Creech v. State

                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 50336

THOMAS EUGENE CREECH,                     )
                                          )
      Petitioner-Appellant,               )                  Boise, February 2024 Term
                                          )
v.                                        )                  Opinion: February 9, 2024
                                          )
STATE OF IDAHO,                           )                  Melanie Gagnepain, Clerk
                                          )
      Respondent.                         )
__________________________________________)


       Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
       Ada County. Jason D. Scott, District Judge.

       The district court’s judgment is affirmed.

       Erik R. Lehtinen, State Appellate Public Defender, attorneys for Appellant. Garth
       McCarty argued.

       Raúl R. Labrador, Idaho Attorney General, Boise, attorneys for Respondent. L. LaMont
       Anderson argued.

                            _________________________________
BEVAN, Chief Justice.
       Thomas Eugene Creech appeals from the district court’s order dismissing his successive
post-conviction petition as untimely under Idaho Code section 19-2719. Creech argues that his
petition was timely because the United States Supreme Court’s decision in Shinn v. Ramirez, 

 (2022), represents a triggering event that re-started the forty-two-day period for filing a
petition under Idaho Code section 19-2719. Therefore, Creech argues that the district court should
hear his ineffective assistance of counsel (“IAC”) claim. For the reasons stated below, we affirm.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
       Creech was a prisoner at the Idaho State Correctional Institution in 1981 when he killed a
fellow prisoner, David Jensen. State v. Creech (Creech I), 

, 

                     1
(1983).1 Creech pleaded guilty to first-degree murder the same year and was sentenced to death by
the district court judge in 1982. 

, 

. Creech appealed his conviction and
death sentence in 1983, and this Court affirmed both. See generally, 

, 

.
        While Creech’s first appeal was pending before this Court, Creech filed his first petition
for post-conviction relief asking to withdraw his guilty plea. Creech v. State (Creech II), 

, 

 (1985). The district court denied the motion, and this Court affirmed. 

        Soon after, Creech filed his first habeas petition. Creech v. Arave (Creech III), 

 (9th Cir. 1991). The federal district court denied that petition, and the Ninth Circuit later
affirmed in part and reversed in part. 

 Creech appealed to the United States Supreme Court,
which granted certiorari on one issue and remanded for resentencing because the trial court did not
allow Creech to present new mitigation evidence during his 1983 sentencing. Arave v. Creech
(Creech IV), 

 (1993).
        The case was remanded for resentencing and, after hearing the new mitigation evidence,
the district court judge again sentenced Creech to death in 1995. The district court later denied his
petition for post-conviction relief, which included several IAC claims and a claim that Creech’s
death sentence violated the Sixth Amendment because it did not include jury participation. State
v. Creech (Creech V), 

, 

 (1998). The 1995 death sentence remains in effect
today and is the sentence from which Creech’s current, successive post-conviction case derives.
        On appeal in 1998, this Court affirmed Creech’s new death sentence and also affirmed the
denial of post-conviction relief. 

, 

. We held in part that the Ninth Circuit had
rejected the argument that the trial court had disregarded Creech’s biological condition as
mitigating evidence in his 1995 resentencing. 

, 

. Regarding post-conviction issues in that case, this Court concluded that Creech had failed to establish an IAC
claim arising out of his 1995 resentencing, and held that Creech’s IAC claim was conclusory and
without authority. 

, 

.
        In June 1999, Creech initiated a new federal habeas proceeding. Creech v. Hardison, No.
CV 99-0224-S-BLW, 

 (D. Idaho March 31, 2010) (unpublished). As part of the
habeas proceeding, the federal district court stayed Creech’s execution so he could file another


1
 Creech’s prior cases are complex and begin in the 1970s. The history is partly recounted in Creech v. Richardson,

 (9th Cir. 2022), cert. denied, 

 (2023). For ease of reference, this opinion only
summarizes the relevant appeals and post-conviction claims that predate this appeal.


                                                        2
petition in state court. 

 at 

, *4 n.1. With that stay in place, Creech filed his
first successive petition for post-conviction relief in state district court in 2000. Creech v. State
(Creech VI), 

, 

 (2002). Creech’s petition was dismissed as
untimely in state court under Idaho Code section 19-2719. 

 This Court affirmed, holding, in
part, that Creech’s IAC claim was untimely under Idaho Code section 19-2719(5) because that
claim was known or reasonably could have been known when Creech filed his first petition for
post-conviction relief. 

