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. 10-99015
D.C. No.
1:99-cv-00224-BLW
OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted September 20, 2021
Pasadena, California
Filed July 20, 2022
Before: William A. Fletcher, Jay S. Bybee, and
Morgan Christen, Circuit Judges.
Opinion by Judge W. Fletcher

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CREECH V. RICHARDSON 2
SUMMARY*
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of Thomas
Eugene Creech’s second amended habeas corpus petition
challenging his death sentence.
In 1981, while serving two life sentences for multiple
convictions for first-degree murder, Creech beat a fellow
inmate to death. After pleading guilty, he was sentenced to
death in Idaho state court. Creech obtained federal habeas
relief with respect to his sentence, and was resentenced to
death in 1995. In a second petition, Creech thereafter
unsuccessfully sought federal habeas relief in the district
court.
The district court granted certificates of appealability
(COAs) as to two issues.
First, Creech argued that the district court improperly
denied part of Claim 4, in which he alleged that his attorneys
provided ineffective assistance of counsel (IAC) at his 1995
resentencing by failing to investigate and present mitigation
evidence in a timely and adequate fashion, failing to hire a
mitigation specialist, and relying on an unqualified mental
health expert. The Idaho Supreme Court rejected Creech’s
IAC claims at the 1995 resentencing, holding that Creek
failed to prove either deficient performance or prejudice
under Strickland v. Washington, 466 U.S. 668 (1984). In
* 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
denying habeas relief prior to this court’s remand under
Martinez v. Ryan, 566 U.S. 1 (2012), the district court
reaffirmed that holding. The panel agreed with the district
court that the Idaho Supreme Court reasonably found a lack
of prejudice under the second prong of Strickland. The panel
held further that under 28 U.S.C. § 2254(e)(2) the district
court was correct in declining to hold an evidentiary hearing
on the new evidence that Creech sought to introduce to
bolster his IAC resentencing claim.
Second, Creech argued under Martinez that five allegedly
procedurally defaulted sub-claims of IAC at the 1995
resentencing should be heard on the merits. Under Martinez,
a federal habeas court may find cause to excuse a procedural
default where (1) the underlying ineffective assistance claim
is substantial; (2) the petitioner was not represented or had
ineffective counsel during the state post-conviction review
(PCR) proceeding; (3) the state PCR proceeding was the
initial review proceeding; and (4) state law required (or
forced as a practical matter) the petitioner to bring the claim
in the initial review collateral proceeding. Only the first and
second requirements were at issue here, and in practical
effect, the prejudice analysis under both of those
requirements is the same—there must be a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. At the
time of the district court’s decision after this court’s Martinez
remand, the court could consider new evidence supporting a
claim of IAC by PCR counsel in determining whether a
petitioner satisfies the requirements of Martinez without
running afoul of 28 U.S.C. § 2254(e)(2) and Cullen v.
Pinholster, 563 U.S. 170 (2011). After the panel heard oral
argument, however, the Supreme Court decided Shinn v.
Ramirez, 142 S. Ct. 1718 (2022), greatly restricting the

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CREECH V. RICHARDSON 4
circumstances in which a federal habeas court deciding
Martinez claims may consider evidence beyond that already
contained in the state court record. The district court
considered all of the proffered new evidence and held that it
was insufficient to transform into a new IAC claim the part of
Claim 4 that alleged IAC during Creech’s 1995 resentencing.
The district court held that the sub-claims at issue in this
appeal were therefore not procedurally defaulted new claims
and that Martinez did not apply. The panel wrote that even
in the absence of Ramirez, it would have agreed with the
district court because most of the new evidence introduced on
federal habeas review in support of Creech’s argument that he
suffers from an organic disorder was duplicative of evidence
introduced during the 1995 resentencing. The panel reached
the same result under Ramirez. Because it could not consider
the evidence presented for the first time to the district court,
Creech’s Martinez claim necessarily fails.
Creech sought to appeal four uncertified issues.
The panel denied a COA as to Creech’s claims (1) that the
district court erred in summarily denying his motion for
reconsideration of its denial of his second habeas petition,
(2) that the Idaho Supreme Court violated the Due Process
Clause by refusing to allow him to withdraw his guilty plea
prior to his first resentencing, and (3) that the duration of
Creech’s confinement for his murder constitutes cruel and
unusual punishment in violation of the Eighth Amendment.
The panel granted a COA as to Creech’s argument under
Magwood v. Patterson, 561 U.S. 320 (2010), that claims in
his second federal habeas petition attacking his guilty plea are
not “second or successive” under 28 U.S.C. § 2244(b) and
should be decided on the merits. Based on Magwood and

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CREECH V. RICHARDSON 5
later cases decided by this circuit, the panel concluded that
because Creech’s original sentence was vacated and a new
sentence was imposed, the claims are not barred as second or
successive. Rather than remand the claims to the district
court, the panel denied them, holding that the Idaho courts
(1) did not unreasonably find Creech’s arguments as to trial
counsel’s purported conflict of interest to be without merit,
(2) did not unreasonably conclude that Creech failed to show
that trial counsel should have moved to withdraw his guilty
plea on the ground that Creech was incompetent, (3) did not
unreasonably conclude that Creech failed to show that IAC at
the guilt phase on the basis of trial counsel’s purported failure
to communicate with him, and (4) did not unreasonably reject
Creech’s claim that counsel’s failure to investigate his
purported history of violence led him to plead guilty rather
than insist on going to trial on a theory of self-defense.
COUNSEL
Jonah J. Horwitz (argued), Bruce D. Livingston, and Teresa
A. Hampton, Federal Defender Services of Idaho, Capital
Habeas Unit, Boise, Idaho; Denise Young, Tucson, Arizona;
for Petitioner-Appellant.
L. LaMont Anderson (argued), Chief, Capital Litigation Unit;
Lawrence G. Wasden, Attorney General; Attorney General’s
Office, Boise, Idaho; for Respondent-Appellee.

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CREECH V. RICHARDSON 6
OPINION
W. FLETCHER, Circuit Judge:
Petitioner-Appellant Thomas Eugene Creech appeals the
denial of his 28 U.S.C. § 2254 petition for a writ of habeas
corpus. In 1981, while serving two life sentences for multiple
convictions of first-degree murder, Creech beat a fellow
inmate to death. After pleading guilty, he was sentenced to
death in Idaho state court. Creech obtained federal habeas
relief with respect to his sentence. He was resentenced to
death in 1995. After the reimposition of the death penalty in
1995, in a second petition Creech unsuccessfully sought
federal habeas relief in federal district court.
The district court granted certificates of appealability
(“COAs”) as to two issues, and Creech appeals both of those
issues. First, Creech argues that the district court improperly
denied part of Claim 4 of his habeas petition, in which he
alleges that his attorneys provided ineffective assistance of
counsel (“IAC”) at his 1995 resentencing. Second, Creech
argues under Martinez v. Ryan, 566 U.S. 1 (2012), that five
allegedly procedurally defaulted sub-claims of IAC at the
1995 resentencing should be heard on the merits.
In addition, Creech seeks to appeal four uncertified issues.
First, Creech argues that the district court erred in summarily
denying reconsideration of its decision denying relief under
Martinez. Second, Creech argues that the Idaho courts
unconstitutionally prevented him from withdrawing his guilty
plea. Third, Creech argues under Magwood v. Patterson,
561 U.S. 320 (2010), that claims in his second federal habeas
petition are not “second or successive” under 28 U.S.C.
§ 2244(b) and should be decided on the merits. Fourth,

