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

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

THOMAS E. CREECH,

Petitioner,

v.

STATE OF IDAHO,

Respondent.

On Writ of Certiorari to the

Idaho Supreme Court

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

Garth S. McCarty

Ian H. Thomson

Office of Idaho State Appellate Public Defender

322 E. Front St., Ste. 570

Boise, Idaho 83702

208-334-2712

Counsel for Petitioner

CAPITAL CASE

QUESTION PRESENTED

In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), a four-Justice

plurality of this Court permitted the state of Louisiana to electrocute a Black

teenager under the Eighth Amendment after it tried and failed once before. The

decisive fifth vote in Resweber came from Justice Frankfurter and was premised on

his view that the Eighth Amendment was not incorporated against the States, see

id. at 470–71 (Frankfurter, J., concurring), a proposition rejected by the Court

fifteen years later, see Robinson v. California, 370 U.S. 660, 666–67 (1962). Justice

Frankfurter further noted how “strong” his “personal feeling of revulsion” was at

the “State’s insistence on its pound of flesh.” Resweber, 329 U.S. at 471

(Frankfurter, J., concurring).

The Resweber opinion was released eleven years before this Court centered

its Eighth Amendment jurisprudence on “the evolving standards of decency that

mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). In

the seventy-eight years that have elapsed since Resweber, this Court has never

again taken up the question of whether multiple execution attempts can violate the

Eighth Amendment. During the modern era of the death penalty, only two inmates

have ever been executed after surviving an earlier attempt, out of more than 1,600

prisoners who have been put to death during the same period of time. In both cases,

states used a different method than the one that had previously failed.

Petitioner Thomas Creech is the only American inmate since Willie Francis

who has been threatened by the same execution method used against him once

before. Because “Resweber . . . remains good law,” the Idaho Supreme Court

rebuffed Mr. Creech’s Eighth Amendment claim in the absence of an evidentiary

hearing and without any consideration of the evolving standards of decency. Creech

v. State, 558 P.3d 723, 733 (Idaho 2024).

The question presented is:

Should Resweber be overruled?

PETITION FOR WRIT OF CERTIORARI – Page i

PARTIES TO THE PROCEEDINGS BELOW

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

RELATED PROCEEDINGS

United States District Court, District of Idaho

Case No. 1:24-cv-485

Creech v. Valley

Petition pending

Idaho Supreme Court

Case No. 52327

Creech v. State

Opinion denying relief issued Nov. 5, 2024

Idaho Supreme Court

Case No. 52373

Creech v. Valley

Opinion denying relief issued Nov. 27, 2024

Ada County District Court, Idaho

Case No. CV01-24-4845

Creech v. State

Petition denied, Sept. 5, 2024

Ada County District Court, Idaho

Case No. CV01-24-18351

Creech v. State

Petition Denied Oct. 30, 2024

PETITION FOR WRIT OF CERTIORARI – Page ii

TABLE OF CONTENTS

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

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

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

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

TABLE OF CONTENTS ............................................................................................... iii

APPENDICES............................................................................................................... iv

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

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

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

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

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

STATEMENT OF THE CASE....................................................................................... 1

REASONS FOR GRANTING THE WRIT .................................................................... 4

I.

Resweber tarnishes the Court’s legacy. ................................................... 5

II.

Resweber is impeding the development of the law................................ 11

III.

This case is an ideal vehicle for revisiting Resweber. ........................... 16

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

PETITION FOR WRIT OF CERTIORARI – Page iii

APPENDICES

APPENDIX A:

Opinion

Idaho Supreme Court, Case No. 52327

Nov. 5, 2024……………………………………………. App. 001–018

APPENDIX B:

Memorandum Decision and Order

On Motion for Summary Dismissal

Ada County District Court, No. CV01-24-4845

Sept. 5, 2024………………………………………...… App. 019–033

APPENDIX C:

Order Denying Motion to Reconsider

Ada County District Court, No. CV01-24-4845

Oct. 16, 2024…………………………………………… App. 034–039

APPENDIX D:

Petition for Post-Conviction Relief

[without exhibits]

Ada County District Court, No. CV01-24-4845

Mar. 18, 2024…………………………………………… App. 040–060

APPENDIX E:

Petitioner’s Response to State’s Motion for

Summary Disposition

Ada County District Court, No. CV01-24-4845

Aug. 1, 2024 …………………………………………… App. 061–077

APPENDIX F:

Respondent’s Brief

Idaho Supreme Court, Case No. 52327

Oct. 24, 2024…………………………………………… App. 078–109

PETITION FOR WRIT OF CERTIORARI – Page iv

TABLE OF AUTHORITIES

U.S. Supreme Court Opinions

Atkins v. Virginia, 536 U.S. 304 (2002) .................................................................... 14

Coker v. Georgia, 433 U.S. 584 (1977) ....................................................................... 14

