’s interpretation of the discovery of the factual predicate. See, e.g., In

re Hill, 81 F.4th 560, 570 (6th Cir. 2023) (en banc) (concluding that a claim had been

ripe earlier because the evidence at issue had “always been available to” the inmate);

Buntion v. Lumpkin, 31 F.4th 952, 961 (5th Cir. 2022) (per curiam) (finding a claim

ripe when the previous habeas petition was filed because it related to “facts in

existence at the time of the assessment” (emphasis removed)). It is not simply the

categorization of claims as ripe or unripe that matters here, but rather the steps

involved in reaching the ripeness decision—steps that the circuit court are split on.

Far from proving the absence of a circuit split, the State’s discussion thus serves

instead to highlight the circuit split this Court should take the opportunity to resolve

here.

The history of Panetti v. Quarterman, 551 U.S. 930 (2007), provides helpful

context. In Panetti, the petitioner’s competence was an issue throughout his case as

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a whole. 551 U.S. at 935–42. At trial, “[t]he court ordered a psychiatric evaluation,

which indicated that petitioner suffered from a fragmented personality, delusions,

and hallucinations.” Id. at 936. Though the trial court ultimately concluded that the

petitioner was “competent to be tried and to waive counsel” during trial, he was found

“incompetent to waive the appointment of state habeas counsel” less than two months

after he was sentenced to death. Id. at 936–37. Petitioner’s competence to stand trial

and to waive counsel were issues raised during both state and federal post-conviction

proceedings. Id. at 937.

However, despite the fact that the petitioner’s competence had been at issue

for over a decade, and despite the fact that the petitioner had previously failed to

raise incompetence to be executed as a claim under Ford v. Wainwright, 477 U.S. 399

(1986), this Court did not consider his second-in-time federal habeas petition raising

the Ford claim to be “second or successive.” Panetti, 551 U.S. at 945–47. Rather, the

petitioner’s Ford claim was timely brought. Id.

Well before he filed his second-in-time petition, the petitioner in Panetti knew

that he was incompetent and that, due to his death sentence, he would very likely be

executed. However, despite both of these things, it was the late-evolving occurrence

of the factual predicate that his claim was based on—the issuance of a death

warrant—which rendered his Ford claim ripe and enabled him to avoid the AntiTerrorism and Effective Death Penalty Act’s (“AEDPA”) “second or successive” bar.

Id.

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It is this reasoning that the circuit courts are split in applying. The State

contends that the circuit court decisions Mr. Creech pointed to in his initial petition

are based upon whether the claims at issue were “ripe at the time of the first petition.”

Opp. 18. That is true, but it misses the mark: it is how Panetti applies to the ripeness

determination that matters here. And outside the Ford context, the circuit courts

disagree on how Panetti should be applied—if at all—to the question of ripeness and,

subsequently, the question of whether a claim is barred as “second or successive”

under 28 U.S.C. § 2244.

As Mr. Creech explained in his initial petition, the Second, Seventh, and

(sometimes) Ninth Circuits have all expanded the reasoning utilized in Panetti to

non-Ford claims. Pet. 7. At least one panel of the Eleventh Circuit has agreed that

Panetti is to be read in an expansive way but was prevented from doing so due to an

internal rule. Id. On the other side of the scales are the Fifth and Sixth Circuits,

which categorically decline to apply Panetti in a non-Ford context. Though it attempts

to reframe the question, the State has failed to show that the rulings from these

circuits may be reconciled. Furthermore, despite the State’s insistence that there is

no split here, Justices on this Court have recognized that the Fifth Circuit, at least,

has erroneously declined to apply Panetti outside the Ford context. See Storey v.

Lumpkin, 142 S. Ct. 2576, 2578 n.1 (2022) (Sotomayor, J., respecting the denial of

certiorari). Tellingly, the State can only fit its portrayal of Fifth Circuit law into its

warped account by accusing the Buntion panel of “ignor[ing]” prior precedent from

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the same court. See Opp. 16. That captures the confusion and uncertainty in the lower

courts as well as anything Mr. Creech himself has said.

In sum, regardless of the State’s belief that it has single-handedly managed to

reconcile the conflicts that this Court and legal scholars have recognized, see Pet. 13–

15, the fact remains that a circuit split exists based on the question Mr. Creech

actually presented to this Court, no matter how the State “wishes to rephrase the

question[,]” Opp. i.

II.

This petition presents an important issue.

The State’s misapprehension of the question Mr. Creech has presented pervade

its arguments that there is no important federal issue here. The divergent

applications of Panetti utilized by the circuit courts to determine ripeness and,

therefore, whether a claim is barred by § 2254 or not, have sweeping implications.

While the State is correct that Mr. Creech pointed to cases involving changes

in forensic evidence, such cases simply serve to illustrate that answering the question

in the petition would foster clarity in successiveness contexts far beyond the evolving

standards of decency. That is to say, if late-evolving facts do not render an evolvingstandards claim successive, they likewise would presumably not render a due process

claim or any other kind successive. The far-reaching nature of Mr. Creech’s question,

coupled with its narrowness and the procedural sleekness of this case as a vehicle,

provide compelling reasons for this Court to grant Mr. Creech’s petition and resolve

this matter here and now. The expenditure of this Court’s valuable time and

resources promotes judicial economy because it will offer the federal judiciary clear

guidance on an issue that affects multiple kinds of claims. Further, to resolve the

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question presented would be to do no more than answer whether or not claims based

upon late-evolving facts are to be heard under AEDPA—this Court need not delve

into the specifics of any one kind of claim.

III.

This case cleanly tees up the question presented.

Relying on conjecture and faulting Mr. Creech for failing to argue the merits

of his underlying claim in his petition for certiorari—a consideration rarely, if ever,

taken into account by this Court in deciding whether to grant certiorari, see S. Ct.