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CREECH V. RICHARDSON 7
Creech argues under Lackey v. Texas, 514 U.S. 1045 (1995),
that we should remand this case for the district court to
determine whether the duration of his confinement while
awaiting execution constitutes cruel and unusual punishment
under the Eighth Amendment.
We affirm the district court on the two certified issues.
We grant a COA as to the third uncertified issue and affirm
the district court on that issue. We deny COAs as to the first,
second, and fourth uncertified issues.
I. Background
A. The Crime and Guilty Plea
While serving life sentences for first-degree murder,
Creech beat to death a fellow inmate, David Dale Jensen, in
the maximum security tier of the Idaho State Correctional
Institution. Jensen, in prison for stealing a car, was twenty-
three years old and suffered from physical and mental
disabilities. He was partially paralyzed, and a plastic plate
had been surgically embedded in his skull.
Creech attacked Jensen, repeatedly hitting him in the head
with a battery-filled sock until the plate embedded in his skull
shattered, his skull caved in, and blood was splashed on the
floors and walls. State v. Creech (“Creech I”), 670 P.2d 463,
465 (Idaho 1983). Creech took breaks during the beating.
After the sock broke and the batteries fell out, Creech kicked
Jensen in the throat while Jensen lay sprawled on the floor.
Jensen was found by a prison guard and taken to the hospital.
He died on the operating table the same day. Creech had four
prior murder convictions when he killed Jensen. Creech
claimed responsibility for killing twenty-six people, and the

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CREECH V. RICHARDSON 8
bodies of eleven of his victims were later recovered in seven
states.
Creech was charged with first-degree murder for killing
Jensen. Represented by the Idaho Public Defender’s office,
he initially entered a plea of not guilty. He later wrote a letter
to the trial judge, Judge Robert Newhouse, requesting a
change of plea hearing.
Judge Newhouse held a change of plea hearing in
response to Creech’s letter. Creech’s attorney, Rolf Kehne,
informed the court that Creech was pleading guilty against his
advice and requested a five-day continuance. Creech
indicated he did not want a continuance. Kehne then asked
to withdraw from representation on the ground that Creech
refused to follow his legal advice. Judge Newhouse denied
the request, stating, “I think he should at least have counsel
to inform him of the law and what’s going on.” After the
prosecution summarized the evidence it was prepared to
present at trial, and after a plea colloquy, Judge Newhouse
accepted Creech’s guilty plea and ordered a presentence
report.
B. Initial Sentencing Hearings
Creech’s first sentencing hearing was held in January
1982. The prosecution and the defense each presented expert
mental health testimony. Dr. Floyd LaMarr Heyrend, a
psychiatrist with training in neurology who had served as a
witness for Creech in one of Creech’s prior murder trials,
appeared for the prosecution. Dr. Heyrend had testified in the
prior trial that Creech had antisocial personality disorder and
acted impulsively without adequate forethought and sufficient
consideration for others, but that Creech could appreciate the

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CREECH V. RICHARDSON 9
wrongfulness of his conduct and conform that conduct to the
requirements of the law. At Creech’s 1982 sentencing
hearing, Dr. Heyrend testified that Creech could presently
“recognize the wrongfulness of his behavior,” but also that
there was some evidence that Creech exhibited schizotypal
thinking and could drift into florid psychosis during times of
stress. Based on prior testing in 1974 and 1975 and an
electroencephalogram conducted the week before his
testimony, Dr. Heyrend opined that Creech did not suffer
from organic brain disorder.
Psychologist Dr. John Stoner testified for Creech. He
testified that Creech had antisocial personality disorder,
schizotypal personality disorder, and borderline personality
disorder. Dr. Stoner testified that Creech’s strikingly uneven
performance on different types of mental tests “strongly
suggest[ed] the presence of an organic brain disorder.” He
testified that Creech would have been able to appreciate the
wrongfulness of his actions at the beginning of the encounter
with Jensen, but that, once the attack commenced, Creech had
“a rage reaction during which he would neither appreciate the
wrongfulness nor be able to conform his behavior; that is, he
went into a self-maintaining assaulting rage.” Dr. Stoner
testified that individuals with similar disorders to Creech had
no prospects of therapeutic rehabilitation.
Creech took the stand on his own behalf. He testified that
he had killed twenty-six people, a number of whom he
believed had gang-raped his deceased former wife. He
testified that two other inmates had asked him “to kill Jensen
for money,” and another inmate offered to help him escape
from the penitentiary in exchange for Jensen’s killing.
Creech testified that he gave someone a knife to give to
Jensen; that Jensen then attacked Creech with the knife as an

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CREECH V. RICHARDSON 10
effort to impress other inmates who “wouldn’t accept him
because he was partially crippled”; and that Creech then
killed Jensen. When asked on cross-examination what
sentence he wanted Judge Newhouse to give him, Creech
replied, “I want him to sentence me to death.”
On January 25, 1982, in a written decision, Judge
Newhouse sentenced Creech to death. He found in mitigation
that Creech had been justified in protecting himself against an
unprovoked attack by Jensen. However, he also found that
Jensen, “a young, inexperienced, handicapped man” with
“both physical and mental impairments,” had been “under the
complete domination and control” of Creech once the attack
began, and that Jensen’s murder, “once commenced, appears
to have been an intentional, calculated act.” Judge Newhouse
found that five statutory aggravating factors under Idaho
Code § 19-2515 had been proven beyond a reasonable doubt:
(1) Creech had previously been convicted of four first-degree
murders—two in 1976, one in 1979, and one in 1980;
(2) Creech “exhibited utter disregard for human life” during
Jensen’s murder; (3) Jensen’s murder came within the
definition of Idaho Code statutory aggravating factor § 18-
4003(c) because Creech was serving a first-degree murder
sentence at the time of the crime; (4) Jensen’s murder came
within the definition of Idaho Code statutory aggravating
factor § 18-4003(e) because Creech killed Jensen while both
were incarcerated in the Idaho State Correctional Institution;
and (5) Creech, “by prior conduct or conduct in the
commission of the murder at hand . . . exhibited a propensity
to commit murder which will probably constitute a continuing
threat to society.”
On February 24, 1983, the Idaho Supreme Court vacated
Creech’s death sentence because it had not been imposed in