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 ....................................... 10–11

Hall v. Florida, 572 U.S. 701 (2014) ......................................................................... 15

Flowers v. Mississippi, 588 U.S. 284 (2019) ........................................................... 5–6

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................. 14

Graham v. Florida, 560 U.S. 48 (2010) ..................................................................... 16

Harrington v. Richter, 562 U.S. 86 (2011) .......................................................... 16–17

In re Kemmler, 136 U.S. 436 (1890) .......................................................................... 13

Kennedy v. Louisiana, 554 U.S. 407 (2008) .............................................................. 14

Korematsu v. United States, 323 U.S. 214 (1944) ..................................................... 11

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) .............................. passim

Miranda v. Arizona, 384 U.S. 436 (1966) ................................................................... 6

Montana v. Egelhoff, 518 U.S. 37 (1996) .................................................................. 10

Peede v. Jones, 585 U.S. 1025 (2018) ........................................................................ 17

Plessy v. Ferguson, 163 U.S. 537 (1896) .................................................................... 11

Robinson v. California, 370 U.S. 660 (1962) .......................................................... i, 10

Roper v. Simmons, 543 U.S. 551 (2005) ...................................................................... 5

Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll.,

600 U.S. 181 (2023) ......................................................................................... 11

Taylor v. Louisiana, 419 U.S. 522 (1975) ................................................................... 6

Trop v. Dulles, 356 U.S. 86 (1958) .......................................................................... i, 14

United States v. Briggs, 592 U.S. 69 (2020) ........................................................ 14–15

Vasquez v. Hillery, 474 U.S. 254 (1986) .................................................................... 12

Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................... 7

Lower Federal Court Opinions

Broom v. Shoop, 963 F.3d 500 (6th Cir. 2020) .......................................................... 12

Creech v. Richardson, 59 F.4th 372 (9th Cir. 2023) ........................................... 1, 2, 3

Smith v. Hamm, No. 2:22-cv-497, 2023 WL 4353143

(M.D. Ala. July 5, 2023) ............................................................................ 13–14

PETITION FOR WRIT OF CERTIORARI – Page v

Federal Constitutional Provisions

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

Federal Statutes

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

28 U.S.C. § 2254 ......................................................................................................... 16

State Cases

Creech v. State, 558 P.3d 723 (Idaho 2024) ........................................................ passim

Raudebaugh v. State, 21 P.3d 924 (Idaho 2001) ....................................................... 19

Smith v. State, 396 So.3d 400 (Ala. Crim. App. 2023) ....................................... 12, 16

State v. Broom, 51 N.E.3d 620 (Ohio 2016) .................................................... 5, 6, 7, 9

Secondary Sources

Arthur Selwyn Miller, A “Capacity for Outrage”: The Judicial Odyssey of J.

Skelly Wright (Greenwood Press 1984) ............................................................ 8

Arthur S. Miller & Jeffrey H. Bowman, “Slow Dance on the Killing Ground”: The

Willie Francis Case Revisited, 32 DePaul L. Rev. 1 (1982) ..................... 6–7, 9

Arthur S. Miller & Jeffrey H. Bowman, Death by Installments

(Greenwood Press 1988) ............................................................................ 5, 6, 8

Deborah W. Denno, When Willie Francis Died: The “Disturbing” Story Behind One

of the Eighth Amendment’s Most Enduring Standards of Risk, Death Penalty

Stories (2009) .......................................................................................... 6, 12, 15

Eric L. Muller, 12/7 and 9/11: War, Liberties, and the Lessons of History,

104 W. Va. L. Rev. 571 (2002) .................................................................. 11–12

Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159 (2021) ...... 17

PETITION FOR WRIT OF CERTIORARI – Page vi

INTRODUCTION

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

certiorari to review the judgment of the Idaho Supreme Court.

OPINION BELOW

A copy of the Idaho Supreme Court opinion below is attached as Appendix A,

App. 1–18, and is available at Creech v. State, 558 P.3d 723 (Idaho 2024). 1

JURISIDICTIONAL STATEMENT

On November 5, 2024, the Idaho Supreme Court issued an opinion denying

Mr. Creech relief. See App. 1–18. This Court has jurisdiction pursuant to 28

U.S.C. § 1257(a). On January 15, 2025, Justice Kagan extended the time by which

Mr. Creech could file a certiorari petition to April 4, 2025. The petition is timely

filed.

CONSTITUTIONAL PROVISION INVOLVED

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

which provides: “Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

STATEMENT OF THE CASE

In 1981, Thomas Creech pled guilty to murdering fellow inmate David Jensen

and he was sentenced to death for the offense in Idaho state court. See Creech v.

Richardson, 59 F.4th 372, 376 (9th Cir. 2023). Mr. Creech’s criminal proceedings

1 In this petition, unless otherwise noted, all internal quotation marks are omitted,

all emphasis is added, and all citations are cleaned up.

