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Creech v. Hardison

March 31, 2010




The merits of the non-dismissed claims in the Second Amended Petition are currently before the Court in this capital habeas matter. After considering the parties' written and oral arguments, and the record herein, the Court shall deny relief.


In 1981, Thomas Creech was serving two life terms in prison for murder. He had also been convicted of two murders in Oregon and California, and he had admitted to committing more than 24 others. (State's Lodging B-5, pp. 146-54.) Despite this lengthy and violent history, prison officials authorized Creech to be a janitor on the maximum security tier, which allowed him to be outside of his cell for several hours a day performing his duties. (State's Lodging B-5, pp. 191-92.)

David Dale Jensen, a 23-year-old first-timer at the state prison, was housed on the same tier as Creech. A few years earlier, Jensen had shot himself in the head, which resulted in the removal of part of his brain and the insertion of a plastic plate in his head. (State's Lodging B-5, p. 197.) The injury impaired Jensen's speech, and his movement was limited on one side of his body. (State's Lodging B-5, pp. 197-98.) He was apparently considered to be a troublemaker by some of the inmates on the tier, and he had antagonized Creech by littering and arguing with him over television privileges. (State's Lodging A-1, pp. 61-62.)

It is undisputed that on May 13, 1981, Creech killed Jensen by hitting him with a battery-filled sock and then stomping on his neck and head. The precise circumstances of the murder have never been entirely clear, primarily because Creech has given different versions of the event over time, but the Idaho Supreme Court has found the following basic facts:

[W]hile Jensen was out of his cell, Jensen approached Creech and swung a weapon at him which consisted of a sock containing batteries. Creech took the weapon away from Jensen, who returned to his cell but emerged with a toothbrush to which had been taped a razor blade. When the two men again met, Jensen made some movement toward Creech, who then struck Jensen between the eyes with the battery laden sock, knocking Jensen to the floor. The fight continued, according to Creech's version, with Jensen swinging the razor blade at Creech and Creech hitting Jensen with the battery filled sock. The plate imbedded in Jensen's skull shattered, and blood from Jensen's skull was splashed on the floor and walls. Finally, the sock broke and the batteries fell out, and by that time Jensen was helpless. Creech then commenced kicking Jensen about the throat and head. Sometime later a guard noticed blood, and Jensen was taken to the hospital, where he died the same day. State v. Creech, 670 P.2d 463, 465 (Idaho 1983).

Based on these events, on May 18, 1981, the State charged Creech with murder in the first degree. (State's Lodging B-2, p. 3.) The Ada County Public Defender's Office was appointed to represent him, and Rolf Kehne of that office was assigned to the case. (State's Lodging B-2, p. 16.)

The parties made routine court appearances to discuss pretrial matters over the next three months. (State's Lodging B-4, pp. 1-34.) Then, on August 26, Creech wrote to the assigned trial judge, Robert G. Newhouse, indicating that he wished to change his plea to guilty. (State's Lodging B-4, p. 35.) Two days later, the judge caused Creech to be transported to his courtroom for a change of plea hearing. (State's Lodging B-4, p. 35.) It appears that Kehne was not notified of the hearing until a few minutes before it was set to begin, and he informed the court that Creech was refusing to take his legal advice. (State's Lodging B-4, pp. 39-40.) He also sought a continuance to confer with his client, but the court denied that request because Creech said that he wanted to proceed. (State's Lodging B-4, pp. 41-42.) Kehne's motion to withdraw as counsel was likewise denied. (State's Lodging B-4, p. 42.)

The court then conducted a colloquy with Creech, informing him of the rights that he was waiving and exploring whether any promises had been made to him. (State's Lodging B-4, pp. 59-61.) The prosecutor also questioned Creech, specifically asking him whether he intended to kill Jensen, to which he responded, "[w]hen I first had the fight with him, no. But the second time, I did intend to kill him." (State's Lodging B-4, p. 63.) He admitted that he continued to kick Jensen in the throat and head after he was no longer a threat. (Id.) The court accepted the plea. (State's Lodging B-4, pp. 64-65.)