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CREECH V. RICHARDSON 11
open court in the presence of Creech and his counsel as
required by Idaho law. On remand, Judge Newhouse held a
hearing at which Creech and his counsel were present. Judge
Newhouse read his previous findings into the record and
again sentenced Creech to death. Judge Newhouse did not
permit Creech to present additional mitigation evidence at the
second sentencing hearing. On May 23, 1983, a divided
Idaho Supreme Court affirmed. Creech I, 670 P.2d at 465.
C. First State Post-Conviction Review Proceedings
In state court post-conviction review (“PCR”)
proceedings before Judge Newhouse, Creech moved to
withdraw his guilty plea. He asked for no other relief. See
State v. Creech (“Creech II”), 710 P.2d 502, 504 (Idaho
1985). During a four-day evidentiary hearing in February
1984, Creech testified extensively about the details of
Jensen’s death and his reasons for pleading guilty. On March
6, 1984, Judge Newhouse denied Creech’s motion to
withdraw his plea. The Idaho Supreme Court affirmed. Id.
at 507.
D. First Federal Habeas Proceedings
Creech sought federal habeas corpus under 28 U.S.C.
§ 2254. Our court granted relief with respect to Creech’s
sentence. We held: (1) the state trial court committed
constitutional error when it refused to allow Creech to present
additional mitigation evidence at his second sentencing
hearing; (2) the trial court applied two statutory aggravating
factors, Idaho Code § 18-4003(c) and (e), without making the
requisite findings of specific intent to kill; and (3) the trial
court applied an unconstitutionally vague “utter disregard for
human life” aggravating factor. Creech v. Arave (“Creech

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CREECH V. RICHARDSON 12
III”), 947 F.2d 873, 881–85, 888 (9th Cir. 1991). The
Supreme Court reversed our third holding. It held that the
Idaho Supreme Court’s limiting construction of Idaho’s “utter
disregard” aggravating factor saved the instruction from
unconstitutionality. Arave v. Creech (“Creech IV”), 507 U.S.
463, 471 (1993). The Court did not disturb our other two
holdings, leaving intact our remand for resentencing. Id.
at 478–79.
E. Resentencing Hearing in 1995
Although no longer a public defender, Kehne represented
Creech at his third sentencing hearing, assisted by his law
partner John Adams. Kehne and Adams obtained several
continuances in order to investigate and prepare for the
hearing. A five-day resentencing hearing was held before
Judge Newhouse in March and April of 1995.
The defense called four witnesses, including Creech, at
the hearing. Creech’s sister, Virginia Plageman, and her
husband, Michael, each testified about Creech’s personality,
family background, and childhood. Virginia discussed the
family’s mental health problems, including depression, social
withdrawal, and anger management. She testified that
Creech’s maternal grandparents were cousins and that
Creech’s mother “left society” after her youngest son died at
the age of thirteen months. Virginia also described Creech’s
three surviving brothers, two of whom had been convicted of
murder or manslaughter.
Virginia testified that Creech’s childhood was
characterized by poverty and physical abuse, but she
specified that the abuse was not sexual. She testified that, on
one occasion, Creech fell down a staircase onto concrete; was

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CREECH V. RICHARDSON 13
knocked unconscious; bled from his nose, mouth, and
possibly ears; and was hospitalized for a few days before their
mother took him home against medical advice. Virginia
testified that Creech had experienced escalating problems
beginning in early childhood, and that he struggled to discern
the difference between right and wrong. She testified that, in
recent years, Creech had calmed down and had become more
loving and kind. She testified that Creech’s wife, whom he
had married after his conviction in this case, had been a
positive influence on him.
Dr. Steven Brown, a clinical psychologist, also testified
for Creech. Dr. Brown had interviewed Creech twice and had
reviewed the updated presentence reports, psychiatric records,
and hospital records. He testified that Creech scored in the
ninety-sixth percentile for psychopathic traits when compared
to the general prison population. He testified that Creech was
a “prototypical or classic psychopath, and that if any
psychopaths have a biological predisposition,” then
“somebody who has such an extreme form as Mr. Creech
probably does.” Dr. Brown noted the significance of the fact
that two of Creech’s brothers were also murderers: “The fact
that two of his brothers are murderers is strong anecdotal
evidence that there’s a genetic contribution in his family. It’s
fairly outstanding that there are three murderers in one
family.” Though Creech’s electromyography test results
were within normal limits and there was no direct evidence of
a biological basis for Creech’s condition, Dr. Brown testified
that “there’s probably a biological contribution.”
The State called six witnesses whose testimony focused
on Creech’s conduct in prison and whether he posed a
security concern.

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CREECH V. RICHARDSON 14
On April 17, 1995, Judge Newhouse again sentenced
Creech to death. He found the following facts in mitigation:
(1) Creech was forty-four years old, and most violent acts are
committed by males younger than thirty; (2) Creech
completed high school through eleventh grade and had
acquired his GED; (3) Creech took pride in cooperating with
law enforcement; (4) Creech was creative, writing songs,
poetry, and prose and playing the guitar; (5) Creech’s current
wife had been a positive influence on him; and (6) Creech
may be biologically predisposed to violence.
Judge Newhouse found the same five statutory
aggravating factors he had found in 1982. However, this
time, in discussing aggravating factors under Idaho Code
§ 18-4003(c) and (e), he found that Creech had attacked
Jensen with specific intent to kill. Judge Newhouse noted
that “[Creech] indicates an intention to commit further
murders if he is ever released” and that “[a]nything less than
total isolation would give rise to a substantial chance of the
defendant killing again.” He concluded, “The protection of
society demands that Thomas Eugene Creech receive the
death penalty.”
F. Second State Post-Conviction Review Proceedings
During Creech’s second state court PCR proceedings
before Judge Newhouse, Creech was represented by Idaho
Public Defender August Cahill. Creech claimed that Kehne
and Adams had been ineffective at his resentencing hearing
in 1995. After several continuances, a four-day evidentiary
hearing was held in October 1996. Creech presented
testimony from his ex-wife Emma Jean Asbrock and their
daughter Shelley Renae Creech. Asbrock and Shelley
testified that Creech may have suffered sexual abuse at the

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CREECH V. RICHARDSON 15
hands of his aunt and uncle when he was a child. Shelley also
discussed her own and her mother’s mental health difficulties.
Kehne and Adams took the stand, testifying that they had
been ineffective at Creech’s 1995 resentencing hearing.
Judge Newhouse denied relief, finding that “Mr. Kehne ha[d]
performed with outstanding competence in a case where the
chance for success was extremely remote.” After
consolidating Creech’s appeal from the trial court’s judgment
with his appeal from the denial of PCR relief, the Idaho
Supreme Court affirmed. State v. Creech (“Creech V”),
966 P.2d 1, 23 (Idaho 1998).
G. Second Federal Habeas Proceedings
Creech timely filed a second § 2254 habeas petition on
January 20, 2000. Proceedings were stayed until January
2005 while Creech unsuccessfully pursued other state post-
conviction relief. On March 24, 2005, Creech filed a second
amended petition, the operative pleading in this appeal.
In March 2006, the district court found that certain
claims, including some IAC claims, had been procedurally
defaulted. It permitted discovery with respect to these claims
but warned that the claims “will be dismissed unless, after a
period of limited discovery, Petitioner can show cause and
prejudice to excuse any default.” Procedural default in PCR
proceedings was then governed by the cause and prejudice
standard of Coleman v. Thompson, 501 U.S. 722 (1991). The
court allowed mental health experts and a mitigation
specialist to meet with Creech.
Creech filed a motion for an evidentiary hearing in
August 2007. Creech proffered additional mitigation
evidence in support of his motion. That evidence provided