PETITION FOR WRIT OF CERTIORARI – Page 1

are not relevant to the issue presented here. Instead, the certiorari petition is

focused on Idaho’s attempts to execute Mr. Creech.

Those attempts began in earnest on January 30, 2024. That day, Idaho

obtained a death warrant for Mr. Creech, setting his execution for February 28,

2024. App. 45. After the warrant was issued, Mr. Creech was moved to a cell at FBlock, the freestanding building at the Idaho Maximum Security Institution that

houses the execution chamber. Id. While under warrant, Mr. Creech had to make a

number of arrangements for his death. For example, prison staff asked Mr. Creech

what his autopsy plans were and how he wished to dispose of his property. App. 46.

Mr. Creech was also asked to select witnesses and a spiritual advisor to attend his

execution. Id. On February 7, 2024, the Warden escorted Mr. Creech to the

execution chamber to give him a “tour.” Id. There, the Warden showed Mr. Creech

the spot where his wife of more than twenty-five years, LeAnn Creech, would be

sitting and watching her husband be killed. Id. The day before his execution,

virtually all of Mr. Creech’s property was removed from the prison and taken to the

offices of his legal team. Id.

On the day and night leading up to the scheduled execution, Mr. Creech was

visited by members of his legal teams and by his wife. Id. During those visits, Mr.

Creech had in-person goodbyes with thirteen different members of his legal teams,

including attorneys, investigators, and paralegals. App. 46–47. On the morning of

the execution, Mr. Creech said a final goodbye to the members of his legal team on

PETITION FOR WRIT OF CERTIORARI – Page 2

the phone after they advised him that all of his requests for stays of execution had

been denied. App. 47.

At 10 AM on February 28, 2024, Mr. Creech was brought into the execution

chamber on a gurney and strapped to a table. Id. Fourteen people had been

assembled to watch Mr. Creech die. App. 47–48. Mr. Creech could see his wife’s face

from the execution table, where he detected a look of “total devastation.” App. 48.

For nearly an hour, the executioners prodded Mr. Creech’s body with needles while

they searched unsuccessfully for a vein in which to pump the lethal chemicals. App.

49. Every time he felt a prick, Mr. Creech believed the drugs were being pumped

into his body. Id. At approximately 10:58 AM, the Warden announced that the

execution was being called off. App. 50.

Since the failed execution, Mr. Creech has dealt with severe anxiety and

paranoia. Id. He suspects the prison is trying to poison his food or planning on

orchestrating his killing by another inmate. Id. Every evening, he has nightmares.

Id. In them, he is sometimes strapped to the execution gurney. Id. Other

nightmares revolve around an image of his late wife’s face and the way it looked

during the execution. Id. The world now feels unreal to Mr. Creech, and he often

believes he actually did die at his execution. App. 51. He is drawn to the window

overlooking the death house, which he watches constantly. Id.

On March 18, 2024—only nineteen days after the failed execution—Mr.

Creech filed the post-conviction petition below, challenging any subsequent attempt

to execute him under the Eighth Amendment. App. 40–60. In ruling on the petition,

PETITION FOR WRIT OF CERTIORARI – Page 3

the trial court accepted “that enduring one execution attempt and facing another

has traumatized Creech.” App. 26. Nevertheless, relying on Resweber and cases

interpreting it, the court summarily denied relief on the Eighth Amendment claim.

App. 27–28. Mr. Creech appealed, and the Idaho Supreme Court rebuffed the

Eighth Amendment claim on the merits. See Creech, 558 P.3d at 730–33. Like the

trial judge, the Idaho Supreme Court felt obligated by Resweber to reject the claim

without an evidentiary hearing. See id. Mr. Creech now seeks certiorari review.

REASONS FOR GRANTING THE WRIT

Resweber is a blemish on this Court’s reputation. The Court there invited the

state of Louisiana to electrocute to death a Black teenager after it tried and failed

once before, and without allowing him to present any evidence about the pain and

suffering he would endure as a result. As with other dark chapters in the Court’s

history, Resweber should be stricken from the books so as to improve the public’s

faith in the judiciary and the Justices’ willingness to confess their own errors.

Apart from the fact that Resweber’s result is objectionable standing on its

own, the opinion is also standing in the way of the law. Courts around the country

have used Resweber to reflexively turn aside Eighth Amendment challenges to

multiple execution attempts without any evidentiary development. As a result, no

judicial inquiries are taking place to demarcate the line between torture and a

legitimate second execution attempt. Resweber is effectively being treated, and was

so in this case below, as though it stands for the proposition that repeat execution

efforts can never violate the Eighth Amendment. That cannot possibly be the law,

PETITION FOR WRIT OF CERTIORARI – Page 4

and in order to figure out where the boundary lies, the obstruction—Resweber—

must be lifted.

