Creech v. Richardson

• Decision Date: 20 July 2022
• Docket Number: 10-99015
• Citation: 40 F.4th 1013
• Parties: Thomas E. CREECH, Petitioner-Appellant, v. Tim RICHARDSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

40 F.4th 1013

Thomas E. CREECH, Petitioner-Appellant,

v.Tim RICHARDSON, Warden, Respondent-Appellee.

No. 10-99015

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 20, 2021 Pasadena, California

Filed July 20, 2022

Jonah J. Horwitz (argued), Bruce D. Livingston, and Teresa A. Hampton, Federal Defender Services of Idaho, Capital Habeas Unit, Boise, Idaho; Denise Young, Tucson, Arizona; for Petitioner-Appellant.

L. LaMont Anderson (argued), Chief, Capital Litigation Unit; Lawrence G. Wasden, Attorney General; Attorney General's Office, Boise, Idaho; for Respondent-Appellee.

Before: William A. Fletcher, Jay S. Bybee, and Morgan Christen, Circuit Judges.

W. FLETCHER, Circuit Judge:

Petitioner-Appellant Thomas Eugene Creech appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. In 1981, while serving two life sentences for multiple convictions of first-degree murder, Creech beat a fellow inmate to death. After pleading guilty, he was sentenced to death in Idaho state court. Creech obtained federal habeas relief with respect to his sentence. He was resentenced to death in 1995. After the reimposition of the death penalty in 1995, in a second petition Creech unsuccessfully sought federal habeas relief in federal district court.

The district court granted certificates of appealability ("COAs") as to two issues, and Creech appeals both of those issues. First, Creech argues that the district court improperly denied part of Claim 4 of his habeas petition, in which he alleges that his attorneys provided ineffective assistance of counsel ("IAC") at his 1995 resentencing. Second, Creech argues under Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), that five allegedly procedurally defaulted sub-claims of IAC at the 1995 resentencing should be heard on the merits.

In addition, Creech seeks to appeal four uncertified issues. First, Creech argues that the district court erred in summarily denying reconsideration of its decision denying relief under Martinez . Second, Creech argues that the Idaho courts unconstitutionally prevented him from withdrawing his guilty plea. Third, Creech argues under Magwood v. Patterson , 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), that claims in his second federal habeas petition are not "second or successive" under 28 U.S.C. § 2244(b) and should be decided on the merits. Fourth, Creech argues under Lackey v. Texas , 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995), that we should remand this case for the district court to determine whether the duration of his confinement while awaiting execution constitutes cruel and unusual punishment under the Eighth Amendment.

We affirm the district court on the two certified issues. We grant a COA as to the third uncertified issue and affirm the district court on that issue. We deny COAs as to the first, second, and fourth uncertified issues.

I. Background

A. The Crime and Guilty Plea

While serving life sentences for first-degree murder, Creech beat to death a fellow inmate, David Dale Jensen, in the maximum security tier of the Idaho State Correctional Institution. Jensen, in prison for stealing a car, was twenty-three years old and suffered from physical and mental disabilities

. He was partially paralyzed, and a plastic plate had been surgically embedded in his skull.

Creech attacked Jensen, repeatedly hitting him in the head with a battery-filled sock until the plate embedded in his skull shattered, his skull caved in, and blood was splashed on the floors and walls. State v. Creech ("Creech I "), 105 Idaho 362, 670 P.2d 463, 465 (1983). Creech took breaks during the beating. After the sock broke and the batteries fell out, Creech kicked Jensen in the throat while Jensen lay sprawled on the floor. Jensen was found by a prison guard and taken to the hospital. He died on the operating table the same day. Creech had four prior murder convictions when he killed Jensen. Creech claimed responsibility for killing twenty-six people, and the bodies of eleven of his victims were later recovered in seven states.

Creech was charged with first-degree murder for killing Jensen. Represented by the Idaho Public Defender's office, he initially entered a plea of not guilty. He later wrote a letter to the trial judge, Judge Robert Newhouse, requesting a change of plea hearing.

Judge Newhouse held a change of plea hearing in response to Creech's letter. Creech's attorney, Rolf Kehne, informed the court that Creech was pleading guilty against his advice and requested a five-day continuance. Creech indicated he did not want a continuance. Kehne then asked to withdraw from representation on the ground that Creech refused to follow his legal advice. Judge Newhouse denied the request, stating, "I think he should at least have counsel to inform him of the law and what's going on." After the prosecution summarized the evidence it was prepared to present at trial, and after a plea colloquy, Judge Newhouse accepted Creech's guilty plea and ordered a presentence report.

