Thomas Creech v. Tim Richardson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. CREECH, No. 10-99015
Petitioner-Appellant, D.C. No. 1:99-
cv-00224-BLW
v.
ORDER AND
AMENDED
TIM RICHARDSON, Warden, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted September 20, 2021
Pasadena, California
Filed July 20, 2022
Amended February 6, 2023
Before: William A. Fletcher, Jay S. Bybee, and Morgan
Christen, Circuit Judges.
Order;
Opinion by Judge W. Fletcher
2 CREECH V. RICHARDSON
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CREECH V. RICHARDSON 3
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 post-
conviction 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
4 CREECH V. RICHARDSON
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,
CREECH V. RICHARDSON 5
(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.
6 CREECH V. RICHARDSON
COUNSEL
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 US LLP,
Redwood City, California; for Amicus Curiae The National
Association for Public 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.
CREECH V. RICHARDSON 7
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 sub-
claims of IAC at the 1995 resentencing should be heard on
the merits.
8 CREECH V. RICHARDSON
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 (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 (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
CREECH V. RICHARDSON 9
splashed on the floors and walls. State v. Creech (“Creech
I”), 670 P.2d 463, 465 (Idaho 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
10 CREECH V. RICHARDSON
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 V. RICHARDSON 11
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
12 CREECH V. RICHARDSON
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”), 710 P.2d 502, 504 (Idaho
1985). During a four-day evidentiary hearing in February
1984, Creech testified extensively about the details of
Jensen’s death and his reasons for pleading guilty. On
March 6, 1984, Judge Newhouse denied Creech’s motion to
withdraw his plea. The Idaho Supreme Court affirmed. Id.
at 507.
CREECH V. RICHARDSON 13
D. First Federal Habeas Proceedings
Creech sought federal habeas corpus under 28 U.S.C. §
2254. Our court granted relief with respect to Creech’s
sentence. We held: (1) the state trial court committed
constitutional error when it refused to allow Creech to
present additional mitigation evidence at his second
sentencing hearing; (2) the trial court applied two statutory
aggravating factors, Idaho Code § 18-4003(c) and (e),
without making the requisite findings of specific intent to
kill; and (3) the trial court applied an unconstitutionally
vague “utter disregard for human life” aggravating factor.
Creech v. Arave (“Creech III”), 947 F.2d 873, 881–85, 888
(9th Cir. 1991). The Supreme Court reversed our third
holding. It held that the Idaho Supreme Court’s limiting
construction of Idaho’s “utter disregard” aggravating factor
saved the instruction from unconstitutionality. Arave v.
Creech (“Creech IV”), 507 U.S. 463, 471 (1993). The
Court did not disturb our other two holdings, leaving intact
our remand for resentencing. Id. at 478–79.
E. Resentencing Hearing in 1995
Although no longer a public defender, Kehne
represented Creech at his third sentencing hearing, assisted
by his law partner John Adams. Kehne and Adams
obtained several continuances in order to investigate and
prepare for the hearing. A five-day resentencing hearing
was held before Judge Newhouse in March and April of
1995.
The defense called four witnesses, including Creech, at
the hearing. Creech’s sister, Virginia Plageman, and her
husband, Michael, each testified about Creech’s
personality, family background, and childhood. Virginia
discussed the family’s mental health problems, including
14 CREECH V. RICHARDSON
depression, social withdrawal, and anger management. She
testified that Creech’s maternal grandparents were cousins
and that Creech’s mother “left society” after her youngest
son died at the age of thirteen months. Virginia also
described Creech’s three surviving brothers, two of whom
had been convicted of murder or manslaughter.
Virginia testified that Creech’s childhood was
characterized by poverty and physical abuse, but she
specified that the abuse was not sexual. She testified that,
on one occasion, Creech fell down a staircase onto
concrete; was knocked unconscious; bled from his nose,
mouth, and possibly ears; and was hospitalized for a few
days before their mother took him home against medical
advice. Virginia testified that Creech had experienced
escalating problems beginning in early childhood, and that
he struggled to discern the difference between right and
wrong. She testified that, in recent years, Creech had
calmed down and had become more loving and kind. She
testified that Creech’s wife, whom he had married after his
conviction in this case, had been a positive influence on
him.
Dr. Steven Brown, a clinical psychologist, also testified
for Creech. Dr. Brown had interviewed Creech twice and
had reviewed the updated presentence reports, psychiatric
records, and hospital records. He testified that Creech
scored in the ninety-sixth percentile for psychopathic traits
when compared to the general prison population. He
testified that Creech was a “prototypical or classic
psychopath, and that if any psychopaths have a biological
predisposition,” then “somebody who has such an extreme
form as Mr. Creech probably does.” Dr. Brown noted the
significance of the fact that two of Creech’s brothers were
also murderers: “The fact that two of his brothers are
CREECH V. RICHARDSON 15
murderers is strong anecdotal evidence that there’s a
genetic contribution in his family. It’s fairly outstanding
that there are three murderers in one family.” Though
Creech’s electromyography test results were within normal
limits and there was no direct evidence of a biological basis
for Creech’s condition, Dr. Brown testified that “there’s
probably a biological contribution.”
The State called six witnesses whose testimony focused
on Creech’s conduct in prison and whether he posed a
security concern.
On April 17, 1995, Judge Newhouse again sentenced
Creech to death. He found the following facts in
mitigation: (1) Creech was forty-four years old, and most
violent acts are committed by males younger than thirty;
(2) Creech completed high school through eleventh grade
and had acquired his GED; (3) Creech took pride in
cooperating with law enforcement; (4) Creech was creative,
writing songs, poetry, and prose and playing the guitar; (5)
Creech’s current wife had been a positive influence on him;
and (6) Creech may be biologically predisposed to
violence.