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CREECH V. RICHARDSON 16
substantial additional support for the conclusion that Creech
suffered from an organic brain disorder. In March 2008, the
district court denied Creech’s motion for an evidentiary
hearing.
The district court held that 28 U.S.C. § 2254(e)(2)
foreclosed an evidentiary hearing on the additional mitigating
evidence Creech submitted in support of his motion. The
court nonetheless considered the additional evidence on the
merits, concluding that “[m]uch of this information was
already before the state courts, albeit in a less specific way.”
The court wrote that the “state courts already assumed the
truth of Dr. Brown’s testimony in 1995 that there could be a
biological aspect to Creech’s violent behavior, and that fact
was not significant to the outcome.” In the court’s view, “[a]
neurologist’s opinion that Creech has brain damage may be
more specific than Dr. Brown’s testimony, but it would have
provided only a modest counterweight to the heavy
aggravating factors.”
The district court dismissed Creech’s second amended
habeas petition with prejudice on March 31, 2010. The court
granted COAs on five claims. One of the COAs authorized
an appeal from the denial of the part of Claim 4 that alleged
IAC at Creech’s resentencing in 1995. Creech timely
appealed four of the five claims as to which COAs had been
granted, including the district court’s denial of the part of
Claim 4 addressed to IAC at the 1995 resentencing.
After oral argument on appeal, the Supreme Court
decided Martinez v. Ryan, 566 U.S. 1, 17 (2012), holding that
IAC by PCR counsel in an initial-review PCR proceeding can
excuse a procedural default of a claim of IAC of trial counsel.
We remanded to the district court to consider, in light of

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CREECH V. RICHARDSON 17
Martinez, whether counsel had been ineffective during
Creech’s second PCR proceeding in failing to present certain
sub-claims under Claim 4. All of the sub-claims at issue
alleged IAC at the 1995 resentencing.
Seventeen possibly defaulted sub-claims under Claim 4
were before the district court on remand. The district court
held that Creech waived all but six of the sub-claims by
failing to argue them. Of the remaining six, the district court
found that only one, contained in ¶ 100(a), had been
procedurally defaulted. That sub-claim was that trial counsel
had failed to “prepare, develop, and present a coherent
sentencing strategy” at the 1995 resentencing. The district
court held that PCR counsel had not performed deficiently in
failing to present that sub-claim, and, in the alternative, that
there was no prejudice resulting from the failure to present it.
The district court held that the other five sub-claims,
contained in ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv), had not
been procedurally defaulted by PCR counsel. Rather, it held,
they had been presented by Creech’s counsel to the PCR
court, had been decided adversely by that court, and had been
decided adversely by the federal district court.
Creech presented additional evidence on remand.
Creech’s counsel submitted various medical records, as well
as a declaration that she had consulted with a
neuropsychologist who had concluded, based on those
medical records, that Creech may have suffered from an
organic brain disorder. Properly considering this new
evidence under the law in effect at the time, the district court
concluded that it was comparable to the evidence submitted
to the district court in support of Creech’s pre-remand motion
for an evidentiary hearing, and that it added little to the
information that had been before the state PCR court. The

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CREECH V. RICHARDSON 18
court wrote, “Over the course of the two sentencing hearings
and the state postconviction proceedings, it had been well-
established that Creech might, indeed, have some . . .
biological or genetic component that contributed to his
antisocial and violent behavior . . . .”
The district court on remand held that the entirety of the
additional evidence of IAC that Creech sought to present in
district court, both before and after our Martinez remand, was
insufficient under Dickens v. Ryan, 740 F.3d 1302, 1318–19
(9th Cir. 2014) (en banc), to “fundamentally alter[]” these
five sub-claims and thereby to transform them into
unexhausted and procedurally defaulted new claims. The
court wrote, “The evidence that Petitioner brings forward in
this Court, although more specific, adds little substance to the
evidence that the state courts considered when adjudicating
Petitioner’s mitigation-based IATC claims. The evidence
submitted for the first time in this Court simply does not
substantially improve the evidentiary posture of those
claims.” Because the sub-claims had not been transformed
into procedurally defaulted new claims, Martinez did not
apply.
The district court reaffirmed its previous grant of a COA
as to the part of Claim 4 alleging IAC at the 1995
resentencing. It granted a new COA as to its denial of
Creech’s request for relief under Martinez as to the five sub-
claims contained in ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv). It
denied a COA as to any other issue.
Creech filed a motion for reconsideration. He proffered
additional new evidence that he argued fundamentally altered
the five sub-claims and transformed them into new claims.
The district court denied the motion for reconsideration,

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CREECH V. RICHARDSON 19
refusing to consider the additional new evidence on the
ground that it could, and should, have been presented as part
of the initial proceeding on remand. The district court denied
a COA as to this issue.
Rather than appeal on all of the grounds on which he
previously appealed to this court, Creech now appeals only
the two certified issues and four uncertified issues described
at the beginning of our opinion.
II. Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s dismissal of a habeas
petition. Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir.
2016) (citing Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir.
2012)). We review for clear error the district court’s findings
of fact. Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir.
2006) (en banc) (citing Riley v. Payne, 352 F.3d 1313, 1317
(9th Cir. 2003)). We review for abuse of discretion the denial
of a request for an evidentiary hearing. Stanley v. Schriro,
598 F.3d 612, 617 (9th Cir. 2010) (citing Schriro v.
Landrigan, 550 U.S. 465, 468 (2007)).
We may grant habeas relief under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) only if the state
court’s decision “(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). The phrase “clearly established Federal
law” “refers to the holdings, as opposed to the dicta, of the

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CREECH V. RICHARDSON 20
Supreme Court’s decisions as of the time of the relevant
state-court decision.” Carey v. Musladin, 549 U.S. 70, 74
(2006) (quoting Williams v. Taylor, 529 U.S. 362, 412
(2000)).
State-court findings of fact are presumed to be correct.
This presumption can be rebutted only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
III. Discussion
As a preliminary matter, relying on Browning v. Baker,
875 F.3d 444 (9th Cir. 2017), Creech argues that we should
broaden the COA on the first issue—IAC at the 1995
resentencing under Claim 4—to include every claim and sub-
claim addressed to that issue. We wrote in Browning:
While an individual claiming IAC “must
identify the acts or omissions of counsel that
are alleged not to have been the result of
reasonable professional judgment,” the court
considers counsel’s conduct as a whole to
determine whether it was constitutionally
adequate[.] The district court distorted this
inquiry by separating Browning’s IAC
argument into individual “claims” of IAC
corresponding to particular instances of
[defense attorney] Pike’s conduct. This
approach was misguided. Rather, the IAC
portion of the COA should have been crafted
at a higher level of generality.
Id. at 471 (citations omitted).