, 

-91.
        As a result, the stay granted in Creech’s 1999 federal habeas proceedings was lifted and
that proceeding resumed in federal court. Hardison, 

, at *4. The federal district
court denied all of Creech’s habeas claims, including his IAC claim. See 

 After a protracted
series of subsequent habeas proceedings, Creech appealed to the Ninth Circuit. Creech v.
Richardson (Creech VIII) 

, as amended February 6, 2023, (9th Cir. 2022), cert.
denied, 

 (2023). While the Ninth Circuit was considering Creech’s appeal, the United
States Supreme Court decided Shinn v. Ramirez, 

 (2022). There, the Supreme Court
held that “a federal habeas court may not conduct an evidentiary hearing or otherwise consider
evidence beyond [what was produced in state court] based on ineffective assistance of state
postconviction counsel.” Shinn, 

.
        After Shinn was decided, Creech asked the Ninth Circuit for permission to file replacement
or supplemental briefs, arguing that he would have made different strategic choices had he known
Shinn would prevent him from introducing new evidence in federal court. Creech VIII, 

. The Ninth Circuit denied that request because Creech had already “filed such briefs when he
appealed the district court's denial of his second amended habeas petition”; and therefore, the filing
of replacement or supplemental briefs “would thus make no difference to the outcome.” 

 The
Ninth Circuit acknowledged the major change to habeas proceedings in Shinn, but explained that
its decision did not hinge on that change: “Even in the absence of [Shinn], we would have agreed
with the district court.” 

. The Ninth Circuit ultimately affirmed the federal district court.

. The United States Supreme Court denied certiorari on October 10, 2023. Creech v.
Richardson, 

 (2023).
        While Creech’s habeas petition was pending, he filed the successive petition for post-conviction relief in state district court that is now at issue. After hearing oral argument, the district



                                                   3
court dismissed Creech’s petition as untimely under Idaho Code section 19-2719. Creech timely
appealed to this Court.
       After the United States Supreme Court denied certiorari in Creech’s federal case, the State
requested a death warrant on October 12, 2023, and one was issued scheduling his execution for
November 8, 2023. Creech petitioned the Idaho Commission of Pardons and Parole for clemency.
Subsequently, on October 19, 2023, the district court stayed Creech’s execution, pending the
commutation proceedings. The Idaho Commission of Pardons and Parole denied Creech’s
clemency request on January 29, 2024. On January 30, 2024, the district court signed a new death
warrant setting Creech’s execution date for February 28, 2024.

                                       II. ISSUES ON APPEAL
   1. Did the district court err by dismissing Creech’s petition as untimely?
   2. Does the alleged ineffective assistance of Creech’s initial post-conviction counsel excuse
      his failure to timely raise a trial IAC claim?
                                    III. STANDARDS OF REVIEW
       “Whether a successive petition for post-conviction relief was properly dismissed pursuant
to [Idaho Code section] 19-2719 is a question of law. This Court reviews questions of law de
novo.” Dunlap v. State, 

, 292, 

 (2015) (quoting Fields v. State, 

, 

 (2013)). “A court must summarily dismiss any successive
petition that does not meet the requirements of [Idaho Code section] 19-2719(5).” McKinney v.
State, 

, 

 (1999).
                                           IV. ANALYSIS
       Creech’s central argument on appeal is that, because Shinn now limits federal habeas
proceedings to the facts previously raised in the state court, he should be allowed to file a
successive petition to develop the facts supporting his claim that post-conviction counsel was
ineffective by failing to raise an IAC claim arising out of his trial. Doing otherwise, Creech asserts,
will prevent him from having his trial IAC claim heard in any court. As explained below, we
disagree.
   A. The district court did not err in dismissing Creech’s successive petition as untimely.
       The district court dismissed Creech’s successive petition as untimely under Idaho Code
section 19-2719(3) and (5). Creech asserts that by filing his petition within forty-two days of the
United States Supreme Court’s decision in Shinn, his petition was timely and the district court


                                                  4
erred by dismissing it. Creech’s argument turns on the conclusion that Shinn was a triggering event
for purposes of reinitiating the forty-two-day period for pursuing a post-conviction relief claim
under Idaho Code section 19-2719(5) because, even though Shinn does not create a new cause of
action, the fundamental procedural change it embodies constitutes a triggering event that would
permit the filing of a successive petition under Idaho code section 19-2719(3) and (5).
       We disagree that Shinn is a triggering event that offers a new opportunity to seek post-conviction relief in state court. As the district court correctly recognized, Shinn interpreted the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 