After holding a separate aggravation and mitigation hearing, the district court sentenced Creech to death by written order ("1982 Findings"), but the Idaho Supreme Court remanded for sentencing in Creech's presence. (State's Lodging B-3, pp. 8-10.) On remand, the court re-read its original findings without hearing any new evidence, and the Idaho Supreme Court then affirmed the conviction and sentence. State v. Creech, 670 P.2d 463 (Idaho 1983). Creech's later request to withdraw his guilty plea was unsuccessful, as was an appeal from that decision. State v. Creech, 710 P.2d 502 (Idaho 1985).

In 1986, Creech filed his first federal habeas petition in this Court. (Case No. CV 86-1042-HLR.) District Judge Harold L. Ryan set the case for an evidentiary hearing, but the hearing was not held due to counsel's dilatoriness, and Judge Ryan denied relief. (Case No. CV 86-1042-HLR, Docket No. 32.) On appeal, the Ninth Circuit affirmed in part and reversed in part, concluding that three constitutional errors had occurred during the state court sentencing proceeding. Creech v. Arave, 947 F.2d 873, 881-85 (9th Cir. 1991). The United States Supreme Court granted review on a single issue and held that Idaho's "utter disregard" aggravating circumstance, as interpreted by the Idaho Supreme Court, adequately channeled a sentencer's discretion for purposes of the Eighth Amendment. Arave v. Creech, 507 U.S. 463 (1993). Because the Supreme Court did not review the Ninth Circuit's finding of other errors, the case was remanded to state court for a new sentencing hearing. Id. at 478-79.

Rolf Kehne had since gone into private practice, but he continued to represent Creech, now with the assistance of his new law partner, John Adams. (State's Lodging H-36, pp. 1-13.) Judge Newhouse was still the presiding judge.

At counsel's request, the sentencing hearing was continued several times before it commenced on March 13, 1995. (State's Lodging H-36, p. 53.) In the interim, Kehne filed a second Motion to Withdraw Guilty Plea, which the court denied after concluding that all issues regarding the validity of the guilty plea had already been resolved. (State's Lodging H-37, pp. 111-12.)

The court took judicial notice of the entire record and received new evidence over the course of four days. (State's Lodging H-36, pp. 53-427.) In its written findings ("1995 Findings"), the court found that the following statutory aggravating factors under Idaho Code § 19-2515 had been proven beyond a reasonable doubt: (1) Creech had previously been convicted of another murder ; (2) he committed the present murder with an utter disregard for human life; (3) he committed the murder, with the specific intent to kill, while he was already serving a sentence for murder; (4) he committed the murder, with the specific intent to kill, against a fellow prison inmate; and (5) he exhibited a propensity to commit murder that will probably constitute a continuing threat to society. (State's Lodging H-35, pp. 267-68.)

The court also considered various mitigating circumstances, including that Creech was aging, had cooperated with law enforcement in the past, completed his GED, was creative, credited his wife for reduced disciplinary infractions, and might have a biological component making him predisposed to violence. (State's Lodging H-35, pp. 263-64.) The court weighed all of the mitigating factors against each statutory aggravating factor individually and concluded that the accumulated weight did not outweigh each aggravator. (State's Lodging H-35, p. 269.) An Amended Judgment of Conviction imposing a death sentence was filed on May 1, 1995. (State's Lodging H-35, pp. 318-19.)

Kehne filed an application for post-conviction relief on Creech's behalf within 42 days of the entry of the Judgment and requested permission to withdraw. (State's Lodging I-38, p. 12.) The court re-appointed the Ada County Public Defender in May1995. (State's Lodging H-35, p. 332.) An evidentiary hearing was scheduled, but the deputy public defender assigned to the case, August Cahill, requested, and was granted, a number of continuances so that he could fully prepare. (State's Lodging I-39, pp. 1-53.) Cahill amended the petition to include claims of ineffective assistance of trial counsel. (State's Lodging I-38, p. 77.)