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CREECH V. RICHARDSON 21
In the case before us, the question at issue was whether
Creech received IAC during his 1995 resentencing.
Browning was decided after the district court’s decisions,
while the case was on appeal to us. If Browning had been
available to the district court, it might have used slightly
different language in order to make clear that it was analyzing
Creech’s “counsel’s conduct as a whole to determine whether
it was constitutionally adequate.” Id. But it is clear that this
is what the district court did.
In its initial decision denying habeas relief, the district
court headed its analysis of Creech’s IAC claim under Claim
4 as “Ineffective Assistance of Counsel at the Resentencing
(Claim 4, ¶¶ 100(b)(d)(j)(o)(q))”. Each of the specified
subparagraphs of ¶ 100 alleged instances of IAC during
Creech’s 1995 resentencing. The court then spent thirteen
pages analyzing the IAC resentencing claim as a whole,
considering the entirety of the attorney conduct of which
Creech complained. The initial COA granted by the district
court was similarly encompassing. Claim 4 had alleged IAC
of trial counsel in many respects, including but not limited to
IAC at the 1995 resentencing. The court granted a narrowed
COA for Claim 4, but included in the COA all of the attorney
conduct relevant to the 1995 resentencing. The court wrote:
“[T]he Court will certify an appeal over the Court’s
resolution of Claim[] . . . 4 (but only to the extent that Creech
alleges that he was deprived of his right to effective
assistance of counsel at the 1995 resentencing proceeding)
. . . .”
In its decision denying habeas after our remand under
Martinez, reaffirming its previous grant of a COA for the part
of Claim 4 that alleged IAC at the 1995 resentencing, the
court used much of the same wording as it had used

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CREECH V. RICHARDSON 22
previously in granting the COA for this part of Claim 4. The
court wrote, “The Court reaffirms its previous grant of a
certificate of appealability with respect to its resolution of the
merits of the non-defaulted aspects of Claim[] . . . 4 (to the
extent Creech alleges that he was deprived of his right to the
effective assistance of counsel at the 1995 resentencing
proceeding) . . . .”
In our Martinez remand order, we instructed the district
court to consider “whether any of Creech’s ineffective
assistance of counsel claims previously found procedurally
defaulted” may be heard under Martinez. Faithful to our
remand order, the district court discussed each of Creech’s
remanded IAC contentions, calling them “sub-claims.” In
holding that sub-claims ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv)
were not procedurally defaulted within the meaning of
Martinez, the district court did not consider these sub-claims
independently. Rather, it considered them together, in the
context of the entirety of Creech’s claim of IAC at
resentencing.
A. Certified Claims
1. Claim 4: Ineffective Assistance of Counsel at the 1995
Resentencing
Creech argues under Claim 4 that his trial counsel was
ineffective during his 1995 sentencing proceeding for failing
to investigate and present mitigation evidence in a timely and
adequate fashion, failing to hire a mitigation specialist, and
relying on an unqualified mental health expert. The Idaho
Supreme Court rejected Creech’s IAC claims at the 1995
resentencing, holding that Creech failed to prove either
deficient performance or prejudice under Strickland v.

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CREECH V. RICHARDSON 23
Washington, 466 U.S. 668 (1984). Creech V, 966 P.2d at
17–21. In denying habeas relief to Creech prior to our
remand under Martinez, the district court held that the Idaho
Supreme Court had reasonably concluded that Creech failed
to demonstrate prejudice under Strickland. On remand from
our court under Martinez, the district court reaffirmed that
holding. We agree with the district court.
The two-part standard for evaluating IAC claims is set
forth in Strickland. First, “the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” 466 U.S. at 688. In order to minimize “the
distorting effects of hindsight,” courts evaluating IAC claims
“must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689. Counsel’s performance must be
judged “on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Id. at 690. “The question is
whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common
custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
(quoting Strickland, 466 U.S. at 690).
Second, the defendant must “affirmatively prove
prejudice” by showing that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 693–94. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
at 694. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just

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CREECH V. RICHARDSON 24
result.” Id. at 686. We “need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies” if “it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice.” Id.
at 697.
“Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). States
must be given wide latitude in applying rules of general
applicability such as the Strickland standard. Cf. Yarborough
v. Alvarado, 541 U.S. 652, 663–64 (2004). “The standards
created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Richter, 562 U.S. at 105 (internal quotation
marks and citations omitted). Our review “is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011).
We agree with the district court that the Idaho Supreme
Court reasonably found a lack of prejudice under the second
prong of Strickland. The district court noted that Creech’s
case was “far from a blank slate” when it remanded for the
1995 resentencing. At the 1995 resentencing hearing, Judge
Newhouse took judicial notice of the entire record. That
record included the testimony of Dr. Stoner at the first
sentencing hearing and the testimony of Dr. Brown at the
1995 resentencing hearing. It also included a voluminous
presentence report, updated at Kehne’s request, that contained
substantial mental health evidence. Creech’s counsel at the
1995 hearing supplemented the record with character
reference letters and testimony regarding Creech’s family
background and mental health history; evidence of the

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CREECH V. RICHARDSON 25
physical and verbal abuse Creech suffered as a child;
evidence of a serious childhood head injury; evidence of the
positive influence of Creech’s wife; expert testimony that
there was likely a biological basis for Creech’s violent
tendencies; and evidence of Creech’s progress in becoming
a calmer, less angry person.
The only new mitigation evidence that was presented in
the state PCR proceeding in 1996 was the testimony of
Asbrock, Creech’s ex-wife, and Shelley, his daughter.
Asbrock testified that Creech had been the victim of
childhood sexual abuse, but her testimony was vague as to the
details. When asked about abuse that occurred in Creech’s
childhood home, Asbrock responded, “Yes. I think a lot of
this is a big part, what happened somewhat in abuse and
incest. You keep—. . . You keep getting abused and abused,
and I don’t—I think someone should have put a stop to it.”
As her testimony continued, Asbrock indicated Creech had
been sexually abused by his aunt and uncle. When asked the
name of the uncle, she said, “Aunt Thelma, in the bathtub—I
can’t remember the man’s name. But I know what he did. It
wasn’t right to continue that over and over.” She indicated
that she knew about the abuse because Creech and others told
her twenty-five or thirty years earlier.
Shelley’s testimony was less specific than her mother’s.
She stated in her direct examination:
Q. Have you heard the same sorts of things
about Tom’s family that we heard today from
your mom?
A. I’ve heard a lot of stories.

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CREECH V. RICHARDSON 26
Q. Okay.
A. And on that issue, I had letters. But I don’t
know. I lost everything. I don’t know. You
know, I know it was in Mount Orab. I don’t
know.
Q. And these were letters that your dad wrote
telling you about things that had happened to
him as a child?
A. Yeah.
Q. And that he had been abused as a child?
A. Yeah.
Q. And that there had been problems in
his—in his home when he was growing up?
A. And that’s why I could write my dad and
let him know things that had happened. And
I couldn’t even go to nobody else.
Asbrock’s and Shelley’s testimony was undermined by
their own mental health problems. Asbrock had suffered
some kind of breakdown at the airport immediately prior to
coming to court to give her testimony, and she was frequently
incoherent while on the stand. Shelley testified that she had
been diagnosed with schizophrenia, depression, and
borderline personality disorder. She became agitated and
confused on cross-examination.