B. Initial Sentencing Hearings

Creech's first sentencing hearing was held in January 1982. The prosecution and the defense each presented expert mental health testimony. Dr. Floyd LaMarr Heyrend, a psychiatrist with training in neurology who had served as a witness for Creech in one of Creech's prior murder trials, appeared for the prosecution. Dr. Heyrend had testified in the prior trial that Creech had antisocial personality disorder

and acted impulsively without adequate forethought and sufficient consideration for others, but that Creech could appreciate the wrongfulness of his conduct and conform that conduct to the requirements of the law. At Creech's 1982 sentencing hearing, Dr. Heyrend testified that Creech could presently "recognize the wrongfulness of his behavior," but also that there was some evidence that Creech exhibited schizotypal thinking and could drift into florid psychosis during times of stress. Based on prior testing in 1974 and 1975 and an electroencephalogram conducted the week before his testimony, Dr. Heyrend opined that Creech did not suffer from organic brain disorder.

Psychologist Dr. John Stoner testified for Creech. He testified that Creech had antisocial personality disorder

, schizotypal personality disorder, and borderline personality disorder. Dr. Stoner testified that Creech's strikingly uneven performance on different types of mental tests "strongly suggest[ed] the presence of an organic brain disorder." He testified that Creech would have been able to appreciate the wrongfulness of his actions at the beginning of the encounter with Jensen, but that, once the attack commenced, Creech had "a rage reaction during which he would neither appreciate the wrongfulness nor be able to conform his behavior; that is, he went into a self-maintaining assaulting rage." Dr. Stoner testified that individuals with similar disorders to Creech had no prospects of therapeutic rehabilitation.

Creech took the stand on his own behalf. He testified that he had killed twenty-six people, a number of whom he believed had gang-raped his deceased former wife. He testified that two other inmates had asked him "to kill Jensen for money," and another inmate offered to help him escape from the penitentiary in exchange for Jensen's killing. Creech testified that he gave someone a knife to give to Jensen; that Jensen then attacked Creech with the knife as an effort to impress other inmates who "wouldn't accept him because he was partially crippled"; and that Creech then killed Jensen. When asked on cross-examination what sentence he wanted Judge Newhouse to give him, Creech replied, "I want him to sentence me to death."

On January 25, 1982, in a written decision, Judge Newhouse sentenced Creech to death. He found in mitigation that Creech had been justified in protecting himself against an unprovoked attack by Jensen. However, he also found that Jensen, "a young, inexperienced, handicapped man" with "both physical and mental impairments

," had been "under the complete domination and control" of Creech once the attack began, and that Jensen's murder, "once commenced, appears to have been an intentional, calculated act." Judge Newhouse found that five statutory aggravating factors under Idaho Code § 19-2515 had been proven beyond a reasonable doubt: (1) Creech had previously been convicted of four first-degree murders—two in 1976, one in 1979, and one in 1980; (2) Creech "exhibited utter disregard for human life" during Jensen's murder; (3) Jensen's murder came within the definition of Idaho Code statutory aggravating factor § 18-4003(c) because Creech was serving a first-degree murder sentence at the time of the crime; (4) Jensen's murder came within the definition of Idaho Code statutory aggravating factor § 18-4003(e) because Creech killed Jensen while both were incarcerated in the Idaho State Correctional Institution; and (5) Creech, "by prior conduct or conduct in the commission of the murder at hand ... exhibited a propensity to commit murder which will probably constitute a continuing threat to society."

On February 24, 1983, the Idaho Supreme Court vacated Creech's death sentence because it had not been imposed in open court in the presence of Creech and his counsel as required by Idaho law. On remand, Judge Newhouse held a hearing at which Creech and his counsel were present. Judge Newhouse read his previous findings into the record and again sentenced Creech to death. Judge Newhouse did not permit Creech to present additional mitigation evidence at the second sentencing hearing. On May 23, 1983, a divided Idaho Supreme Court affirmed. Creech I , 670 P.2d at 465.

C. First State Post-Conviction Review Proceedings

In state court post-conviction review ("PCR") proceedings before Judge Newhouse, Creech moved to withdraw his guilty plea. He asked for no other relief. See State v. Creech ("Creech II "), 109 Idaho 592, 710 P.2d 502, 504 (1985)....