Judge Newhouse found the same five statutory
aggravating factors he had found in 1982. However, this
time, in discussing aggravating factors under Idaho Code
§ 18-4003(c) and (e), he found that Creech had attacked
Jensen with specific intent to kill. Judge Newhouse noted
that “[Creech] indicates an intention to commit further
murders if he is ever released” and that “[a]nything less
than total isolation would give rise to a substantial chance
of the defendant killing again.” He concluded, “The
protection of society demands that Thomas Eugene Creech
receive the death penalty.”
16 CREECH V. RICHARDSON
F. Second State Post-Conviction Review Proceedings
During Creech’s second state court PCR proceedings
before Judge Newhouse, Creech was represented by Idaho
Public Defender August Cahill. Creech claimed that Kehne
and Adams had been ineffective at his resentencing hearing
in 1995. After several continuances, a four-day evidentiary
hearing was held in October 1996. Creech presented
testimony from his ex-wife Emma Jean Asbrock and their
daughter Shelley Renae Creech. Asbrock and Shelley
testified that Creech may have suffered sexual abuse at the
hands of his aunt and uncle when he was a child. Shelley
also discussed her own and her mother’s mental health
difficulties. Kehne and Adams took the stand, testifying
that they had been ineffective at Creech’s 1995
resentencing hearing. Judge Newhouse denied relief,
finding that “Mr. Kehne ha[d] performed with outstanding
competence in a case where the chance for success was
extremely remote.” After consolidating Creech’s appeal
from the trial court’s judgment with his appeal from the
denial of PCR relief, the Idaho Supreme Court affirmed.
State v. Creech (“Creech V”), 966 P.2d 1, 23 (Idaho 1998).
G. Second Federal Habeas Proceedings
Creech timely filed a second § 2254 habeas petition on
January 20, 2000. Proceedings were stayed until January
2005 while Creech unsuccessfully pursued other state post-
conviction relief. On March 24, 2005, Creech filed a
second amended petition, the operative pleading in this
appeal.
In March 2006, the district court found that certain
claims, including some IAC claims, had been procedurally
defaulted. It permitted discovery with respect to these
claims but warned that the claims “will be dismissed
CREECH V. RICHARDSON 17
unless, after a period of limited discovery, Petitioner can
show cause and prejudice to excuse any default.”
Procedural default in PCR proceedings was then governed
by the cause and prejudice standard of Coleman v.
Thompson, 501 U.S. 722 (1991). The court allowed mental
health experts and a mitigation specialist to meet with
Creech.
Creech filed a motion for an evidentiary hearing in
August 2007. Creech proffered additional mitigation
evidence in support of his motion. That evidence provided
substantial additional support for the conclusion that
Creech suffered from an organic brain disorder. In March
2008, the district court denied Creech’s motion for an
evidentiary hearing.
The district court held that 28 U.S.C. § 2254(e)(2)
foreclosed an evidentiary hearing on the additional
mitigating evidence Creech submitted in support of his
motion. The court nonetheless considered the additional
evidence on the merits, concluding that “[m]uch of this
information was already before the state courts, albeit in a
less specific way.” The court wrote that the “state courts
already assumed the truth of Dr. Brown’s testimony in
1995 that there could be a biological aspect to Creech’s
violent behavior, and that fact was not significant to the
outcome.” In the court’s view, “[a] neurologist’s opinion
that Creech has brain damage may be more specific than
Dr. Brown’s testimony, but it would have provided only a
modest counterweight to the heavy aggravating factors.”
The district court dismissed Creech’s second amended
habeas petition with prejudice on March 31, 2010. The
court granted COAs on five claims. One of the COAs
authorized an appeal from the denial of the part of Claim 4
18 CREECH V. RICHARDSON
that alleged IAC at Creech’s resentencing in 1995. Creech
timely appealed four of the five claims as to which COAs
had been granted, including the district court’s denial of the
part of Claim 4 addressed to IAC at the 1995 resentencing.
After oral argument on appeal, the Supreme Court
decided Martinez v. Ryan, 566 U.S. 1, 17 (2012), holding
that IAC by PCR counsel in an initial-review PCR
proceeding can excuse a procedural default of a claim of
IAC of trial counsel. We remanded to the district court to
consider, in light of Martinez, whether counsel had been
ineffective during Creech’s second PCR proceeding in
failing to present certain sub-claims under Claim 4. All of
the sub-claims at issue alleged IAC at the 1995
resentencing.
Seventeen possibly defaulted sub-claims under Claim 4
were before the district court on remand. The district court
held that Creech waived all but six of the sub-claims by
failing to argue them. Of the remaining six, the district
court found that only one, contained in ¶ 100(a), had been
procedurally defaulted. That sub-claim was that trial
counsel had failed to “prepare, develop, and present a
coherent sentencing strategy” at the 1995 resentencing.
The district court held that PCR counsel had not performed
deficiently in failing to present that sub-claim, and, in the
alternative, that there was no prejudice resulting from the
failure to present it. The district court held that the other
five sub-claims, contained in ¶¶ 100(b), (d), (j), (o)(iii) and
(o)(iv), had not been procedurally defaulted by PCR
counsel. Rather, it held, they had been presented by
Creech’s counsel to the PCR court, had been decided
adversely by that court, and had been decided adversely by
the federal district court.
CREECH V. RICHARDSON 19
Creech presented additional evidence on remand.
Creech’s counsel submitted various medical records, as
well as a declaration that she had consulted with a
neuropsychologist who had concluded, based on those
medical records, that Creech may have suffered from an
organic brain disorder. Properly considering this new
evidence under the law in effect at the time, the district
court concluded that it was comparable to the evidence
submitted to the district court in support of Creech’s pre-
remand motion for an evidentiary hearing, and that it added
little to the information that had been before the state PCR
court. The court wrote, “Over the course of the two
sentencing hearings and the state postconviction
proceedings, it had been well-established that Creech
might, indeed, have some . . . biological or genetic
component that contributed to his antisocial and violent
behavior . . . .”
