40 F.4th 1013
9th Cir.2022Background
- In 1981 Thomas Creech, already serving life for multiple first-degree murders, beat fellow inmate David Jensen to death; Creech pled guilty and was sentenced to death (initial sentence later vacated and he was resentenced to death in 1995).
- At the 1995 resentencing defense presented mitigation evidence including family history, childhood head injury, expert testimony about possible organic/biological contributions to violent behavior, and testimony from a mitigation-focused psychologist. The court again imposed death.
- Creech pursued state post-conviction relief alleging ineffective assistance of counsel (IAC) at the 1995 resentencing; state courts denied relief. Creech then filed a second federal habeas petition challenging the 1995 sentencing IAC and other guilt-phase claims.
- The district court denied the petition, declined an evidentiary hearing under 28 U.S.C. § 2254(e)(2), and granted COAs on limited issues (including IAC at resentencing and several sub-claims). The Ninth Circuit remanded under Martinez v. Ryan to assess whether PCR counsel’s IAC excused procedural defaults.
- On remand the district court again denied relief, concluding (1) the state court reasonably found no Strickland prejudice as to IAC at resentencing, (2) most new evidence duplicated the state record and did not transform exhausted claims into new defaulted claims, and (3) § 2254(e)(2)/Pinholster precluded an evidentiary hearing on newly proffered evidence. The Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Creech) | Defendant's Argument (Richardson) | Held |
|---|---|---|---|
| IAC at 1995 resentencing (Claim 4): failure to investigate/present mitigation, not hiring mitigation specialist, reliance on weak expert | Counsel performed deficiently and prejudice resulted because additional mitigation (organic brain disorder, sexual abuse history, family mental illness) would have changed sentence | State courts reasonably found no Strickland prejudice given heavy aggravation and substantial mitigation already in record; new evidence is cumulative | Affirmed: Idaho Supreme Court reasonably found no prejudice; district court properly denied evidentiary hearing under § 2254(e)(2) |
| Martinez exception for five allegedly defaulted IAC sub-claims (¶¶100(b),(d),(j),(o)(iii),(o)(iv)) | PCR counsel’s IAC excused procedural default; new evidence sufficiently strengthens claims to satisfy Martinez (substantial claim + PCR deficiency) | New evidence is largely duplicative of state-record mitigation; under Dickens/Pinholster (and later Shinn v. Ramirez) federal court may not rely on first-time evidence to transform exhausted claims | Affirmed: sub-claims were not transformed into new defaulted claims; under Ramirez the court cannot consider first-time evidence, so Martinez relief fails |
| Magwood: Are guilt-phase claims in second petition “second or successive”? | Because original sentence was vacated and a new sentence imposed, these are not second/successive and should be adjudicated on the merits | Even if not successive, Idaho courts reasonably rejected the guilt-phase IAC/conflict/competency claims on the merits | COA granted; panel held claims are not successive under Magwood but denied them on the merits (no unreasonable state-court decision) |
| Due process claim re: denial of motion to withdraw guilty plea before first resentencing | Idaho Supreme Court’s refusal violated Due Process and blocked withdrawal of plea | State-court resolution was a state-law preclusion decision, not an evasion of federal review; no federal due-process violation shown | COA denied: claim rests on state-law preclusion and does not present a debatable federal due-process error |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong IAC test for deficient performance and prejudice)
- Martinez v. Ryan, 566 U.S. 1 (equitable exception allowing PCR counsel IAC to excuse certain procedural defaults)
- Cullen v. Pinholster, 563 U.S. 170 (limits federal habeas review to the state-court record for claims adjudicated on the merits)
- Shinn v. Ramirez, 142 S. Ct. 1718 (restricts use of new evidence on federal habeas when claim was adjudicated on the merits in state court)
- Magwood v. Patterson, 561 U.S. 320 (holding that claims challenging a sentence in a new judgment are not necessarily second or successive)
- Dickens v. Ryan, 740 F.3d 1302 (9th Cir.) (tests when new evidence may “fundamentally alter” a claim for exhaustion purposes)
- Browning v. Baker, 875 F.3d 444 (9th Cir.) (IAC COA should consider counsel’s conduct as a whole)
- Arave v. Creech, 507 U.S. 463 (Supreme Court decision addressing prior habeas issues in Creech’s litigation)