The present case is an exemplary opportunity for the Court to do just that.

Below, the Idaho Supreme Court denied relief squarely on the merits while directly

invoking Resweber. Because this case comes here from state court, the onerous

federal habeas standard is irrelevant. And none of the additional cognizability

issues or procedural doctrines that have complicated other similar certiorari

petitions are present now. The case at bar gives the Court a chance to reexamine a

highly problematic precedent without any distractions.

I.

Resweber tarnishes the Court’s legacy.

For three-quarters of a century, Resweber has been on the books even though,

with the benefit of hindsight, it is a thoroughly outdated relic from a rightfully

bygone era. That is long enough.

Willie Francis was a Black boy accused of murdering Andrew Thomas, a

White pharmacist, when he was fifteen years old in 1944 Louisiana. See Arthur S.

Miller & Jeffrey H. Bowman, Death by Installments 20 (Greenwood Press 1988)

(hereinafter “Death by Installments”). “If Willie Francis had been tried for his

alleged crime today, he would not have been sent to the electric chair the first time.”

State v. Broom, 51 N.E.3d 620, 640 (Ohio 2016) (O’Neill, J., dissenting). For

starters, the Court has since outlawed the execution of juveniles. See Roper v.

Simmons, 543 U.S. 551, 578 (2005). What is more, Francis was “convicted by an allwhite, all-male jury,” Broom, 51 N.E.3d at 640 (O’Neill, J., dissenting), which

likewise reflects the case’s connections to a legal past that we properly left behind

PETITION FOR WRIT OF CERTIORARI – Page 5

many years ago, see Flowers v. Mississippi, 588 U.S. 284, 301 (2019) (“Equal justice

under law requires a criminal trial free of racial discrimination in the jury selection

process.”); see also Taylor v. Louisiana, 419 U.S. 522, 533 (1975) (“[W]omen cannot

be systematically excluded from jury panels from which petit juries are drawn.”). To

get him to that jury, the state of Louisiana interrogated Francis while he was jailed

for a month without charges and without access to counsel. See Deborah W. Denno,

When Willie Francis Died: The “Disturbing” Story Behind One of the Eighth

Amendment’s Most Enduring Standards of Risk, Death Penalty Stories 17, 35

(2009), available at https://ir.lawnet.fordham.edu/faculty_scholarship/975/

(hereinafter “Denno”). Such an ordeal would have been unconstitutional only twenty

years later. See Miranda v. Arizona, 384 U.S. 436, 439 (1966).

Francis did not meet with his lawyers until less than a week before his trial

for first-degree murder. See Denno, supra, at 35. At trial, those lawyers “put up no

defense despite a glaring lack of evidence.” Broom, 51 N.E.3d at 640 (O’Neill, J.,

dissenting). Defense counsel waived their opening statement and called no

witnesses, notwithstanding the availability of an individual who could have spoken

to inconsistencies in Francis’s confession and in the prosecution’s narrative. See

Death by Installments, supra, at 24–26. One of many avenues unexplored by defense

counsel was the strong likelihood that the victim had abused Francis. In his

confession, Francis wrote that “it was a secret about me” the victim. Arthur S.

Miller and Jeffrey H. Bowman, “Slow Dance on the Killing Ground”: The Willie

Francis Case Revisited, 32 DePaul L. Rev. 1, 46 (1982), available at

PETITION FOR WRIT OF CERTIORARI – Page 6

https://via.library.depaul.edu/law-review/vol32/iss1/2 (hereinafter “Slow Dance”).

Yet, Francis’s attorneys did no investigation into what Francis meant by this. It was

only decades later that an employee of victim’s, Stella Vincent, admitted that she

had seen “an incident involving Andrew Thomas and Willie Francis, an incident

followed by the druggist yelling and lashing out at the boy.” Gilbert King, The

Execution of Willie Francis: Race, Murder, and the Search for Justice in the

American South 265–67 (Basic Civitas 2008) (hereinafter “King”). This episode was

so upsetting that Stella quit the pharmacy the same night. Id.

Given these flagrant oversights, Francis was inevitably convicted and then

“received a mandatory death sentence,” Broom, 51 N.E.3d at 640 (O’Neill, J.,

dissenting)—another feature of his case that would be called out today as blatantly

unconstitutional under long-established precedent, see Woodson v. North Carolina,

428 U.S. 280, 305 (1976) (plurality op.). After being sentenced, Francis “was not

informed of his rights to appeal or to appointed counsel for that purpose,” and as a

consequence his highly questionable punishment was untested by any further

litigation. Broom, 51 N.E.3d at 640 (O’Neill, J., dissenting). Justice O’Neill

concluded his recitation of the facts in Resweber with the incredulous remark that

“this is the case” his colleagues in the majority had “relie[d] upon to suggest that

due process is alive and well in Ohio.” Id. (O’Neill, J., dissenting).

