Thomas E. Creech v. TIM RICHARDSON, Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. CREECH,
Petitioner-Appellant,
v.
TIM RICHARDSON, Warden,
Respondent-Appellee.
No. 24-275
D.C. No.
1:23-cv-00463-
AKB
OPINION
Appeal from the United States District Court
for the District of Idaho
Amanda K. Brailsford, District Judge, Presiding
Argued and Submitted February 22, 2024
San Francisco, California
Filed February 23, 2024
Before: William A. Fletcher, Jay S. Bybee, and Morgan B.
Christen, Circuit Judges.
Per Curiam Opinion

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2 CREECH V. RICHARDSON
SUMMARY*
Habeas Corpus/Death Penalty
The panel affirmed the district court’s judgment
dismissing Idaho death row inmate Thomas Eugene
Creech’s 28 U.S.C. § 2254 habeas corpus petition as barred
by 28 U.S.C. § 2244(b), which mandates dismissal of most
claims filed in “second or successive” federal habeas
petitions.
Creech’s execution is scheduled for February 28, 2024.
The panel held that Allen v. Ornoski, 435 F.3d 946 (9th
Cir. 2006), makes clear that Creech’s current petition, his
third, is precluded as second or successive.
Creech’s current petition raised 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.
Ring does not apply retroactively to sentences, like Creech’s,
that were final on direct review before Ring was decided.
Creech argued that, in light of a national movement away
from executions of judge-sentenced prisoners since Ring, the
Eighth Amendment independently requires that a death
sentence be imposed by a jury.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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CREECH V. RICHARDSON 3
Applying Allen, the panel disagreed with Creech’s
argument 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; the panel wrote
that Creech did not show that his claim was unripe in the
years immediately following Ring. The panel therefore
concluded that Creech could have brought a ripe Eighth
Amendment claim during the pendency of his previous
petition in the district court.
COUNSEL
Jonah Horwitz (argued), Assistant Federal Public Defender,
Capital Habeas Unit, Federal Public Defenders of Idaho,
Boise, Idaho, for Petitioner-Appellant.
L. LaMont Anderson (argued), Deputy Attorney General,
Idaho Office of the Attorney General, Boise, Idaho, for
Respondent-Appellee.

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4 CREECH V. RICHARDSON
OPINION
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

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CREECH V. RICHARDSON 5
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, 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.
We concluded in Allen that the petition was precluded as
second or successive. We distinguished Allen’s claim from

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6 CREECH V. RICHARDSON
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), 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.

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CREECH V. RICHARDSON 7
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.
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

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8 CREECH V. RICHARDSON
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. 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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