The district court on remand held that the entirety of the
additional evidence of IAC that Creech sought to present in
district court, both before and after our Martinez remand,
was insufficient under Dickens v. Ryan, 740 F.3d 1302,
1318–19 (9th Cir. 2014) (en banc), to “fundamentally
alter[]” these five sub-claims and thereby to transform them
into unexhausted and procedurally defaulted new claims.
The court wrote, “The evidence that Petitioner brings
forward in this Court, although more specific, adds little
substance to the evidence that the state courts considered
when adjudicating Petitioner’s mitigation-based IATC
claims. The evidence submitted for the first time in this
Court simply does not substantially improve the evidentiary
posture of those claims.” Because the sub-claims had not
been transformed into procedurally defaulted new claims,
Martinez did not apply.
20 CREECH V. RICHARDSON
The district court reaffirmed its previous grant of a
COA as to the part of Claim 4 alleging IAC at the 1995
resentencing. It granted a new COA as to its denial of
Creech’s request for relief under Martinez as to the five
sub-claims contained in ¶¶ 100(b), (d), (j), (o)(iii) and
(o)(iv). It denied a COA as to any other issue.
Creech filed a motion for reconsideration. He proffered
additional new evidence that he argued fundamentally
altered the five sub-claims and transformed them into new
claims. The district court denied the motion for
reconsideration, refusing to consider the additional new
evidence on the ground that it could, and should, have been
presented as part of the initial proceeding on remand. The
district court denied a COA as to this issue.
Rather than appeal on all of the grounds on which he
previously appealed to this court, Creech now appeals only
the two certified issues and four uncertified issues
described at the beginning of our opinion.
II. Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s dismissal of a habeas
petition. Runningeagle v. Ryan, 825 F.3d 970, 978 (9th
Cir. 2016) (citing Sexton v. Cozner, 679 F.3d 1150, 1153
(9th Cir. 2012)). We review for clear error the district
court’s findings of fact. Buckley v. Terhune, 441 F.3d 688,
694 (9th Cir. 2006) (en banc) (citing Riley v. Payne, 352
F.3d 1313, 1317 (9th Cir. 2003)). We review for abuse of
discretion the denial of a request for an evidentiary hearing.
Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010)
(citing Schriro v. Landrigan, 550 U.S. 465, 468 (2007)).
CREECH V. RICHARDSON 21
We may grant habeas relief under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) only if the state
court’s decision “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). The phrase
“clearly established Federal law” “refers to the holdings, as
opposed to the dicta, of the Supreme Court’s decisions as
of the time of the relevant state-court decision.” Carey v.
Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v.
Taylor, 529 U.S. 362, 412 (2000)).
State-court findings of fact are presumed to be correct.
This presumption can be rebutted only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
III. Discussion
As a preliminary matter, relying on Browning v. Baker,
875 F.3d 444 (9th Cir. 2017), Creech argues that we should
broaden the COA on the first issue—IAC at the 1995
resentencing under Claim 4—to include every claim and
sub-claim addressed to that issue. We wrote in Browning:
While an individual claiming IAC “must
identify the acts or omissions of counsel that
are alleged not to have been the result of
reasonable professional judgment,” the court
considers counsel’s conduct as a whole to
determine whether it was constitutionally
adequate[.] The district court distorted this
inquiry by separating Browning’s IAC
22 CREECH V. RICHARDSON
argument into individual “claims” of IAC
corresponding to particular instances of
[defense attorney] Pike’s conduct. This
approach was misguided. Rather, the IAC
portion of the COA should have been
crafted at a higher level of generality.
Id. at 471 (citations omitted).
In the case before us, the question at issue was whether
Creech received IAC during his 1995 resentencing.
Browning was decided after the district court’s decisions,
while the case was on appeal to us. If Browning had been
available to the district court, it might have used slightly
different language in order to make clear that it was
analyzing Creech’s “counsel’s conduct as a whole to
determine whether it was constitutionally adequate.” Id.But it is clear that this is what the district court did.
In its initial decision denying habeas relief, the district
court headed its analysis of Creech’s IAC claim under
Claim 4 as “Ineffective Assistance of Counsel at the
Resentencing (Claim 4, ¶¶ 100(b)(d)(j)(o)(q))”. Each of
the specified subparagraphs of ¶ 100 alleged instances of
IAC during Creech’s 1995 resentencing. The court then
spent thirteen pages analyzing the IAC resentencing claim
as a whole, considering the entirety of the attorney conduct
of which Creech complained. The initial COA granted by
the district court was similarly encompassing. Claim 4 had
alleged IAC of trial counsel in many respects, including but
not limited to IAC at the 1995 resentencing. The court
granted a narrowed COA for Claim 4, but included in the
COA all of the attorney conduct relevant to the 1995
resentencing. The court wrote: “[T]he Court will certify
an appeal over the Court’s resolution of Claim[] . . . 4 (but
CREECH V. RICHARDSON 23
only to the extent that Creech alleges that he was deprived
of his right to effective assistance of counsel at the 1995
resentencing proceeding) . . . .”
In its decision denying habeas after our remand under
Martinez, reaffirming its previous grant of a COA for the
part of Claim 4 that alleged IAC at the 1995 resentencing,
the court used much of the same wording as it had used
previously in granting the COA for this part of Claim 4.
The court wrote, “The Court reaffirms its previous grant of
a certificate of appealability with respect to its resolution of
the merits of the non-defaulted aspects of Claim[] . . . 4 (to
the extent Creech alleges that he was deprived of his right
to the effective assistance of counsel at the 1995
resentencing proceeding) . . . .”
In our Martinez remand order, we instructed the district
court to consider “whether any of Creech’s ineffective
assistance of counsel claims previously found procedurally
defaulted” may be heard under Martinez. Faithful to our
remand order, the district court discussed each of Creech’s
remanded IAC contentions, calling them “sub-claims.” In
holding that sub-claims ¶¶ 100(b), (d), (j), (o)(iii) and
(o)(iv) were not procedurally defaulted within the meaning
of Martinez, the district court did not consider these sub-
claims independently. Rather, it considered them together,
in the context of the entirety of Creech’s claim of IAC at
resentencing.