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CREECH V. RICHARDSON 27
To establish prejudice under Strickland, any additional
mitigation evidence presented at the PCR IAC hearing,
together with the mitigation evidence already in the record,
must outweigh the aggravating evidence in the record. That
aggravating evidence included Jensen’s brutal murder in the
prison, Creech’s four prior murder convictions, and Creech’s
testimony that he had committed many other murders and
intended to kill more people if given the opportunity. We
agree with the district court that the state court reasonably
concluded that there was no reasonable probability that
calling Asbrock and Shelley as witnesses at the 1995
resentencing hearing would have changed the outcome of that
proceeding. See, e.g., Pinholster, 563 U.S. at 202 (“Given
what little additional mitigating evidence Pinholster presented
in state habeas, we cannot say that the California Supreme
Court’s [denial of his IAC claim] was unreasonable.”); Bobby
v. Van Hook, 558 U.S. 4, 12 (2009) (per curiam) (holding no
prejudice where only two potential witnesses not interviewed
by defense counsel would have added any new information of
value and the information provided only “minor additional
details” about defendant’s background); King v. Schriro,
537 F.3d 1062, 1074 (9th Cir. 2008) (holding no prejudice
where defendant did not present evidence of what a more
complete social and medical history investigation would have
revealed).
As noted above, Creech had sought to “bolster” his IAC
resentencing claim by introducing in the district court
evidence that had never been presented to the state court. The
district court held that an evidentiary hearing on this
proffered new evidence was precluded by 28 U.S.C.
§ 2254(e)(2). In the alternative, the court held, further, that
if it were to ignore the limitation of evidentiary hearings
contained in § 2254(e)(2) and were to consider on the merits

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CREECH V. RICHARDSON 28
the evidence not presented to the state PCR court, it would
nonetheless deny relief. Inter alia, the court wrote, “A
neurologist’s opinion that Creech has brain damage may be
more specific than Dr. Brown’s testimony, but it would have
provided only a modest counterweight to the heavy
aggravating factors . . . .”
We hold that the district court was correct in denying
relief on Creech’s IAC resentencing claim under Claim 4.
We hold, further, under § 2254(e)(2) that the district court
was correct in declining to hold an evidentiary hearing on the
new evidence that Creech sought to introduce to bolster his
IAC resentencing claim.
2. Martinez Remand: Five Allegedly Procedurally
Defaulted Sub-claims
a. Martinez
In Martinez, the Supreme Court announced an equitable
exception to the longstanding rule of Coleman v. Thompson
that ineffective assistance of PCR counsel cannot establish
cause to overcome a procedural default. The Court held:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a
procedural default will not bar a federal
habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was
ineffective.

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CREECH V. RICHARDSON 29
Martinez, 566 U.S. at 17. The Court refined the Martinez
inquiry in Trevino v. Thaler, 569 U.S. 413 (2013). Under
Martinez, a federal habeas court may find cause to excuse a
procedural default where:
(1) the underlying ineffective assistance of
trial counsel claim is “substantial”; (2) the
petitioner was not represented or had
ineffective counsel during the PCR
proceeding; (3) the state PCR proceeding was
the initial review proceeding; and (4) state law
required (or forced as a practical matter) the
petitioner to bring the claim in the initial
review collateral proceeding.
Dickens, 740 F.3d at 1319 (citing Trevino, 569 U.S. at 423).
A petitioner must satisfy all four requirements, id., but
only the first and second requirements are at issue here. With
respect to the first requirement, a petitioner must
“demonstrate that the underlying [IAC] claim is a substantial
one, which is to say that the prisoner must demonstrate that
the claim has some merit.” Martinez, 566 U.S. at 14 (citing
Miller-El v. Cockrell, 537 U.S. 322 (2003)). “Thus, there
must be a substantial showing of a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Runningeagle,
825 F.3d at 982 (quoting Strickland, 466 U.S. at 694). To
satisfy the second requirement, the petitioner must
demonstrate that PCR counsel “was ineffective under the
standards of Strickland,” which requires a petitioner to “show
not only that PCR counsel performed deficiently, but also that
. . . ‘there was a reasonable probability that, absent the
deficient performance, the result of the post-conviction

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CREECH V. RICHARDSON 30
proceedings would have been different.’” Martinez, 566 U.S.
at 14; Runningeagle, 825 F.3d at 982 (quoting Pizzuto v.
Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015)).
In practical effect, the prejudice analysis under both the
first and second Martinez requirements is the same. Under
both requirements, the required analysis is the prejudice
prong of Strickland: There must be a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694; see Runningeagle, 825 F.3d at 982 (reciting the
Strickland prejudice standard under both the first and second
Martinez requirements); cf. Detrich v. Ryan, 740 F.3d 1237,
1245–46 (9th Cir. 2013) (en banc) (plurality opinion)
(interpreting the first and second Martinez requirements
differently).
Pursuant to our remand under Martinez, the district court
considered six sub-claims of Claim 4, all of which alleged
IAC at the 1995 resentencing proceeding. Creech appeals its
decision as to five of those sub-claims. At the time of the
district court’s decision after our Martinez remand, the court
could consider new evidence supporting a claim of IAC by
PCR counsel in determining whether a petitioner satisfies the
requirements of Martinez without running afoul of
§ 2254(e)(2) and Pinholster. See Dickens, 740 F.3d at 1320.
After we heard oral argument, however, the Supreme Court
decided Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022),
greatly restricting the circumstances in which a federal
habeas court deciding Martinez claims may consider evidence
beyond that already contained in the state court record.

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CREECH V. RICHARDSON 31
b. Sub-claims ¶¶ 100(b), (d), (j), (o)(iii) and (o)(iv)
All of the sub-claims included in the district court’s COA
are addressed to IAC at Creech’s 1995 resentencing. Sub-
claim ¶ 100(b) alleges that post-conviction counsel failed to
conduct an adequate investigation of matters in mitigation,
including Creech’s mental health and that of his family. Sub-
claim ¶ 100(d) alleges failure to retain qualified mental health
experts to address issues of Creech’s mental health. Sub-
claim ¶ 100(j) alleges failure to investigate Creech’s mental
health issues including the effect of head injuries. Sub-claim
¶ 100(o)(iii) alleges failure to present mitigating evidence of
the mental condition of Creech’s daughter, which could
support claims of organic causes for Creech’s aggressive
behavior. Finally, sub-claim ¶ 100(o)(iv) alleges failure to
present evidence of severe mental illness of Creech’s mother.
The district court concluded that each of these sub-claims
had been presented to, and exhausted in, the state court as
part of Creech’s IAC claim under Claim 4 that his counsel
had been ineffective at his 1995 resentencing. Prior to the
Supreme Court’s decision in Ramirez, a claim previously
presented to a state court could become a new unexhausted
(and procedurally defaulted) claim if new evidence presented
to the district court under Martinez either “fundamentally
alter[ed] the legal claim already considered by the state
courts” or “place[d] the case in a significantly different and
stronger evidentiary posture than it was when the state courts
considered it.” Dickens, 740 F.3d at 1318 (citations omitted)
(first quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986);
and then quoting Aiken v. Spalding, 841 F.2d 881, 883 (9th
Cir. 1988)). The district court recognized that, if a previously
exhausted claim was supplemented on federal habeas with
sufficient new supporting evidence, the claim could be