The enforcement of Francis’s death sentence was as reprehensible as the

context from which it emerged. Indeed, the state of Idaho itself has acknowledged

the “gruesome facts” associated with Francis’s execution. App. 95–97. In his

PETITION FOR WRIT OF CERTIORARI – Page 7

dissenting opinion, Justice Burton described the disturbing nature of Francis’s

botched execution. See Resweber, 329 U.S. at 480 n.2 (Burton, J., dissenting). When

the electricity was switched on, “Willie Francis’ lips puffed out and he groaned and

jumped so that the chair came off the floor.” Id. (Burton, J., dissenting). Francis

“was jumping and kicking so much that he’d ultimately lifted the 300-pound chair

six inches off the ground—it had made a full quarter turn before coming to rest.”

King, supra, at 240. The chaplain who was present noted that Francis’s “body

squirmed and tensed and he jumped so that the chair rocked on the floor.”

Resweber, 329 U.S. at 480 n.2 (Burton, J., dissenting).

Other facts surrounding the execution speak further to what a sordid

spectacle it was. For one thing, “the two men who had set up the electric chair were

drunk.” Arthur Selwyn Miller, A “Capacity for Outrage”: The Judicial Odyssey of J.

Skelly Wright 24 (Greenwood Press 1984) (hereinafter “Miller”). George Etie, the

owner of a local tavern, had been out drinking with the two executioners the

morning before the execution and noted that the two men “were so drunk that it

was impossible for them to have known what they were doing.” King, supra, at 239–

40. After seeing that Francis was still alive, the executioner upped the voltage and

yelled “I’m giving you all I got now.” Death by Installments, supra, at 9. When the

executioner finally gave up, he “snarled that he would try again and if the chair still

did not work, he would kill Willie with a rock.” Miller, supra, at 25.

An observer summed up the events succinctly and captured both the macabre

nature of the physical event and the racist atmosphere of the case as a whole: “This

PETITION FOR WRIT OF CERTIORARI – Page 8

boy really got a shock when they turned that machine on.” Resweber, 329 U.S. at

480 n.2 (Burton, J., dissenting). As Justice O’Neill aptly put it: “The Willie Francis

case . . . magnifies the problems of cruelty and racial injustice in one package.”

Broom, 51 N.E.3d at 640 (O’Neill, J., dissenting).

Just as we have a new vantage point to assess the disturbing events

approved of in Resweber, so too for the law. The result in Resweber was

unquestionably the product of a now long-outmoded conception of constitutional

law. In Resweber, four dissenting Justices had no difficulty identifying the grisly

details sketched out above as “cruel and unusual.” 329 U.S. at 476 (Burton, J.,

dissenting). The only reason Justice Frankfurter did not join them was because he

was asking a different constitutional question. In his view, the Eighth Amendment

had not been incorporated against the States. See id. at 470–71 (Frankfurter, J.,

concurring). Had Justice Frankfurter approached the case through the lens of the

Eighth Amendment, there is little doubt he would have embraced the dissenters’

characterization of a subsequent execution attempt as cruel and unusual. For he

went out of his way to flag how “strong” his “personal feeling of revulsion” was at

the “State’s insistence on its pound of flesh.” Id. at 471 (Frankfurter, J., concurring).

Privately, Justice Frankfurter wrote to Justice Burton, “I am sorry I cannot go with

you, but I am weeping no tears that you are expressing a dissent.” Slow Dance,

supra, at 73. In another letter to his colleague, Justice Frankfurter confessed: “I

have to hold onto myself not to reach your result.” Id. at 23, 71. Nevertheless,

Justice Frankfurter considered himself limited to the test for substantive due

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process violations. Compare Resweber, 329 U.S. at 470–71 (concluding that Francis

had not shown the transgression of “a principle of justice so rooted in the traditions

and conscience of our people”), with Montana v. Egelhoff, 518 U.S. 37, 43 (1996)

(formulating the standard for substantive due process violations in the same terms).

If Justice Frankfurter had been participating in the Resweber appeal only fourteen

years later, he would instead have utilized the Eighth Amendment, and the

majority would have flipped. See Robinson v. California, 370 U.S. 660, 666–67

(1962) (holding that the Eighth Amendment was incorporated against the States by

the Due Process Clause). In fact, “the Willie Francis case weighed so heavily on

[Justice Frankfurter’s] conscience that he convinced a former Harvard law school

classmate, a leading member of the Louisiana bar, to seek clemency on Francis’s

behalf.” Broom, 51 N.E.3d at 641 (O’Neill, J., dissenting). Justice Frankfurter made

those arrangements because he thought the “Governor of Louisiana ought not to let

Francis go through the ordeal again.” Miller, supra, at 33. It makes little sense to

hew to the formal outcome in Resweber when, under current law, the result would

have been the opposite. See Broom, 51 N.E.3d at 641 (O’Neill, J., dissenting)

(commenting that, in Resweber, “five of the justices were able to recognize the

second attempt for what it was: torture”).