A. Certified Claims
1. Claim 4: Ineffective Assistance of Counsel at the 1995
Resentencing
Creech argues under Claim 4 that his trial counsel was
ineffective during his 1995 sentencing proceeding for
24 CREECH V. RICHARDSON
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 Creech failed
to prove either deficient performance or prejudice under
Strickland v. Washington, 466 U.S. 668 (1984). Creech V,
966 P.2d at 17–21. In denying habeas relief to Creech prior
to our remand under Martinez, the district court held that
the Idaho Supreme Court had reasonably concluded that
Creech failed to demonstrate prejudice under Strickland.
On remand from our court under Martinez, the district court
reaffirmed that holding. We agree with the district court.
The two-part standard for evaluating IAC claims is set
forth in Strickland. First, “the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” 466 U.S. at 688. In order to minimize
“the distorting effects of hindsight,” courts evaluating IAC
claims “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Counsel’s
performance must be judged “on the facts of the particular
case, viewed as of the time of counsel’s conduct.” Id. at
690. “The question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional
norms,’ not whether it deviated from best practices or most
common custom.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (quoting Strickland, 466 U.S. at 690).
Second, the defendant must “affirmatively prove
prejudice” by showing that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 693–94. “A reasonable probability
CREECH V. RICHARDSON 25
is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced
a just result.” Id. at 686. We “need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies” if “it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice.” Id. at 697.
“Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
States must be given wide latitude in applying rules of
general applicability such as the Strickland standard. Cf.
Yarborough v. Alvarado, 541 U.S. 652, 663–64 (2004).
“The standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in tandem,
review is doubly so.” Richter, 562 U.S. at 105 (internal
quotation marks and citations omitted). Our review “is
limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011).
We agree with the district court that the Idaho Supreme
Court reasonably found a lack of prejudice under the
second prong of Strickland. The district court noted that
Creech’s case was “far from a blank slate” when it
remanded for the 1995 resentencing. At the 1995
resentencing hearing, Judge Newhouse took judicial notice
of the entire record. That record included the testimony of
Dr. Stoner at the first sentencing hearing and the testimony
of Dr. Brown at the 1995 resentencing hearing. It also
included a voluminous presentence report, updated at
26 CREECH V. RICHARDSON
Kehne’s request, that contained substantial mental health
evidence. Creech’s counsel at the 1995 hearing
supplemented the record with character reference letters
and testimony regarding Creech’s family background and
mental health history; evidence of the physical and verbal
abuse Creech suffered as a child; evidence of a serious
childhood head injury; evidence of the positive influence of
Creech’s wife; expert testimony that there was likely a
biological basis for Creech’s violent tendencies; and
evidence of Creech’s progress in becoming a calmer, less
angry person.
The only new mitigation evidence that was presented in
the state PCR proceeding in 1996 was the testimony of
Asbrock, Creech’s ex-wife, and Shelley, his daughter.
Asbrock testified that Creech had been the victim of
childhood sexual abuse, but her testimony was vague as to
the details. When asked about abuse that occurred in
Creech’s childhood home, Asbrock responded, “Yes. I
think a lot of this is a big part, what happened somewhat in
abuse and incest. You keep— . . . You keep getting abused
and abused, and I don’t—I think someone should have put
a stop to it.” As her testimony continued, Asbrock
indicated Creech had been sexually abused by his aunt and
uncle. When asked the name of the uncle, she said, “Aunt
Thelma, in the bathtub—I can’t remember the man’s name.
But I know what he did. It wasn’t right to continue that
over and over.” She indicated that she knew about the
abuse because Creech and others told her twenty-five or
thirty years earlier.
CREECH V. RICHARDSON 27
Shelley’s testimony was less specific than her mother’s.
She stated in her direct examination:
Q. Have you heard the same sorts of things
about Tom’s family that we heard today
from your mom?
A. I’ve heard a lot of stories.
Q. Okay.
A. And on that issue, I had letters. But I
don’t know. I lost everything. I don’t
know. You know, I know it was in Mount
Orab. I don’t know.
Q. And these were letters that your dad
wrote telling you about things that had
happened to him as a child?
A. Yeah.
Q. And that he had been abused as a child?
A. Yeah.
Q. And that there had been problems in
his—in his home when he was growing up?
A. And that’s why I could write my dad and
let him know things that had happened. And
I couldn’t even go to nobody else.
Asbrock’s and Shelley’s testimony was undermined by
their own mental health problems. Asbrock had suffered
some kind of breakdown at the airport immediately prior to
coming to court to give her testimony, and she was
frequently incoherent while on the stand. Shelley testified
that she had been diagnosed with schizophrenia,
28 CREECH V. RICHARDSON
depression, and borderline personality disorder. She
became agitated and confused on cross-examination.
To establish prejudice under Strickland, any additional
mitigation evidence presented at the PCR IAC hearing,
together with the mitigation evidence already in the record,
must outweigh the aggravating evidence in the record.
That aggravating evidence included Jensen’s brutal murder
in the prison, Creech’s four prior murder convictions, and
Creech’s testimony that he had committed many other
murders and intended to kill more people if given the
opportunity. We agree with the district court that the state
court reasonably concluded that there was no reasonable
probability that calling Asbrock and Shelley as witnesses at
the 1995 resentencing hearing would have changed the
outcome of that proceeding. See, e.g., Pinholster, 563 U.S.
at 202 (“Given what little additional mitigating evidence
Pinholster presented in state habeas, we cannot say that the
California Supreme Court’s [denial of his IAC claim] was
unreasonable.”); Bobby v. Van Hook, 558 U.S. 4, 12 (2009)
(per curiam) (holding no prejudice where only two
potential witnesses not interviewed by defense counsel
would have added any new information of value and the
information provided only “minor additional details” about
defendant’s background); King v. Schriro, 537 F.3d 1062,
1074 (9th Cir. 2008) (holding no prejudice where defendant
did not present evidence of what a more complete social
and medical history investigation would have revealed).