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CREECH V. RICHARDSON 32
transformed into a new, unexhausted, and procedurally
defaulted claim.
As recounted above, the district court considered all of the
proffered new evidence and held that it was insufficient to
transform into a new IAC claim the part of Claim 4 that
alleged IAC during Creech’s 1995 resentencing. The court
held that sub-claims ¶¶ 100(b), (d), (j), (o)(iii), and (o)(iv)
were therefore not procedurally defaulted new claims and that
Martinez did not apply.
Even in the absence of Ramirez, we would have agreed
with the district court. Most of the new evidence introduced
on federal habeas review in support of Creech’s argument
that he suffers from an organic disorder was duplicative of
evidence introduced during the 1995 resentencing.
Dr. Brown had testified at Creech’s 1995 resentencing
hearing that it was highly unusual that Creech and his two
brothers were all murderers, and that there was “probably a
biological contribution” to Creech’s behavior. Dr. Stoner had
testified at Creech’s original sentencing hearing that Creech’s
performance on tests “strongly suggest[ed] . . . an organic
brain disorder.” Considering the mitigation evidence as a
whole, see Browning, 875 F.3d at 471, the district court
correctly concluded,
The evidence that Petitioner brings forward in
this Court, although more specific, adds little
substance to the evidence that the state courts
considered when adjudicating Petitioner’s
mitigation-based IATC claims. The evidence
submitted for the first time in this Court
simply does not substantially improve the
evidentiary posture of those claims.

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CREECH V. RICHARDSON 33
Under Ramirez, we reach the same result. Because we
cannot consider the evidence presented for the first time to
the district court, Creech’s Martinez claim necessarily fails.
B. Uncertified Claims
Creech seeks a COA for four uncertified claims. For a
COA to issue, Creech must “sho[w] that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El, 537 U.S.
at 336 (alteration in original) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
1. Summary Denial of Reconsideration
Creech seeks a COA on his claim that the district court
erred in summarily denying his motion for reconsideration of
its denial of his second habeas petition. In his motion for
reconsideration, Creech sought to present additional
mitigating evidence beyond the new evidence he had already
presented to the district court in connection with his second
petition. In denying his motion for reconsideration, the
district court held, inter alia, that even if the court were to
consider the new evidence presented in connection with the
motion for reconsideration as if it were part of Creech’s
initial Martinez proceeding, there was no prejudice. We deny
a COA. Under Ramirez, we may not consider the evidence
Creech submitted in support of his motion for
reconsideration. He therefore cannot demonstrate prejudice
as a result of PCR counsel’s performance as required by
Martinez.

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CREECH V. RICHARDSON 34
2. Withdrawal of Guilty Plea
Creech seeks a COA for his claim that the Idaho Supreme
Court violated the Due Process Clause by refusing to allow
him to withdraw his guilty plea prior to his first resentencing.
The district court denied relief on this claim, correctly
concluding that Creech’s argument was, in effect, that the
Idaho Supreme Court had incorrectly decided a question of
state law. See Creech V, 966 P.2d at 21–22. The Idaho
Court’s construction of its own law was not “an obvious
subterfuge to evade the consideration of a federal issue,” and
we are bound by its holding that Creech’s withdrawal claim
is barred by state preclusion law. See Peltier v. Wright,
15 F.3d 860, 862 (9th Cir. 1994). We therefore decline to
grant a COA for this claim.
3. Magwood Claims
Creech seeks a COA for multiple claims attacking his
guilty plea. He refers to these claims as “Magwood claims,”
invoking the Supreme Court’s decision in Magwood v.
Patterson, 561 U.S. 320 (2010). These claims were
exhausted during his second PCR proceeding in state court
and were presented to the district court in both his first and
second habeas petitions. When Creech raised them in his
second habeas petition, the district court rejected these claims
as second or successive under 28 U.S.C. § 2244(b). After the
district court’s decision, the Court decided Magwood, holding
that claims in a second federal habeas petition challenging the
sentence imposed in a new state court judgment are not
second or successive, even if addressed to issues other than
sentencing. Id. at 342.

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CREECH V. RICHARDSON 35
Creech asks that we grant a COA as to his guilty plea
claims and remand to the district court to allow that court to
address them on the merits in the first instance. We grant the
COA. We conclude, based on Magwood and later cases
decided by our circuit, that the claims are not barred as
second or successive. However, rather than remand them to
the district court, we deny them ourselves.
a. Applicability of Magwood
“We review de novo the district court’s determination that
a petition is ‘second or successive’ under AEDPA.”
Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017). In
Magwood, the Supreme Court held that a second federal
habeas petition challenging a sentence imposed in an
intervening state court judgment was not a second or
successive petition. Magwood left open the question whether
§ 2244(b) would allow a petitioner who obtains a new
sentence to challenge “not only his resulting, new sentence,
but also his original, undisturbed conviction.” 561 U.S.
at 342 (emphases in original). We answered that question in
Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012). We held
that “the basic holding of Magwood” must extend to cases
where a new petition challenges undisturbed parts of the
judgment, including a petitioner’s original conviction,
because Magwood requires us to “interpret successive
applications with respect to the judgment challenged and not
with respect to the particular components of that judgment.”
Id. at 1127 (quoting Johnson v. United States, 623 F.3d 41, 46
(2d Cir. 2010)). “‘[W]here a first habeas petition results in an
amended judgment, a subsequent petition is not successive,’
even if its claims could have been raised in a prior petition or
the petitioner ‘effectively challenges an unamended
component of the judgment.’” Id. (quoting Johnson,

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CREECH V. RICHARDSON 36
623 F.3d at 46); see also Gonzalez, 873 F.3d at 768–69 (“In
short, under the law of this circuit and the Supreme Court, a
petition is not second or successive when there is an amended
judgment and the petition is the first one following that
amended judgment.”).
Although Creech III and Creech IV left Creech’s
conviction for Jensen’s murder undisturbed, Creech may
nonetheless challenge that conviction in his second federal
habeas petition because his original sentence was vacated and
a new sentence was imposed. Creech’s second habeas
petition is thus not second or successive as to his guilt-phase
claims.
b. Discussion of Magwood Claims
As noted above, public defender Rolf Kehne represented
Creech at trial. Creech claims that, were it not for a conflict
of interest in the public defender’s office and were it not for
Kehne’s deficient performance, he would not have pleaded
guilty and would instead have gone to trial on the question of
guilt. Specifically, Creech argues that his trial counsel were
ineffective because (1) the Ada County Public Defender’s
Office (“ACPDO”) labored under a conflict of interest while
representing him; (2) Kehne failed to move to withdraw the
guilty plea based on Creech’s incompetence and failed to
seek additional testing for brain damage; (3) Kehne failed to
investigate the purported influence of Sheriff Chuck Palmer
in Creech’s decision to plead guilty; and (4) Kehne failed to
investigate Jensen’s allegedly violent history. We take the
arguments in turn.