The evidentiary hearing was held in October 1996, over sixteen months after new counsel was appointed. (State's Lodging I-39, p. 54.) In a written decision, the district court denied all relief. (State's Lodging I-38, p. 210.) The Idaho Supreme Court affirmed the sentence and denial of post-conviction relief. State v. Creech, 966 P.2d 1 (Idaho 1998).

In 1999, Creech initiated the current habeas proceeding, but the matter was stayed so that he could attempt to exhaust additional claims in a new state post-conviction proceeding. In 2002, the Idaho Supreme Court dismissed the new action on procedural grounds. Creech v. State, 51 P.3d 387 (Idaho 2002). The federal case was also stayed while Creech pursued another application for post-conviction relief based upon Ring v. Arizona, 536 U.S. 584 (2002), which was dismissed by the Idaho Supreme Court.

Creech returned to federal court and filed a Second Amended Petition, raising forty-five claims.*fn1 (Docket No. 131.) The following claims have since been dismissed with prejudice: 4 (in part), 7, 8, 10 (in part), 11(in part), 13, 16, 17, 19, 22 (in part), 29-32, 35-45. (Docket No. 173, pp. 33-34; Docket No. 181.)

The parties have filed briefs on the remaining claims, and they have presented oral argument to the Court. The Court is now prepared to issue its final ruling.


The provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) are applicable to this case. (Docket No. 184.) Under AEDPA, the Court cannot grant habeas relief on any federal claim that the state court adjudicated on the merits unless the adjudication of the claim:

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).

Section 2254(d)(1) has two clauses, each with independent meaning. For a decision to be "contrary to" clearly established federal law, the petitioner must establish that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor, 529 U.S. 362, 404-06 (2000).

To satisfy the "unreasonable application" clause, the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams, 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; the state court's application of federal law must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). The state court need not cite or even be aware of the controlling United States Supreme Court decision to be entitled to AEDPA deference. Early v. Packer, 537 U.S. 3, 8 (2002). Though the source of clearly established federal law must come from the holdings of the Supreme Court, circuit law may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

To be eligible for relief under § 2254(d)(2), the petitioner must show that the decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id.

Under all circumstances, state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).


Several of Creech's remaining claims attack the validity of his conviction for first degree murder. Respondent argues that these claims must be dismissed because the claims either were or could have been raised in the 1986 habeas action. (Docket No. 262, p. 70.) Creech has not responded to this argument, and the Court agrees with Respondent.

Standard of Law

Under 28 U.S.C. § 2244(b)(1), a federal court must dismiss any claim that a habeas petitioner presents in a "second or successive habeas corpus application" that the he raised in a "prior application." The court must also dismiss any new claim in a second or successive petition, unless the petitioner can show that the claim is based on a new rule of law that the Supreme Court has determined is retroactive, or he can show that he could not have discovered the claim with due diligence and the facts underlying the new claim establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would now find him guilty. 28 U.S.C. § 2244(b)(2). The district court has no jurisdiction to adjudicate second or successive petitions in any respect unless the petitioner has first received authorization to proceed from the appropriate court of appeals. 28 U.S.C. § 2244(b)(3).

The initial question, then, is whether a new habeas petition is a "second or successive" one. That term is not defined in AEDPA, and it is clear that not all petitions that follow a previously dismissed one are subject to the provisions of § 2244(b). Hill v. Alaska, 297 F.3d 895, 897 (9th Cir. 2002). Rather, "second or successive" is a term of art that must be interpreted consistently with AEDPA's goals of comity, federalism, and finality, and against the backdrop of the pre-AEDPA doctrine of abuse of the writ. Panetti v. Quarterman, 551 U.S. 930, 945-56 (2007). Abuse of the writ principles prohibited the consideration of habeas claims that either were or could have been raised in a prior petition, absent a showing of cause and prejudice or a fundamental miscarriage of justice. McCleskey v. Zant, 499 U.S. 467, 489 (1991).