As noted above, Creech had sought to “bolster” his IAC
resentencing claim by introducing in the district court
evidence that had never been presented to the state court.
The district court held that an evidentiary hearing on this
proffered new evidence was precluded by 28 U.S.C. §
CREECH V. RICHARDSON 29
2254(e)(2). In the alternative, the court held, further, that if
it were to ignore the limitation of evidentiary hearings
contained in § 2254(e)(2) and were to consider on the
merits the evidence not presented to the state PCR court, it
would nonetheless deny relief. Inter alia, the court wrote,
“A neurologist’s opinion that Creech has brain damage may
be more specific than Dr. Brown’s testimony, but it would
have provided only a modest counterweight to the heavy
aggravating factors . . . .”
We hold that the district court was correct in denying
relief on Creech’s IAC resentencing claim under Claim 4.
We hold, further, under § 2254(e)(2) that 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.
2. Martinez Remand: Five Allegedly Procedurally
Defaulted Sub-claims
a. Martinez
In Martinez, the Supreme Court announced an equitable
exception to the longstanding rule of Coleman v. Thompson
that ineffective assistance of PCR counsel cannot establish
cause to overcome a procedural default. The Court held:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in
an initial-review collateral proceeding, a
procedural default will not bar a federal
habeas court from hearing a substantial
claim of ineffective assistance at trial if, in
the initial-review collateral proceeding,
there was no counsel or counsel in that
proceeding was ineffective.
30 CREECH V. RICHARDSON
Martinez, 566 U.S. at 17. The Court refined the Martinez
inquiry in Trevino v. Thaler, 569 U.S. 413 (2013). Under
Martinez, a federal habeas court may find cause to excuse a
procedural default where:
(1) the underlying ineffective assistance of
trial counsel claim is “substantial”; (2) the
petitioner was not represented or had
ineffective counsel during the 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.
Dickens, 740 F.3d at 1319 (citing Trevino, 569 U.S. at
423).
A petitioner must satisfy all four requirements, id., but
only the first and second requirements are at issue here.
With respect to the first requirement, a petitioner must
“demonstrate that the underlying [IAC] claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.” Martinez, 566
U.S. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322(2003)). “Thus, there must be a substantial showing of a
‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.’” Runningeagle, 825 F.3d at 982(quoting Strickland, 466 U.S. at 694). To satisfy the
second requirement, the petitioner must demonstrate that
PCR counsel “was ineffective under the standards of
Strickland,” which requires a petitioner to “show not only
that PCR counsel performed deficiently, but also that . . .
CREECH V. RICHARDSON 31
‘there was a reasonable probability that, absent the
deficient performance, the result of the post-conviction
proceedings would have been different.’” Martinez, 566
U.S. at 14; Runningeagle, 825 F.3d at 982 (quoting Pizzuto
v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015)).
In practical effect, the prejudice analysis under both the
first and second Martinez requirements is the same. Under
both requirements, the required analysis is the prejudice
prong of Strickland: There must be a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694; see Runningeagle 825 F.3d at
982 (reciting the Strickland prejudice standard under both
the first and second Martinez requirements); cf. Detrich v.
Ryan, 740 F.3d 1237, 1245–46 (9th Cir. 2013) (en banc)
(plurality opinion) (interpreting the first and second
Martinez requirements differently).
Pursuant to our remand under Martinez, the district
court considered six sub-claims of Claim 4, all of which
alleged IAC at the 1995 resentencing proceeding. Creech
appeals its decision as to five of those sub-claims. At the
time of the district court’s decision after our 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 § 2254(e)(2) and Pinholster. See Dickens,
740 F.3d at 1320. After we heard oral argument, however,
the Supreme Court decided Shinn v. Ramirez, 142 S. Ct.
1718, 1734 (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.
32 CREECH V. RICHARDSON
b. Sub-claims ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv)
All of the sub-claims included in the district court’s
COA are addressed to IAC at Creech’s 1995 resentencing.
Sub-claim ¶ 100(b) alleges that post-conviction counsel
failed to conduct an adequate investigation of matters in
mitigation, including Creech’s mental health and that of his
family. Sub-claim ¶ 100(d) alleges failure to retain
qualified mental health experts to address issues of
Creech’s mental health. Sub-claim ¶ 100(j) alleges failure
to investigate Creech’s mental health issues including the
effect of head injuries. Sub-claim ¶ 100(o)(iii) alleges
failure to present mitigating evidence of the mental
condition of Creech’s daughter, which could support claims
of organic causes for Creech’s aggressive behavior.
Finally, sub-claim ¶ 100(o)(iv) alleges failure to present
evidence of severe mental illness of Creech’s mother.
The district court concluded that each of these sub-
claims had been presented to, and exhausted in, the state
court as part of Creech’s IAC claim under Claim 4 that his
counsel had been ineffective at his 1995 resentencing.
Prior to the Supreme Court’s decision in Ramirez, a claim
previously presented to a state court could become a new
unexhausted (and procedurally defaulted) claim if new
evidence presented to the district court under Martinez
either “fundamentally alter[ed] the legal claim already
considered by the state courts” or “place[d] the case in a
significantly different and stronger evidentiary posture than
it was when the state courts considered it.” Dickens, 740
F.3d at 1318 (citations omitted) (first quoting Vasquez v.
Hillery, 474 U.S. 254, 260 (1986); and then quoting Aiken
v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988)). The
district court recognized that, if a previously exhausted
claim was supplemented on federal habeas with sufficient
CREECH V. RICHARDSON 33
new supporting evidence, the claim could be transformed
into a new, unexhausted, and procedurally defaulted claim.
As recounted above, 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 court
held that sub-claims ¶¶ 100(b), (d), (j), (o)(iii), and (o)(iv)
were therefore not procedurally defaulted new claims and
that Martinez did not apply.
Even in the absence of Ramirez, we would have agreed
with the district court. 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.