Overruling Resweber would be in keeping with the Court’s finest tradition.

When there has been “a sea change in this Court’s interpretation of the

Constitution,” it is appropriate to reevaluate the precedents that grew out of the

abandoned cases. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 358

PETITION FOR WRIT OF CERTIORARI – Page 10

(Roberts, C.J., concurring); accord id. at 389 (Breyer, J., dissenting) (agreeing that

stare decisis sometimes yields when there has been “a change in legal doctrine that

undermined or made obsolete the earlier decision”). Like Plessy v. Ferguson, 163

U.S. 537 (1896), Resweber is an “infamous[]” artifact from the Jim Crow era.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600

U.S. 181, 246 (2023) (Thomas, J., concurring). And like in Plessy, “[h]istory has

vindicated” the dissenters. Id. Resweber should be thrown in the same dustbin.

The final word on this point belongs to Willie Francis himself. Reflecting with

extraordinary generosity of spirit on the opinion by this Court that condemned him

to be put to death a second time, Francis made clear that he was “not complaining

or anything like that, because I know down in my heart everybody has tried to do

the right thing for me and for everybody else.” Demands of the Dead: Executions,

Storytelling, and Activism in the United States 44 (Katy Ryan ed., Univ. of Iowa

Press 2012). Francis reconciled himself to the reality “that there has never been

another case like mine before and I see how hard it is to say what is the right thing

in my case.” Id. It is hard, but the right thing remains overruling Resweber and

turning the page on a dark chapter in the Court’s history.

II.

Resweber is impeding the development of the law.

It is not only this Court’s reputation that would benefit from the abrogation

of Resweber, but the law. This is not a situation like with Korematsu v. United

States, 323 U.S. 214 (1944). There the Court avoided overruling an indefensible

precedent “primarily because it ha[d] not needed to,” since similar facts never again

arose. Eric L. Muller, 12/7 and 9/11: War, Liberties, and the Lessons of History, 104

PETITION FOR WRIT OF CERTIORARI – Page 11

W. Va. L. Rev. 571, 586 (2002). Quite to the contrary, Resweber is actively

preventing serious constitutional claims from receiving meaningful judicial

scrutiny.

Four appellate opinions prove the point. In each of them, courts leaned

heavily on Resweber while summarily casting aside Eighth Amendment challenges

to multiple execution attempts without permitting any evidentiary development.

See Creech, 558 P.3d at 732–33; Smith v. State, 396 So.3d 400, 405–07 (Ala. Crim.

App. 2023); Broom v. Shoop, 963 F.3d 500, 511–13 (6th Cir. 2020); Broom, 51

N.E.3d at 628–33. These courts gleaned from Resweber the categorical rule that a

second execution attempt is always and everywhere constitutional. See, e.g., Smith,

396 So.3d at 405 (“If it is not cruel and unusual punishment to execute an inmate

who has been subjected to a current of electricity in a previous failed attempt, then

it is certainly not cruel and unusual punishment to execute an inmate after the

failure to insert an IV line in a previous failed execution attempt.”).

The consensus in the lower courts that Resweber represents a blanket

prohibition on multiple-execution Eighth Amendment claims is doubly wrong. Once

because, as noted above, there was no majority holding on the Eighth Amendment

in Resweber at all. See Vasquez v. Hillery, 474 U.S. 254, 261 n.4 (1986) (referring to

the baseline principle that an “opinion joined by five Justices” is what “carr[ies] the

force of law”). As one respected commentator has observed, many courts have

mistakenly regarded Resweber as precedent and, “[r]egrettably, some of this

reliance has been erroneous or misleading.” Denno, supra, at 88. And the consensus

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is also wrong because it cannot be the law that every second execution attempt is

constitutional. There is no question that “[p]unishments are cruel when they involve

torture or a lingering death.” In re Kemmler, 136 U.S. 436, 447 (1890). Surely there

are scenarios in which repeat execution attempts cross the line into torture. See

Resweber, 329 U.S. at 477 (Burton, J., dissenting) (“If the state officials deliberately

and intentionally had placed the relator in the electric chair five times and, each

time, had applied electric current to his body in a manner not sufficient, until the

final time, to kill him, such a form of torture would rival that of burning at the

stake.”).