(e)(2), to prohibit a federal habeas court from conducting an evidentiary hearing or otherwise
considering evidence beyond what was produced in state court based on ineffective assistance of
state post-conviction counsel. See 

. However, Shinn has no bearing on state statutes,
including Idaho Code section 19-2719, that establish a statute of limitations for bringing IAC
claims. See Hairston v. State, 

, 465–66, 

, 47–48 (2020). Moreover, Shinn
did not adopt a new or broadened interpretation of the United States Constitution that binds state
courts as previous cases cited by Creech have done. See, e.g., Pizzuto v. State, 

,

 (2008) (recognizing that Idaho’s adoption of Idaho Code section 19-2515A,
which prohibited imposing the death penalty upon intellectually disabled persons after the United
States Supreme Court’s decision in Atkins v. Virginia, 

 (2002), created a triggering
event by establishing new substantive law); Johnson v. State, 

, 

 (2017) (recognizing that a United States Supreme Court decision making
mandatory fixed life sentences for juveniles unconstitutional and requiring consideration of a
child’s youth and circumstances before imposing a fixed life sentence was a triggering event for
timely successive petition); see also Windom v. State, 

, 

, 155-
57 (2017) (Windom’s motion to amend his post-conviction petition one day after a United States
Supreme Court decision changing substantive constitutional law was timely). Thus, Shinn does
not establish new substantive grounds, as do the cases just cited, to open the door for Creech to
seek post-conviction relief in state court from his decades-old state conviction.
       Creech’s claim was already time-barred when Shinn was announced, and nothing in Shinn
resuscitates that claim. Because Shinn merely reinforced the primacy of states’ proceedings in
federal habeas cases, there is no legal mechanism by which Shinn can be understood to renew the
period allowed by section 19-2719(5) for filing successive post-conviction claims in capital cases.

                                                 5
Further, Shinn did not, as Creech asserts, “weld off” his opportunity to develop the facts of his
case in federal court. As his case history shows, Creech presented the facts of his 1995 resentencing
IAC claim in federal district court, and that court ruled against him. Creech VIII, 

-
81. Creech’s appeal from the federal district court’s denial of relief in the Ninth Circuit was
pending when Shinn was decided. 

. While the Ninth Circuit explained it could not
consider new evidence in light of Shinn, the court elaborated that, in either case, Shinn would not
have changed the outcome of the proceedings. 

. The Ninth Circuit wrote, “[e]ven in the
absence of [Shinn], we would have agreed with the district court.” 

 Creech has asserted his IAC
claim in numerous state and federal courts at nearly every stage of his four decades of litigation.
His assertion to the contrary now notwithstanding, that Shinn unfairly barred him from arguing his
IAC claim in any court, is unfounded.
       Idaho Code section 19-2719(3) gives a petitioner who has been sentenced to death forty-two days from the filing of the judgment imposing the death sentence to file “any legal or factual
challenge to the sentence or conviction that is known or reasonably should have been known.”
Creech’s guilt-phase claim of IAC was known or reasonably could have been known when he filed
his initial post-conviction petition after he pleaded guilty. His resentencing claim for IAC was
known or reasonably could have been known when he filed his first resentencing post-conviction
petition. Creech has failed to meet his heightened burden of showing that the IAC claim in his
successive petition fit within the narrow exception provided by Idaho Code section 19-2719(5)(a).
As a result, Creech’s petition is untimely under Idaho Code section 19-2719(5).
   B. The ineffectiveness of Creech’s initial post-conviction counsel does not excuse his
      failure to timely raise his trial IAC claim.
       Creech next argues that this Court should excuse his failure to raise, or adequately raise,
his trial IAC claim in state court because that failure is attributable to the ineffectiveness of his
post-conviction counsel. Creech maintains that his trial IAC claim was not supported with
adequate evidence earlier because his initial post-conviction counsel was ineffective. According
to Creech, he did not have effective counsel until well after the forty-two-day period for bringing
a successive petition under Idaho Code 19-2719 had run. Creech bases his argument on the Sixth
Amendment right to counsel. He also argues that the Idaho Constitution provides a broader right
to counsel than the United States Constitution.
       “The courts of Idaho shall have no power to consider any claims for relief as have been so
waived or grant any such relief.” I.C.§ 19-2719(5). Thus, an untimely claim for ineffective
                                                  6
assistance of post-conviction counsel under Idaho Code section 19-2719 in a successive petition,
whether under the federal or state constitutions, is waived.
       In Martinez v. Ryan, 