Creech’s sister, Virginia Plageman, had testified at
Creech’s 1995 resentencing hearing that when Creech was
a child he had fallen down a staircase onto concrete; that
the fall had knocked him unconscious; that he had bled
from his nose, mouth, and possibly ears; that he had been
hospitalized for a few days as a result of the fall; and that
his mother had taken him home prematurely, against
medical advice. Dr. Stoner had testified for Creech at his
original sentencing hearing in 1982. He testified that
Creech’s performance on mental tests “strongly suggest[ed]
the presence of an organic brain disorder.” Dr. Brown had
testified for Creech at his resentencing hearing in 1995. He
testified that Creech was a psychopath. Under our case
law, that testimony, standing alone, could have been
aggravating rather than mitigating evidence. See, e.g.,
Mann v. Ryan, 828 F.3d 1143, 1161 (9th Cir. 2016)
34 CREECH V. RICHARDSON
(referring to “Dr. Flynn’s damning suggestion that he might
be a psychopath”). But Dr. Brown was testifying on behalf
of rather than against Creech, and he had presented
evidence that was, on the whole, mitigating. He testified
that there probably was a “biological predisposition” for
Creech’s psychopathy. He testified that it was highly
unusual that Creech and two of his brothers were
murderers, and that there was “probably a biological
contribution” to Creech’s mental state and behavior.
Evidence of possible brain damage from a severe fall
requiring hospitalization, of an “organic brain disorder,”
and of a “biological predisposition” and “biological
contribution” to a mental disorder—that is, evidence of
mental dysfunction caused by factors beyond a defendant’s
control—is mitigating evidence.
We agree with the district court that, considering the
mitigation evidence as a whole, see Browning, 875 F.3d at
471, the 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. The court wrote:
The evidence that Petitioner brings forward
in this Court, although more specific, adds
little substance to the evidence that the state
courts considered when adjudicating
Petitioner’s mitigation-based IATC claims.
The evidence submitted for the first time in
this Court simply does not substantially
improve the evidentiary posture of those
claims.
CREECH V. RICHARDSON 35
Under Ramirez, we reach the same result. Because we
cannot consider the evidence presented for the first time to
the district court, Creech’s Martinez claim necessarily fails.
B. Uncertified Claims
Creech seeks a COA for four uncertified claims. For a
COA to issue, Creech must “sho[w] that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El, 537 U.S. at
336 (alteration in original) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
1. Summary Denial of Reconsideration
Creech seeks a COA on his claim that the district court
erred in summarily denying his motion for reconsideration
of its denial of his second habeas petition. In his motion
for reconsideration, Creech sought to present additional
mitigating evidence beyond the new evidence he had
already presented to the district court in connection with his
second petition. In denying his motion for reconsideration,
the district court held, inter alia, that even if the court were
to consider the new evidence presented in connection with
the motion for reconsideration as if it were part of Creech’s
initial Martinez proceeding, there was no prejudice. We
deny a COA. Under Ramirez, we may not consider the
evidence Creech submitted in support of his motion for
reconsideration. He therefore cannot demonstrate prejudice
as a result of PCR counsel’s performance as required by
Martinez.
36 CREECH V. RICHARDSON
2. Withdrawal of Guilty Plea
Creech seeks a COA for his claim 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. The district court denied relief on this claim,
correctly concluding that Creech’s argument was, in effect,
that the Idaho Supreme Court had incorrectly decided a
question of state law. See Creech V, 966 P.2d at 21–22.
The Idaho Court’s construction of its own law was not “an
obvious subterfuge to evade the consideration of a federal
issue,” and we are bound by its holding that Creech’s
withdrawal claim is barred by state preclusion law. See
Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994). We
therefore decline to grant a COA for this claim.
3. Magwood Claims
Creech seeks a COA for multiple claims attacking his
guilty plea. He refers to these claims as “Magwood
claims,” invoking the Supreme Court’s decision in
Magwood v. Patterson, 561 U.S. 320 (2010). These claims
were exhausted during his second PCR proceeding in state
court and were presented to the district court in both his
first and second habeas petitions. When Creech raised
them in his second habeas petition, the district court
rejected these claims as second or successive under 28
U.S.C. § 2244(b). After the district court’s decision, the
Court decided Magwood, holding that claims in a second
federal habeas petition challenging the sentence imposed in
a new state court judgment are not second or successive,
even if addressed to issues other than sentencing. Id. at
342.
Creech asks that we grant a COA as to his guilty plea
claims and remand to the district court to allow that court to
CREECH V. RICHARDSON 37
address them on the merits in the first instance. We grant
the COA. We conclude, based on Magwood and later cases
decided by our circuit, that the claims are not barred as
second or successive. However, rather than remand them
to the district court, we deny them ourselves.
a. Applicability of Magwood
“We review de novo the district court’s determination
that a petition is ‘second or successive’ under AEDPA.”
Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017).
In Magwood, the Supreme Court held that a second federal
habeas petition challenging a sentence imposed in an
intervening state court judgment was not a second or
successive petition. Magwood left open the question
whether § 2244(b) would allow a petitioner who obtains a
new sentence to challenge “not only his resulting, new
sentence, but also his original, undisturbed conviction.”
561 U.S. at 342 (emphases in original). We answered that
question in Wentzell v. Neven, 674 F.3d 1124 (9th Cir.
2012). We held that “the basic holding of Magwood” must
extend to cases where a new petition challenges
undisturbed parts of the judgment, including a petitioner’s
original conviction, because Magwood requires us to
“interpret successive applications with respect to the
judgment challenged and not with respect to the particular
components of that judgment.” Id. at 1127 (quoting
Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010)).
“‘[W]here a first habeas petition results in an amended
judgment, a subsequent petition is not successive,’ even if
its claims could have been raised in a prior petition or the
petitioner ‘effectively challenges an unamended component
of the judgment.’” Id. (quoting Johnson, 623 F.3d at 46);
see also Gonzalez, 873 F.3d at 768–69 (“In short, under the
law of this circuit and the Supreme Court, a petition is not
38 CREECH V. RICHARDSON
second or successive when there is an amended judgment
and the petition is the first one following that amended
judgment.”).