The Ninth Circuit has determined that § 2244(b) must be applied claim-by- claim to a new petition, because some claims may qualify as impermissibly successive while others may not. See Allen v. Ornoski, 435 F.3d 946, 951, 958 (9th Cir. 2006) (concluding that because the petitioner could have brought one of his two claims earlier, "it is a 'second or successive' habeas application").


Creech had a full and fair opportunity to challenge his conviction in the first habeas corpus action, and he took advantage of that opportunity. In his 1986 Petition, Creech attacked the validity of his guilty plea on the grounds that he did not understand the elements of the charge, his mind was clouded by depression, medication, and threats to his family, and Kehne was constitutionally ineffective. (Case No. CV 86-1042-HLR, Docket No. 32, pp. 2-3.) Judge Ryan and the Ninth Circuit Court of Appeals rejected all claims challenging the conviction, with the Ninth Circuit finding that Kehne's "actions were reasonable under the circumstances" and that Creech had voluntarily and intelligently entered his guilty plea. Creech v. Arave, 947 F.2d 873, 877, 878-80 (9th Cir. 1991).

Therefore, all claims, old or new, that challenge the 1981 guilty plea and first-degree murder conviction are "second or successive" claims for purposes of AEDPA. Creech has not established that the Ninth Circuit has authorized him to proceed, and absent such authorization this Court lacks jurisdiction over these claims.

Accordingly, the following claims will be dismissed without further comment: that part of Claim 4 alleging ineffective assistance of trial counsel before the 1995 resentencing proceeding (as alleged in ¶¶ 99(c), (d), (h), (I), (k)), Claim 9 (Faretta violation), the remaining portion of Claim 10 (deprivation of counsel at the guilty plea hearing), and the remaining portion of Claim 11 (conflict of interest because counsel was "a witness to the plea").

Creech may proceed with all properly exhausted claims of constitutional error that arise from the 1995 resentencing proceeding and judgment, because this is his first opportunity to litigate those issues in a federal habeas proceeding.*fn2 See, e.g., Hill, 297 F.3d at 897.


Denial of Right to Confrontation and a Reliable Sentencing Hearing (Claim 1)

Relying on Crawford v. Washington, 541 U.S. 36 (2004), and Gardner v. Florida, 430 U.S. 349 (1977), Creech contends that the sentencing court's consideration of hearsay information in the updated presentence investigation report ("PSI") violated his rights to confrontation and due process of law. On appeal from the resentencing proceeding, the Idaho Supreme Court rejected the legal claim on res judicata grounds after finding that it had already been addressed in the first appeal. Creech, 966 P.2d at 9-10. Whether this Court's review is restricted by 28 U.S.C. § 2254(d) or is de novo, it concludes that Creech is not entitled to habeas relief.

In Crawford the United States Supreme Court held that testimonial hearsay is not admissible at a criminal trial unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. 541 U.S. at 59. The Supreme Court has already held that Crawford is not retroactive to cases that were final when it was decided. Whorton v. Bockting, 549 U.S. 406, 421 (2007). Creech's case became final long before Crawford was issued, and the Supreme Court precedent in effect at the time of Creech's last sentencing hearing did not hold that a defendant had a right to confront all adverse witnesses at a capital sentencing hearing. Williams v. New York, 337 U.S. 241 (1949). The portion of this claim that relies on the Confrontation Clause, as interpreted by Crawford, is barred under the non-retroactivity principles of Teague v. Lane, 489 U.S. 288, 301 (1989).

Creech also relies on Gardner v. Florida, 430 U.S. 349 (1977). In Gardner, the Supreme Court held that a defendant is denied due process of law when a death sentence is based, at least in part, on information that the defendant had no opportunity to explain or deny. Id. at 362.

In this case, the bulk of the information in the updated PSI was compiled and given to Creech before the original sentencing hearing in 1982, and to the extent that he contends that he did not have an opportunity to explain or deny that information in the 13 years before the resentencing hearing, his contention is not persuasive. The new information, consisting primarily of Creech's prison disciplinary record since the early 1980s, was given to his counsel in the updated PSI five months before the resentencing hearing. The State's witness who compiled the disciplinary records testified and was cross-examined at the resentencing hearing. Therefore, Creech was also given a sufficient opportunity to meet and rebut all new information.

