FILED
FOR PUBLICATION
FEB 23 2024
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. CREECH, No. 24-275
Petitioner-Appellant, D.C. No. 1:23-cv-00463-AKB
v.
OPINION
TIM RICHARDSON, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
Brailsford, District Judge, Presiding
Argued and Submitted February 22, 2024
San Francisco, California
Before: William A. Fletcher, Jay S. Bybee, and Morgan Christen, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Thomas Eugene Creech, a death row inmate in Idaho,
appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. His
execution is currently scheduled for February 28, 2024, less than a week from now.
In 1981, while serving two life sentences for first-degree murder, Creech
killed a fellow prisoner and was sentenced to death. The circumstances of the
killing and Creech’s previous post-conviction proceedings are discussed in our
opinion in Creech v. Richardson, 59 F.4th 372 (9th Cir. 2023).
Creech filed two habeas petitions in federal court before filing the current
petition. His first petition led to the vacatur of his sentence and a resentencing
hearing in 1995. See id. at 378–79. At that hearing, the sentencing judge again
imposed a death sentence, acting without a jury as authorized by then-applicable
Idaho law. See
id. at 379–80. Creech challenged his renewed death sentence in a
second federal habeas petition. Litigation of that petition ended in the district court
in 2017. We affirmed the district court’s denial of habeas in 2023.
Id. at 394.
Creech filed the current petition in October 2023, shortly after his death
warrant was issued and his execution date was set. His petition raises an Eighth
Amendment claim that society’s evolving standards of decency since Ring v.
Arizona, 536 U.S. 584 (2002), have rendered unconstitutional a death sentence
imposed by a judge rather than a jury. Ring held that the Sixth Amendment
prohibits judicial factfinding of facts necessary to the imposition of the death
penalty; such facts must instead be found by a jury. See
id. at 609. The Sixth
Amendment rule of Ring does not apply retroactively to sentences, like Creech’s,
that were final on direct review before Ring was decided. Schriro v. Summerlin,
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542 U.S. 348, 358 (2004). Creech argues that the Eighth Amendment
independently requires that a death sentence be imposed by a jury.
The district court dismissed Creech’s petition. The court concluded that the
petition was barred by 28 U.S.C. § 2244(b), which mandates dismissal of most
claims filed in “second or successive” federal habeas petitions.
We affirm. A later-filed petition is precluded as second or successive under
28 U.S.C. § 2254 if the claim it raises was ripe and could have been brought in the
prisoner’s prior petition challenging the same judgment. Panetti v. Quarterman,
551 U.S. 930, 945 (2007). Our holding in Allen v. Ornoski,
435 F.3d 946 (9th Cir.
2006), makes clear that Creech’s current petition is precluded as second or
successive.
In Allen, we considered a so-called Lackey claim brought in a prisoner’s
second federal habeas petition—a claim that “suffering the ravages of death row
for a lengthy duration violate[s] the Eighth Amendment.” Id. at 956 (citing Lackey
v. Texas,
514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari)).
Petitioner Allen argued “that his execution would violate the Eighth Amendment
because of the inordinate length of time, twenty-three years, he has spent on death
row and the ‘horrific’ conditions of his confinement.” Id. at 950.
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We concluded in Allen that the petition was precluded as second or
successive. We distinguished Allen’s claim from the claim brought in Ford v.
Wainwright, 477 U.S. 399 (1986). The Supreme Court held in Ford that “the
Eighth Amendment prohibits a State from carrying out a sentence of death upon a
prisoner who is insane.”
Id. at 409–10. We wrote in Allen that, unlike a Ford
claim, “a Lackey claim does not become ripe only after a certain number of years
or as the final hour of the execution nears. There is no fluctuation or rapid change
at the heart of a Lackey claim, but rather just the steady and predictable passage of
time.” Allen,
435 F.3d at 958.
Much the same is true of Creech’s current Eighth Amendment claim. The
proposed factual predicate for Creech’s claim is a national movement away from
executions of judge-sentenced prisoners since Ring, evidencing, in Creech’s view,
an evolving standard of decency.
Creech argues that his evolving standards of decency claim became ripe only
after a moratorium on all executions in Arizona was put in place in January 2023.
We disagree.
Even when Ring was decided in 2002, only a small minority of jurisdictions
authorized judge-imposed death sentences. See Ring, 536 U.S. at 608 n.6; see also
Walton v. Arizona,
497 U.S. 639, 710–11 (1990) (Stevens, J., dissenting),
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overruled by Ring v. Arizona, 536 U.S. 584 (2002); Woodson v. North Carolina,
428 U.S. 280, 291–92 (1976) (plurality opinion). It was clear, once Ring was
decided, that the number of executions of judge-sentenced capital defendants
would decrease in the years to follow as those defendants were executed, were
granted clemency, or died of natural causes, or as their States imposed broader
restrictions on executions generally
Even though some judge-sentenced capital defendants are on death row in
Arizona, Creech does not claim that Arizona’s moratorium was motivated by
standards-of-decency concerns about the execution of those judge-sentenced
defendants. In support of his argument that the reason for Arizona’s moratorium
is irrelevant, Creech cites Hall v. Florida, 572 U.S. 701 (2014), in which the
Supreme Court mentioned states that had entirely abolished or suspended their use
of the death penalty as part of its discussion of the evidence indicating society’s
“rejection of the strict 70 [IQ] cutoff” for claims of incapacity to be executed under
Atkins v. Virginia,
536 U.S. 304 (2002). Hall, 572 U.S. at 716–18. Creech also
points to Roper v. Simmons,
543 U.S. 551 (2005), in which the Court said, “a
State’s decision to bar the death penalty altogether of necessity demonstrates a
judgment that the death penalty is inappropriate for all offenders, including
juveniles.”
Id. at 574.
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Creech is correct that the Court has, at times, considered categorical death-
penalty bans in assessing evolving standards of decency with respect to particular
categories of death sentences. But even assuming the correctness of Creech’s
interpretation of the Supreme Court’s caselaw, his argument rests entirely on the
claim that Arizona’s moratorium is evidence of evolving standards of decency with
respect to judge-imposed death sentences. Even on that assumption, he has not
shown that his claim was unripe in the years immediately following Ring, when
judge-sentenced executions were practiced in only a small minority of
jurisdictions, and when the Supreme Court in Ring had rejected judicial factfinding
that exposes a capital defendant to death. Moreover, even assuming that
categorical execution moratoria can provide a basis for Creech’s Eighth
Amendment claim, several such bans had been imposed in the years before
Creech’s habeas proceedings ended in the district court. See, e.g., Hall, 572 U.S. at
716 (noting Oregon’s 2011 moratorium); Cooper v. Newsom,
13 F.4th 857, 861–62
(9th Cir. 2021) (discussing, inter alia, a moratorium on California executions
imposed in 2006); Commonwealth v. Williams,
129 A.3d 1199, 1202 (Pa. 2015)
(discussing Pennsylvania’s 2015 moratorium).
We therefore conclude that Creech could have brought a ripe Eighth
Amendment claim during the pendency of his previous petition in district court.
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Once Creech’s claim became ripe, the passage of time and later events were
irrelevant to the ripeness determination. See Allen, 435 F.3d at 958 (“[T]hat the
passage of time makes [Allen’s] Lackey claim stronger is irrelevant to ripeness,
because the passage of time strengthens any Lackey claim.”).
The judgment of the district court is AFFIRMED. We DISMISS as moot
Creech’s motion to stay his execution while this appeal is pending.
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