Although Creech III and Creech IV left Creech’s
conviction for Jensen’s murder undisturbed, Creech may
nonetheless challenge that conviction in his second federal
habeas petition because his original sentence was vacated
and a new sentence was imposed. Creech’s second habeas
petition is thus not second or successive as to his guilt-
phase claims.
b. Discussion of Magwood Claims
As noted above, public defender Rolf Kehne
represented Creech at trial. Creech claims that, were it not
for a conflict of interest in the public defender’s office and
were it not for Kehne’s deficient performance, he would
not have pleaded guilty and would instead have gone to
trial on the question of guilt. Specifically, Creech argues
that his trial counsel were ineffective because (1) the Ada
County Public Defender’s Office (“ACPDO”) labored
under a conflict of interest while representing him; (2)
Kehne failed to move to withdraw the guilty plea based on
Creech’s incompetence and failed to seek additional testing
for brain damage; (3) Kehne failed to investigate the
purported influence of Sheriff Chuck Palmer in Creech’s
decision to plead guilty; and (4) Kehne failed to investigate
Jensen’s allegedly violent history. We take the arguments
in turn.
i. Conflict of Interest
Creech argues that the ACPDO labored under a conflict
of interest in the pre-plea stage. Creech argues that, before
he was represented by Kehne, he was briefly represented in
CREECH V. RICHARDSON 39
different hearings by four other public defenders in the
ACPDO. One of these attorneys, Laird Stone, also
represented inmate Keith George, who had witnessed
Jensen’s death. George provided deposition testimony
describing Creech’s actions in continuing the attack on
Jensen after Jensen had stopped fighting. Creech argues
that George’s testimony contributed to Creech’s perception
that the case was hopeless and that the court would
automatically impose the death penalty, which induced him
to plead guilty.
The record belies Creech’s argument. Kehne
affirmatively sought a continuance to investigate whether
the public defender’s office had a conflict arising from
potential witnesses against Creech who had been
represented by the public defender. During argument in the
trial court, Kehne clarified that the office was representing
another inmate, presumably George, who was trying to
reach a deal and was represented by Stone. The
prosecution represented to the court that no offers of a deal
had been extended to that other inmate, that there was
nothing more than a potential conflict of interest, and that
the prosecution would inform the public defender’s office if
an offer of a deal was extended. The trial court determined
that there was a potential but not an actual conflict. When
George testified in his deposition in August 1981, he was
no longer represented by the public defender’s office.
Creech concedes that the prosecution did not cut George a
deal for testimony until his deposition, when it is
undisputed he was represented by a private attorney.
Therefore, no actual conflict existed at the time of
George’s deposition. See Noguera v. Davis, 5 F.4th 1020,
1035 (9th Cir. 2021) (“An ‘actual conflict’ means a
‘conflict of interest that adversely affects counsel’s
40 CREECH V. RICHARDSON
performance,’ not simply ‘a theoretical division of
loyalties.’” (quoting Mickens v. Taylor, 535 U.S. 162, 171,
172 n.5 (2002))). The state trial court investigated the
potential conflict and found that none existed. See Alberni
v. McDaniel, 458 F.3d 860, 870–71 (9th Cir. 2006).
Moreover, the details in George’s deposition testimony
were not more damaging than the admissions Creech had
made to police against the advice of counsel prior to his
change of plea hearing. Contrary to Creech’s assertion, it is
apparent that his decision to plead guilty against Kehne’s
advice was wholly unrelated to ACPDO’s representation of
George. The Idaho courts did not unreasonably find
Creech’s arguments as to Kehne’s purported conflict of
interest to be without merit. See Creech V, 966 P.2d at 21.
ii. Failure to Argue Creech’s Incompetence or to Obtain
Further Mental Testing
Creech argues that Kehne should have moved to
withdraw his guilty plea on the ground that Creech was
incompetent to plead guilty and that Kehne should have
tested Creech for brain damage, which would have raised
issues about his competence to plead guilty. Creech asserts
that the assessments of Drs. Stoner and Heyrend, along
with a suicide attempt the day before he appeared in court
to change his guilty plea, should have indicated to Kehne
that Creech was incompetent to plead guilty and that
further testing was necessary.
We addressed Creech’s competence to plead guilty in
our decision in 1991. There is nothing in the current record
that leads us to change our earlier conclusion that the
record discloses “no evidence that Creech was incompetent
to plead guilty.” Creech III, 947 F.2d at 879–80. When
Dr. Heyrend was asked whether Creech “did not intend to
CREECH V. RICHARDSON 41
plead guilty or did not recognize the consequences of that
legal act,” he replied “I really have no information in that
area.” Dr. Stoner testified that Creech, although impulsive
and impaired in his judgment, could understand the
proceedings against him and was capable of
communicating adequately with counsel.
Although Creech, at Kehne’s insistence, reserved the
right to withdraw his guilty plea if psychological
evaluations showed Creech incompetent to plead guilty,
those evaluations did not suggest that Creech was
incompetent to plead guilty such that Kehne should have
pursued further testing or moved to withdraw the plea.
Even assuming that Kehne should have pursued further
testing, his failure to do so was not prejudicial, as nothing
in Dr. Brown’s later testimony at the 1995 resentencing
hearing suggests that Creech had been incompetent to plead
guilty. See United States v. Howard, 381 F.3d 873, 877–78
(9th Cir. 2004) (“To establish that his counsel provided
ineffective assistance in light of [petitioner’s] alleged
incompetency, [petitioner] must first demonstrate that he
was indeed incompetent to plead guilty.”). The Idaho
courts did not unreasonably conclude that Creech failed to
show that Kehne should have moved to withdraw his guilty
plea on the ground that Creech was incompetent. See
Creech V, 966 P.2d at 21.
iii. Failure to Communicate or Move to Withdraw the
Guilty Plea Based on Undue Influence
Creech argues that Kehne was ineffective for failing to
adequately communicate with him prior to his guilty plea,
which resulted in Kehne’s failure to challenge and
investigate Sheriff Chuck Palmer’s alleged coercion of
Creech into pleading guilty, and for subsequently failing to
42 CREECH V. RICHARDSON
move to withdraw the guilty plea based on Sheriff Palmer’s
influence on Creech.