Creech counters that because the state district court denied his counsel's request for funds to locate the declarants of hearsay in the PSI, he was deprived of an opportunity to contest the reliability of that information. (Docket No. 245, pp. 42-43.) This argument disregards that counsel was aware of the majority of the material since 1981, had started preparing for the resentencing over a year before the hearing was held, and had the updated PSI in his possession for several months. Moreover, counsel made his request for additional funds on the last day of the resentencing hearing, and it was not supported with specificity.

For these reasons, Creech has not shown that he lacked a meaningful opportunity to explain or deny information upon which the state court relied in imposing a death sentence, and relief on Claim 1 shall be denied.

Double Jeopardy (Claims 2 and 3)

In his second claim, Creech alleges that the sentencing court changed its view of the murder from one in which Jensen initially attacked and provoked Creech (1982 Findings) to a planned "execution" (1995 Findings). According to Creech, once the original finding in mitigation was made, the court was precluded by the Double Jeopardy Clause of the Fifth Amendment from changing that fact.

In rejecting this claim, the Idaho Supreme Court concluded that because "no reviewing court has ever held in this case that the State failed to prove its case that the death penalty was the appropriate punishment .... the Double Jeopardy Clause did not bar the trial court from resentencing Creech to death." Creech, 966 P.2d at 8. Creech has not demonstrated that this decision is contrary to or involved an unreasonable application of clearly established federal law, or that it was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

In Bullington v. Missouri, 451 U.S. 430, 439 (1981), the United States Supreme Court held that the Double Jeopardy Clause attaches to capital sentencing hearings that "have the hallmarks of the trial on guilt or innocence." When a defendant is "acquitted" of the death penalty after a sentencing trial, then, the prosecution is barred from seeking a death sentence at a retrial. Id. at 445. This holds true whether the factfinder is a jury or a judge. See Arizona v. Rumsey, 467 U.S. 203, (1984) (a trial court's "judgment, based on findings sufficient to establish legal entitlement to the life sentence, amounts to an acquittal on the merits and, as such, bars any retrial of the appropriateness of the death penalty.") But when no factfinder has determined that the prosecution failed to carry its burden to prove that the death penalty is an appropriate punishment, the defendant may again be subject to a death sentence. Poland v. Arizona, 476 U.S. 147, 155-57 (1986).

The Idaho Supreme Court reasonably concluded that this issue was controlled by Poland rather than Bullington and Rumsey. Creech has never been "acquitted" of the death penalty. In 1982, in spite of its finding that Jensen provoked the attack, the sentencing court still found five statutory aggravating circumstances beyond a reasonable doubt, and, after weighing the mitigating circumstances against those aggravators, concluded that a death sentence was warranted. When the Ninth Circuit ordered habeas relief, it made no finding that the prosecution had failed to carry its burden of proof. In other words, no factfinder or court has concluded at any time that Creech was legally entitled to a life sentence.

Nevertheless, Creech argues that the doctrine of collateral estoppel, also known as issue preclusion, prevented the state court from altering the previous finding. The Court is not persuaded.

Issue preclusion is "a part of the Fifth Amendment's guarantee against double jeopardy." Ashe v. Swenson, 397 U.S. 436, 442 (1970). In Ashe, the Supreme Court defined issue preclusion as "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. Later, the Court clarified that "issue preclusion is a plea available to prevailing parties. The doctrine bars relitigation of determinations necessary to the ultimate outcome of a prior proceeding." Bobby v. Bies, 129 S.Ct. 2145, 2149 (2009).

Bies informs the result in the present case. There, the defendant was sentenced to death, despite a mitigation finding that he was mildly mentally retarded. 129 S.Ct. at 2148-49. After the Supreme Court determined that mentally retarded defendants are categorically exempt from execution, see Atkins v. Virginia, 536 U.S. 304 (2002), the state court ordered a re-examination of Bies' mental state, but a federal court granted habeas relief, concluding that the Double Jeopardy ...

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