Rule 10—the State complains that Mr. Creech’s case is a poor vehicle for this Court

to resolve the question presented, Opp. 21–24. Given the State’s misconstruction of

the question at issue here, as discussed in Part I, supra, its contentions should be

given little weight by this Court.

Notwithstanding the State’s protestations, this Court is not being called upon

to wade into a quagmire of contested facts and evidence before it even reaches the

question presented. The singular question raised by Mr. Creech’s petition is clear and

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

successive when it is not based on a Ford claim?

It is the State, not Mr. Creech, that attempts to distract the Court with

contested “facts” that have no bearing on the outcome of the question presented. The

State attempts to attack Mr. Creech’s reliance on Arizona’s moratorium, arguing that

“[i]t is entirely possible that, at the end of [Arizona’s] comprehensive study, new

procedures will be implemented, and executions will resume in Arizona.” Opp. 21.

Certainly, anything is possible. In any evolving-standards case, the practice at issue

might resume in one jurisdiction or another. Yet that has never prevented the Court

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from calculating the data as it exists at the time of its decision. Instead of attempting

to discern the future from a crystal ball, this Court deals with the legal landscape as

it finds it. Cf. Pulley v. Harris, 465 U.S. 37, 45 (1984) (“We take statutes as we find

them.”). The State has no way of knowing whether or not the moratorium in Arizona

will continue or for how long. The fact of the matter is that Arizona is currently

refusing to execute judge-sentenced inmates, no crystal ball required.

Similarly, the State’s insistence that it should have been obvious that the

executions of judge-sentenced inmates would dwindle toward zero after this Court

issued its opinion in Ring v. Arizona, 536 U.S. 584 (2002) also disregards the need to

deal with the legal landscape as it is now. Events after Ring could have easily played

out differently. Rather than a slow-march toward zero, as is what occurred, it’s

entirely possible that states could have determined that justice required they

commute death sentences imposed by judges to life-sentences or hold new sentencing

hearings involving juries. Or this Court could have changed its mind and overruled

Ring, as was the case when Ring itself overruled Walton v. Arizona, 497 U.S. 639

(1990), in which this Court upheld judge-sentencing. In short, though the State paints

the aftermath of Ring as “obvious,” it was anything but.

Most significantly of all, the State’s appeal to inevitability is effectively a

theory designed for an alternative reality. If judge-sentenced executions really had

dwindled to zero because of Ring, the State would have a point. But that is not the

world we live in. There are dozens of judge-sentenced inmates on Arizona’s death row.

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

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Rev. L. & Soc. Sci. 539, 551 (2019). The reason none of them have been executed since

January 20, 2023 has nothing to do with Ring. See Schriro v. Summerlin, 542 U.S.

348 (2004) (deeming Ring non-retroactive, and consequently leaving in place every

judge-imposed death sentence in the country). Instead, the reason is the moratorium,

a factor that unquestionably weighs on a prisoner’s side in the evolving-standards

calculus. See Hall v. Florida, 572 U.S. 701, 716 (2014). The State’s discussion of

inevitability is a red herring.

Additionally, following the State’s suggestion that this Court wait for a forensic

science case to determine the question presented, Opp. 21, would likely place it in the

midst of a factual battleground. Such a case would undoubtedly involve experts on

both sides, arguing over whether the “science” was right or wrong—just the kind of

contested facts the State urges this Court to avoid. No such contested facts exist

here—it is undeniable that judge-sentenced executions have dried up entirely.

Finally, it strains credulity to term this petition a “last-minute” gamble to

prevent Mr. Creech’s execution. As the State concedes, there is currently no warrant

to carry out Mr. Creech’s death sentence. Opp. 3, n.1. As such, the State’s reliance on

decisions regarding stay applications is inapposite. Additionally, had Mr. Creech

brought the present petition before this Court in February 2024, when there was a

death warrant pending, the State would have inevitably given us the same, tired

refrain that granting his petition would reward him “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

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federal courts.” Compare Opp. 24 with Br. in Opp. at 20, Creech v. Idaho, No. 23-6791

(U.S., Feb. 26, 2024) (complaining of “piece meal litigation” that “scream[ed] for this

Court to deny [Mr. Creech’s stay] request” and end “decades of unwarranted delay”).

Indeed, it is ironic that the State would accuse Mr. Creech of being interested

only in a stay of execution when he forewent the opportunity to file the certiorari

petition during a pending death warrant and instead submitted it under the typical

timeline for every litigant. It seems that when Mr. Creech brings a petition for

certiorari is of no import to the State, for its real objection is that Mr. Creech dares

to bring a petition at all. There is also something unseemly about the State focusing

on the role played by a potential death warrant when its own lawyers are the ones

who control that timing. What the State really wants is to have the unilateral power

to schedule an execution whenever it wishes and to then accuse Mr. Creech of

somehow prospectively interfering with its plans—an illogical framework that

offends basic notions of fair play.

Despite those feelings on the part of the State, the fact remains that Mr. Creech

filed a strong certiorari petition in the absence of either a scheduled execution or a

request for a stay, and he is entitled to the same consideration as any other party.

The State’s contrary approach is essentially an invitation to offer death-row inmates

a lesser version of constitutional review merely by virtue of their sentences, a notion

that is antithetical to the principle of equal justice under the law and one that flips

on its head the well-established rule that in capital case “the Court has been

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particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia,

428 U.S. 153, 187 (1976) (plurality op.).

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted this 11th day of September 2024.

Jonah J. Horwitz

Counsel of Record

Federal Defender Services of Idaho

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Telephone: 208-331-5530

Facsimile: 208-331-5559

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