 (2012), the United States Supreme Court held that
the ineffective assistance of post-conviction counsel in state court could excuse procedural default
in federal habeas proceedings. Although not phrased in so many words, Creech’s request to create
a new exception for successive IAC claims if the state court finds ineffective assistance of post-conviction counsel is the equivalent of superimposing Martinez on Idaho Code section 19-2719.
But section 19-2719 forecloses that argument. Under section 19-2719, there is only one exception–
and it is limited to claims that were not known and could not reasonably have been known when
the first petition was filed. Moreover, in Johnson v. State, 

, 

 (2017)
we previously rejected the notion that Martinez is binding on this Court:
       [W]hile Martinez made it obligatory for federal habeas courts to hear claims of
       ineffective assistance of trial counsel if initial post-conviction counsel was not
       provided or failed to properly raise those issues, Martinez is explicitly equitable in
       nature. Martinez, 566 U.S. at 14–15. Because the holding in Martinez is not a
       constitutional holding it is not binding on state courts. Id. at 16 (“In addition, state
       collateral cases on direct review from state courts are unaffected by the ruling in
       this case.”). Accordingly, we are not obligated to follow Martinez in our state
       courts. And we choose not to.
Id. at 228, 

.
       Thus, we analyze the question before us based on long-standing Idaho law, not on the
proffered equitable grounds cited in Martinez. In McKinney, we held that when Idaho Code section
19-2719 applies to a petition, “[i]neffective assistance of counsel in [petitioner’s] first post-conviction proceeding does not excuse his failure to raise issues that should reasonably have been
known.” 

, 

; see also Row v. State, 

, 

 (2001). This holding directly answers the questions Creech has raised here. We decline
to adopt Creech’s argument to excuse his untimely IAC claim because that claim was or reasonably
should have been known when he filed his first petition.
       We turn to Creech’s argument that the Idaho Constitution provides greater guarantees than
the Sixth Amendment, thus allowing him to file an untimely claim notwithstanding the prohibition
of Idaho Code section 19-2719. As a threshold matter, Creech has the burden of establishing the
claim in his successive petition is timely under Idaho Code section 19-2719.
       While we recognize that this Court has stated that “the Idaho State Constitution potentially
can be read to afford a broader right to effective counsel than does the federal Constitution[,]”
                                                  7
State v. Charboneau, 

, 

 (1989) (quotes and citation omitted),
this Court has never varied from equating the rights preserved under the Idaho Constitution with
the rights guaranteed under the Sixth Amendment. We recently explained in Marsalis v. State, that
the right to effective assistance of counsel, under both the Sixth Amendment and Article 1, Section
13 of the Idaho Constitution is the same:
       The right to counsel in criminal actions brought by the state of Idaho is guaranteed
       by the Sixth Amendment to the United States Constitution and Article 1, Section
       13 of the Idaho State Constitution. The right to counsel is the right to the effective
       assistance of counsel. This Court analyzes claims for ineffective assistance of
       counsel under the two-prong test set forth in Strickland v. Washington, 

, 

, 

 (1984). “To prevail under Strickland, the
       petitioner must show: (1) ‘that counsel's performance was deficient,’ and (2) ‘that
       the deficient performance prejudiced the defense.’” Dunlap, 

, 

 (quoting Strickland, 

, 

).

, 

 (2020) (some citations and quotations omitted). To the
extent that it was unclear before, we reiterate now: the right to effective assistance of counsel under
the Idaho Constitution is equivalent to the applicable Sixth Amendment standard under the United
States Constitution set forth in Strickland.

                                          V. CONCLUSION
       The district court’s summary dismissal of Creech’s petition for post-conviction relief on
the grounds that it was not timely is affirmed. Shortly before oral argument, Creech moved to stay
his execution date of February 28, 2024, as set forth in the death warrant. Having issued this
opinion more than fourteen days before February 28, there is no need to stay the execution date
set forth in the death warrant. Creech’s motion to stay execution is therefore denied.

       Justices BRODY, MOELLER, and MEYER, and Justice Pro Tem BURDICK CONCUR.




                                                  8