Yet Resweber is serving as the justification for lower courts’ wholesale refusal

to police that constitutional boundary. The dynamic is unsurprising. In Resweber

itself, the plurality rendered its decision without the benefit of a hearing below. See

id. at 472 (Burton, J., dissenting) (protesting the plurality’s opinion because it was

issued without “the determination of certain material facts not previously

determined,” as in a capital case “there must be no avoidable error of law or

uncertainty of fact”). That same fact-free method is having a baleful effect on the

lower courts. Consider the predicament of Kenneth Smith. As mentioned earlier,

the Alabama Court of Criminal Appeals perfunctorily discounted Smith’s multipleexecution claim in light of Resweber. But Smith had asserted numerous detailed

facts about his botched execution to show how much pain and suffering it entailed.

According to Smith’s complaint, his executioners slid needles back and forth under

his skin, tilted him back in his “gurney in an inverse crucifixion position,” and then

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approached him with “the biggest needle he had ever seen,” whereupon he “could

feel the needle sliding under his collarbone,” leaving him “in such physical pain that

he had difficulty breathing” and “was writhing and shaking uncontrollably.” Smith

v. Hamm, No. 2:22-cv-497, 2023 WL 4353143, at *4 (M.D. Ala. July 5, 2023).

Perhaps a court might find, after hearing all the facts at a full and fair trial, that

Smith’s experience wasn’t torturous in the constitutional sense. Still, it strains

credulity to maintain, as the Alabama state court did, that Smith’s ordeal could not

have been unconstitutional because of what happened to Francis on the electric

chair in 1947. If Resweber is removed from the equation, the lower courts can do

their jobs in these cases properly and adjudicate Eighth Amendment claims on their

own facts rather than on facts from an unrelated case eight decades old.

Resweber is stymying the law in another respect as well: by keeping the

evolving standards of decency out of judicial analyses when it should be at the

forefront. Since 1958, the Eighth Amendment has been tethered to “the evolving

standards of decency that mark the progress of a maturing society.” Trop, 356 U.S.

at 101. In the years that followed, this Court has struck down the death penalty in

numerous settings for the sole reason that it was, as used against a particular

prisoner, inconsistent with the evolving standards of decency. See, e.g., Kennedy v.

Louisiana, 554 U.S. 407, 419–47 (2008); Atkins v. Virginia, 536 U.S. 304, 311–12

(2002); Ford v. Wainwright, 477 U.S. 399, 406–18 (1986); Coker v. Georgia, 433 U.S.

584, 593–99 (1977) (plurality op.). Only four years ago, the Court reaffirmed that

the evolving-standards line of cases remains in force. See United States v. Briggs,

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592 U.S. 69, 76 (2020). The evolving standards do not appear in Resweber, as the

phrase was first coined eleven years later. Nor are the evolving standards

considered in any of the multiple-execution cases from the lower courts discussed

above.

The most notable cameo for the evolving standards of decency in a multipleexecution case was below. There, the opinion nodded to Mr. Creech’s contention

“that when the Supreme Court decided Resweber, Eighth Amendment jurisprudence

had yet to incorporate evolving standards of decency into its analysis.” Creech, 558

P.3d at 733. “Nevertheless,” the court continued, “Resweber, for all of Creech’s

misgivings, remains good law.” Id. The Idaho Supreme Court’s commentary neatly

encapsulates the trouble with Resweber. It has given lower courts license to

disregard the constitutional doctrine that is binding on them. Moreover, it is doing

so in a particularly perverse fashion. The central purpose of the evolving standards

is to ensure that the Eighth Amendment does not become “fastened to the obsolete

but may acquire meaning as public opinion becomes enlightened by a humane

justice.” Hall v. Florida, 572 U.S. 701, 708 (2014). Despite that commitment, lower

courts are using Resweber to reject multiple-execution claims by ignoring everything

that has happened in the world since 1947 and relying on a case in which a Black

teenager was electrocuted twice by a deep southern state. See Denno, supra, at 93

(remarking that the “society” at issue in Resweber “did not represent progress either

legally or socially”).

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“Society changes.” Graham v. Florida, 560 U.S. 48, 85 (2010). The law of

multiple execution attempts does not—until Resweber is reexamined by the Court.

III.

This case is an ideal vehicle for revisiting Resweber.

Mr. Creech’s case nicely tees up the continued vitality of Resweber, both

because there are no procedural obstacles to its consideration and because the Idaho

Supreme Court’s opinion below embodies all of the problems with Resweber.

As to the former, this is as clean an appeal as the Court will ever get on

Resweber. The Idaho Supreme Court expressly found that Mr. Creech employed the

proper vehicle for his Eighth Amendment claim. See Creech, 558 P.3d at 728–30.

There were no procedural impediments to the court’s review of the claim, such as a

statute of limitations or restrictions on successive petitions. Compare with Smith,

396 So.3d at 403–05 (faulting a petitioner who asserted a similar claim for

insufficiently pleading it under state law). Rather, the Idaho Supreme Court

unambiguously reached the merits of the Eighth Amendment issue. See Creech, 558

P.3d at 732–33.

