Creech v. Richardson

• Decision Date: 20 July 2022
• Docket Number: 10-99015
• Parties: THOMAS E. CREECH, Petitioner-Appellant, v. TIM RICHARDSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

THOMAS E. CREECH, Petitioner-Appellant, v. TIM RICHARDSON, Warden, Respondent-Appellee.

No. 10-99015

United States Court of Appeals, Ninth Circuit

July 20, 2022

Argued and Submitted September 20, 2021 Pasadena, California

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 1:99-cv-00224-BLW

Jonah J. Horwitz (argued), Christopher M. Sanchez, and Bruce D Livingston, Assistant Federal Public Defenders; Deborah A Czuba; Teresa A. Hampton; Federal Defender Services of Idaho Capital Habeas Unit, Boise, Idaho; Denise I. Young, Attorney at Law, Tucson, Arizona; for Petitioner-Appellant.

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

Douglas E. Litvack, Jenner & Block LLP, Washington, D.C.; Hope H. Tone-O'Keefe, Adam M. Caldwell, and Vincent Wu, Jenner & Block LLP, Chicago, Illinois; for Amicus Curiae The National Disability Rights Network.

Vanessa O. Wells and Yi Zhang, Hogan Lovells U.S. LLP, Redwood City, California; for Amicus Curiae The National Association for Public Defense.

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

SUMMARY^[*]

Habeas Corpus/Death Penalty

The panel filed (1) an order (a) amending and replacing an opinion filed July 20, 2022, (b) denying a petition for panel rehearing, and (c) denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion affirming the district court's denial of Thomas Eugene Creech's second amended habeas corpus petition challenging his death sentence.

In 1981, while serving two life sentences for multiple convictions for 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, and was resentenced to death in 1995. In a second petition, Creech thereafter unsuccessfully sought federal habeas relief in the district court.

The district court granted certificates of appealability (COAs) as to two issues.

First, Creech argued that the district court improperly denied part of Claim 4, in which he alleged that his attorneys provided ineffective assistance of counsel (IAC) at his 1995 resentencing by failing to investigate and present mitigation evidence in a timely and adequate fashion, failing to hire a mitigation specialist, and relying on an unqualified mental health expert. The Idaho Supreme Court rejected Creech's IAC claims at the 1995 resentencing, holding that Creek failed to prove either deficient performance or prejudice under Strickland v. Washington, 466 U.S. 668 (1984). In denying habeas relief prior to this court's remand under Martinez v. Ryan, 566 U.S. 1 (2012), the district court reaffirmed that holding. The panel agreed with the district court that the Idaho Supreme Court reasonably found a lack of prejudice under the second prong of Strickland. The panel held further that under 28 U.S.C. § 2254(e)(2) the district court was correct in declining to hold an evidentiary hearing on the new evidence that Creech sought to introduce to bolster his IAC resentencing claim.

Second, Creech argued under Martinez that five allegedly procedurally defaulted sub-claims of IAC at the 1995 resentencing should be heard on the merits. Under Martinez, a federal habeas court may find cause to excuse a procedural default where (1) the underlying ineffective assistance claim is substantial; (2) the petitioner was not represented or had ineffective counsel during the state postconviction review (PCR) proceeding; (3) the state PCR proceeding was the initial review proceeding; and (4) state law required (or forced as a practical matter) the petitioner to bring the claim in the initial review collateral proceeding. Only the first and second requirements were at issue here, and in practical effect, the prejudice analysis under both of those requirements is the same-there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. At the time of the district court's decision after this court's Martinez remand, the court could consider new evidence supporting a claim of IAC by PCR counsel in determining whether a petitioner satisfies the requirements of Martinez without running afoul of 28 U.S.C. § 2254(e)(2) and Cullen v. Pinholster, 563 U.S. 170 (2011). After the panel heard oral argument, however, the Supreme Court decided Shinn v. Ramirez, 142 S.Ct. 1718 (2022), greatly restricting the circumstances in which a federal habeas court deciding Martinez claims may consider evidence beyond that already contained in the state court record. The district court considered all of the proffered new evidence and held that it was insufficient to transform into a new IAC claim the part of Claim 4 that alleged IAC during Creech's 1995 resentencing. The district court held that the sub-claims at issue in this appeal were therefore not procedurally defaulted new claims and that Martinez did not apply. The panel wrote that even in the absence of Ramirez, it would have agreed with the district court because the new evidence introduced on federal habeas review in support of Creech's argument that he suffers from brain damage and an organic brain disorder was largely duplicative of evidence that had been introduced during his 1982 sentencing and his 1995 resentencing. The panel agreed with the district court that, considering the mitigation evidence as whole, proffered additional evidence of brain damage and organic factors was not sufficient to transform Creech's ineffective-assistance-of-trial-counsel sub-claims into new claims. Under Ramirez, the panel reached the same result. Because it could not consider the evidence presented for the first time to the district court, Creech's Martinez claim necessarily fails.

Creech sought to appeal four uncertified issues.

The panel denied a COA as to Creech's claims (1) that the district court erred in summarily denying his motion for reconsideration of its denial of his second habeas petition, (2) that the Idaho Supreme Court violated the Due Process Clause by refusing to allow him to withdraw his guilty plea prior to his first resentencing, and (3) that the duration of Creech's confinement for his murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

The panel granted a COA as to Creech's argument under Magwood v. Patterson, 561 U.S. 320 (2010), that claims in his second federal habeas petition attacking his guilty plea are not "second or successive" under 28 U.S.C. § 2244(b) and should be decided on the merits. Based on Magwood and later cases decided by this circuit, the panel concluded that because Creech's original sentence was vacated and a new sentence was imposed, the claims are not barred as second or successive. Rather than remand the claims to the district court, the panel denied them, holding that the Idaho courts (1) did not unreasonably find Creech's arguments as to trial counsel's purported conflict of interest to be without merit, (2) did not unreasonably conclude that Creech failed to show that trial counsel should have moved to withdraw his guilty plea on the ground that Creech was incompetent, (3) did not unreasonably conclude that Creech failed to show that IAC at the guilt phase on the basis of trial counsel's purported failure to communicate with him, and (4) did not unreasonably reject Creech's claim that counsel's failure to investigate his purported history of violence led him to plead guilty rather than insist on going to trial on a theory of self-defense.

ORDER

The opinion filed on July 20, 2022, and published at 40 F.4th 1013, is hereby amended and replaced by the amended opinion filed concurrently with this order.

With this amendment, the panel has unanimously voted to deny the petition for panel rehearing. Judge Christen has voted to deny the petition for rehearing en banc, and Judges W. Fletcher and Bybee so recommend.

The full court has been advised of the petition, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R. App. P. 35.

Appellant's petition for panel and en banc rehearing (Dkt. No. 244) is DENIED. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

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 (2012), that five allegedly procedurally defaulted subclaims 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...