During Creech’s state PCR proceedings, Palmer
testified that he had an ongoing relationship with Creech
dating back to the early 1970s. Palmer described the
relationship as one of “mutual respect.” He recalled that
Creech told him early on that he wanted to plead guilty, and
that he “encourage[d] [Creech] to do that, if that was what
he wanted to do.” However, Palmer insisted that he told
Creech not to discuss matters pertaining to the murder with
him outside the presence of counsel.
The record shows that Creech was motivated to plead
guilty independent of any supposed influence by Palmer.
During the change-of-plea hearing, Kehne informed Judge
Newhouse that Creech was pleading guilty against his
advice, and Creech rejected Kehne’s advice that they seek a
five-day continuance before entering a guilty plea. During
the plea colloquy, Creech testified under oath that he had
discussed the plea with counsel, was not influenced by the
conduct of others, and believed that he had adequate time
to discuss the matter with counsel. Doe v. Woodford, 508
F.3d 563, 571 (9th Cir. 2007) (“Solemn declarations in
open court carry a strong presumption of verity.” (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977))); United
States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir. 2001)
(“We give ‘substantial weight’ to [a petitioner’s] in-court
statements.” (quoting United States v. Mims, 928 F.2d 310,
313 (9th Cir. 1991))).
Even assuming that Kehne rendered deficient
performance for failing to adequately communicate with
Creech prior to the change-of-plea hearing, Creech cannot
demonstrate prejudice. The record contains ample
CREECH V. RICHARDSON 43
evidence that Creech desired to plead guilty of his own
accord, and he has not shown that, even if Kehne had
presented a motion to withdraw his guilty plea based on
Palmer’s alleged influence, the motion would have had a
reasonable chance of success. See United States v. Yong,
926 F.3d 582, 590 (9th Cir. 2019) (“A plea of guilty
entered by an individual fully aware of the plea’s direct
consequences ‘must stand unless induced by threats (or
promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature
improper . . . .’” (quoting Kaczynski, 239 F.3d at 1114)).
The Idaho Supreme Court did not unreasonably conclude
that Creech failed to show IAC at the guilt phase on the
basis of Kehne’s purported failure to communicate with
him. See Creech V, 966 P.2d at 19–20.
iv. Failure to Investigate Jensen’s History
Finally, Creech argues that counsel’s failure to
investigate Jensen’s purported history of violence led
Creech to plead guilty rather than insist on going to trial on
a theory of self-defense. Even assuming that Kehne’s
failure to investigate Jensen’s history constituted deficient
performance, Creech cannot demonstrate prejudice. We
agree with our determination in 1991 that it is
“inconceivable . . . , and not merely improbable” that
Creech “would have been acquitted or, if convicted, would
nevertheless have been given a shorter sentence than he
actually received” if he had gone to trial on a theory of self-
defense. Creech III, 947 F.2d at 879 (quoting Evans v.
Meyer, 742 F.2d 371, 375 (7th Cir. 1984)). Even accepting
for the sake of argument that Jensen had a violent
predisposition, there is no reasonable probability that this
additional evidence would have outweighed the
44 CREECH V. RICHARDSON
countervailing and aggravating evidence. Allen v.
Woodford, 395 F.3d 979, 1002 (9th Cir. 2005) (no
prejudice where additional mitigation evidence would have
been “insufficient to outweigh the overwhelming evidence
in aggravation”). The Idaho courts did not unreasonably so
conclude. See Creech V, 966 P.2d at 18–19.
4. Lackey Remand
Creech seeks a COA for a claim that the duration of
Creech’s confinement for this murder, now forty years,
constitutes cruel and unusual punishment in violation of the
Eighth Amendment. He relies on Justice Stevens’s
memorandum respecting the denial of certiorari in Lackey
v. Texas, 514 U.S. 1045 (1995) (mem.). The district court
found the claim procedurally defaulted and dismissed it
with prejudice. Even putting aside the procedural default,
we note that neither the Supreme Court nor the Ninth
Circuit has ever held that the duration of a death row
inmate’s confinement prior to execution amounts to cruel
and unusual punishment. Smith v. Mahoney, 611 F.3d 978,
998 (9th Cir. 2010) (collecting cases). We therefore
decline to grant a COA for this claim.
C. Post-Ramirez Motion
After the Supreme Court decided Ramirez, Creech
moved for leave to file replacement or supplemental briefs.
Creech contends that, had he known that he would not be
able to introduce new evidence on federal habeas review
under Martinez, he would have made different strategic
choices as to which arguments to pursue in his appeal from
the district court’s decision after our post-Martinez remand.
He seeks to file replacement or supplemental briefs based
on strategic choices he says he would have made had he
known that he was unable to make any arguments under
CREECH V. RICHARDSON 45
Martinez. However, Creech filed such briefs when he
appealed the district court’s denial of his second amended
habeas petition. We heard oral argument based on those
briefs in March 2012 shortly before Martinez was decided.
In those briefs, Creech made precisely the sort of strategic
choices that he now says he wants to make—choices as to
what arguments to make on appeal when he has no viable
arguments under Martinez. After we heard argument in the
pre-Martinez appeal, we voted unanimously to deny all
claims adversely to Creech except for those that became
available post-argument under Martinez. Replacement or
supplemental briefs of the sort Creech seeks to file would
thus make no difference to the outcome. We therefore
deny Creech’s motion to file replacement or supplemental
briefs.
Conclusion
We affirm the district court’s denial of Creech’s second
amended habeas petition.
AFFIRMED.