The fact that this case arises from state court also recommends it for

certiorari review. In the Broom case, for instance, the Resweber issue was presented

in a certiorari petition framed by the federal habeas standard of review. See Broom

v. Shoop, No. 20-6419, Petition for Certiorari, Nov. 19, 2020, at i (articulating the

question presented as whether Resweber was “the clearly established United States

Supreme Court precedent, for purposes of 28 U.S.C. § 2254(d)” on repeat execution

attempts). That standard is highly deferential, which inhibits the Court from

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reaching the underlying questions in a straightforward way that advances the law.

See Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining

habeas corpus from a federal court, a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.”); see also Peede v. Jones, 585 U.S.

1025, 1026 (2018) (Sotomayor, J., respecting the denial of certiorari) (“Considering

the posture of this case, under which our review is constrained by the [federal

habeas standards], I cannot conclude the particular circumstances here warrant

this Court’s intervention,” even though the decision below was “deeply

concerning.”). To avoid the complications of federal habeas jurisprudence, this Court

has increasingly accepted review of state post-conviction matters. See Z. Payvand

Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 163 (2021). It should do

so here.

In addition to its procedural suitability, the way in which the case was

resolved below makes it a strong candidate for certiorari review. The Idaho

Supreme Court’s opinion reflects all the negative impacts that Resweber has had on

the law. To begin, the Idaho Supreme Court linked its result tightly to Resweber,

declaring that the decision “remains good law.” Creech, 558 P.3d at 733. Resweber is

accordingly front and center in the proceedings. The Idaho Supreme Court also

correctly identified Mr. Creech’s invocation of the “evolving standards of decency”

only to decline to apply them, in the face of decades of controlling precedent to the

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contrary. Id. at 733. As a consequence, the case directly implicates the dynamic by

which Resweber has frozen the law in this area in a time capsule from 1947.

Factually, too, this case is the right fit for the question presented. Mr. Creech

alleged in his post-conviction petition that “[i]t would constitute the unnecessary

and wanton infliction of pain” for Idaho “to attempt to execute him by any method

after subjecting him to the psychological torment of the botched execution.” App. 52.

He recited at length the facts showing the distress that an anticipated execution,

after the botch, was causing him, including paranoia, nightmares, delusions, and

obsessiveness. App. 50–51. Idaho’s judges had no quarrel with Mr. Creech’s

presentation. The trial court understood “that enduring one execution attempt and

facing another has traumatized Creech.” App. 26. So did the Idaho Supreme Court:

it took “as true Creech’s allegations that he experienced the pain and ongoing

psychological distress that he described.” Creech, 558 P.3d at 731. There are thus no

messy factual disputes to interfere with this Court’s consideration of the legal issue.

Finally, the Idaho Supreme Court’s handling of the evidentiary-hearing

question perfectly crystallizes how Resweber is blocking the development of the law.

The Idaho Supreme Court discerned in Resweber a requirement that challenges of

this type must aver that “the State is pursuing the second” execution attempt “to

intentionally or maliciously inflict unnecessary pain.” Id. As it happens, Mr. Creech

made precisely that allegation. He took the position in the trial court that a “second

attempt would be conducted with full knowledge and deliberation,” as Idaho would

now be aware of “the certain pain, terror and trauma” it would be inflicting on Mr.

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Creech. App. 69. To the Idaho Supreme Court, this was not enough, as “the record

. . . did not support . . . a finding” of such malice. Creech, 558 P.3d at 733. But it was

the Idaho Supreme Court itself that deprived Mr. Creech of the ability to make that

record, as it withheld from him the evidentiary hearing he sought. See id. at 730–

32. Mr. Creech had no ability to elicit evidence from correctional officials about their

state of mind in the absence of a hearing. See Raudebaugh v. State, 21 P.3d 924, 927

(Idaho 2001) (underscoring how a post-conviction petitioner in Idaho is not entitled

to discovery as a matter of course but only when it “is necessary to protect” his

“substantial rights”). The Idaho Supreme Court put Mr. Creech in Catch 22,

insisting that he present evidence while rendering it unavailable.

Resweber is the source of that Catch 22. In Resweber, the plurality declared

in the absence of an evidentiary hearing that there was “no purpose to inflict

unnecessary pain nor any unnecessary pain involved in the proposed execution.”

329 U.S. at 464. The Resweber Court thereby invited judges from around the

country to reject serious Eighth Amendment claims based on factual presumptions

that are entirely untested by the adversarial process. Cf. Broom, 51 N.E.3d at 80

(French, J., dissenting) (criticizing the majority for denying relief under Resweber

without a hearing by “mak[ing] its own assessment without a record or input from

the parties”). In short, Resweber is short-circuiting the judicial process in these

cases, it did so below, and Mr. Creech’s petition therefore offers an excellent

occasion for the Court to set things right.

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CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted this 26th day of March 2025.

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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