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CREECH V. RICHARDSON 37
i. Conflict of Interest
Creech argues that the ACPDO labored under a conflict
of interest in the pre-plea stage. Creech argues that, before he
was represented by Kehne, he was briefly represented in
different hearings by four other public defenders in the
ACPDO. One of these attorneys, Laird Stone, also
represented inmate Keith George, who had witnessed
Jensen’s death. George provided deposition testimony
describing Creech’s actions in continuing the attack on Jensen
after Jensen had stopped fighting. Creech argues that
George’s testimony contributed to Creech’s perception that
the case was hopeless and that the court would automatically
impose the death penalty, which induced him to plead guilty.
The record belies Creech’s argument. Kehne
affirmatively sought a continuance to investigate whether the
public defender’s office had a conflict arising from potential
witnesses against Creech who had been represented by the
public defender. During argument in the trial court, Kehne
clarified that the office was representing another inmate,
presumably George, who was trying to reach a deal and was
represented by Stone. The prosecution represented to the
court that no offers of a deal had been extended to that other
inmate, that there was nothing more than a potential conflict
of interest, and that the prosecution would inform the public
defender’s office if an offer of a deal was extended. The trial
court determined that there was a potential but not an actual
conflict. When George testified in his deposition in August
1981, he was no longer represented by the public defender’s
office. Creech concedes that the prosecution did not cut
George a deal for testimony until his deposition, when it is
undisputed he was represented by a private attorney.

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CREECH V. RICHARDSON 38
Therefore, no actual conflict existed at the time of
George’s deposition. See Noguera v. Davis, 5 F.4th 1020,
1035 (9th Cir. 2021) (“An ‘actual conflict’ means a ‘conflict
of interest that adversely affects counsel’s performance,’ not
simply ‘a theoretical division of loyalties.’” (quoting Mickens
v. Taylor, 535 U.S. 162, 171, 172 n.5 (2002))). The state trial
court investigated the potential conflict and found that none
existed. See Alberni v. McDaniel, 458 F.3d 860, 870–71 (9th
Cir. 2006). Moreover, the details in George’s deposition
testimony were not more damaging than the admissions
Creech had made to police against the advice of counsel prior
to his change of plea hearing. Contrary to Creech’s assertion,
it is apparent that his decision to plead guilty against Kehne’s
advice was wholly unrelated to ACPDO’s representation of
George. The Idaho courts did not unreasonably find Creech’s
arguments as to Kehne’s purported conflict of interest to be
without merit. See Creech V, 966 P.2d at 21.
ii. Failure to Argue Creech’s Incompetence or to Obtain
Further Mental Testing
Creech argues that Kehne should have moved to withdraw
his guilty plea on the ground that Creech was incompetent to
plead guilty and that Kehne should have tested Creech for
brain damage, which would have raised issues about his
competence to plead guilty. Creech asserts that the
assessments of Drs. Stoner and Heyrend, along with a suicide
attempt the day before he appeared in court to change his
guilty plea, should have indicated to Kehne that Creech was
incompetent to plead guilty and that further testing was
necessary.
We addressed Creech’s competence to plead guilty in our
decision in 1991. There is nothing in the current record that

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CREECH V. RICHARDSON 39
leads us to change our earlier conclusion that the record
discloses “no evidence that Creech was incompetent to plead
guilty.” Creech III, 947 F.2d at 879–80. When Dr. Heyrend
was asked whether Creech “did not intend to plead guilty or
did not recognize the consequences of that legal act,” he
replied “I really have no information in that area.” Dr. Stoner
testified that Creech, although impulsive and impaired in his
judgment, could understand the proceedings against him and
was capable of communicating adequately with counsel.
Although Creech, at Kehne’s insistence, reserved the right
to withdraw his guilty plea if psychological evaluations
showed Creech incompetent to plead guilty, those evaluations
did not suggest that Creech was incompetent to plead guilty
such that Kehne should have pursued further testing or moved
to withdraw the plea. Even assuming that Kehne should have
pursued further testing, his failure to do so was not
prejudicial, as nothing in Dr. Brown’s later testimony at the
1995 resentencing hearing suggests that Creech had been
incompetent to plead guilty. See United States v. Howard,
381 F.3d 873, 877–78 (9th Cir. 2004) (“To establish that his
counsel provided ineffective assistance in light of
[petitioner’s] alleged incompetency, [petitioner] must first
demonstrate that he was indeed incompetent to plead
guilty.”). The Idaho courts did not unreasonably conclude
that Creech failed to show that Kehne should have moved to
withdraw his guilty plea on the ground that Creech was
incompetent. See Creech V, 966 P.2d at 21.
iii. Failure to Communicate or Move to Withdraw the
Guilty Plea Based on Undue Influence
Creech argues that Kehne was ineffective for failing to
adequately communicate with him prior to his guilty plea,

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CREECH V. RICHARDSON 40
which resulted in Kehne’s failure to challenge and investigate
Sheriff Chuck Palmer’s alleged coercion of Creech into
pleading guilty, and for subsequently failing to move to
withdraw the guilty plea based on Sheriff Palmer’s influence
on Creech.
During Creech’s state PCR proceedings, Palmer testified
that he had an ongoing relationship with Creech dating back
to the early 1970s. Palmer described the relationship as one
of “mutual respect.” He recalled that Creech told him early
on that he wanted to plead guilty, and that he “encourage[d]
[Creech] to do that, if that was what he wanted to do.”
However, Palmer insisted that he told Creech not to discuss
matters pertaining to the murder with him outside the
presence of counsel.
The record shows that Creech was motivated to plead
guilty independent of any supposed influence by Palmer.
During the change-of-plea hearing, Kehne informed Judge
Newhouse that Creech was pleading guilty against his advice,
and Creech rejected Kehne’s advice that they seek a five-day
continuance before entering a guilty plea. During the plea
colloquy, Creech testified under oath that he had discussed
the plea with counsel, was not influenced by the conduct of
others, and believed that he had adequate time to discuss the
matter with counsel. Doe v. Woodford, 508 F.3d 563, 571
(9th Cir. 2007) (“Solemn declarations in open court carry a
strong presumption of verity.” (quoting Blackledge v. Allison,
431 U.S. 63, 74 (1977))); United States v. Kaczynski,
239 F.3d 1108, 1115 (9th Cir. 2001) (“We give ‘substantial
weight’ to [a petitioner’s] in-court statements.” (quoting
United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991))).

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CREECH V. RICHARDSON 41
Even assuming that Kehne rendered deficient
performance for failing to adequately communicate with
Creech prior to the change-of-plea hearing, Creech cannot
demonstrate prejudice. The record contains ample evidence
that Creech desired to plead guilty of his own accord, and he
has not shown that, even if Kehne had presented a motion to
withdraw his guilty plea based on Palmer’s alleged influence,
the motion would have had a reasonable chance of success.
See United States v. Yong, 926 F.3d 582, 590 (9th Cir. 2019)
(“A plea of guilty entered by an individual fully aware of the
plea’s direct consequences ‘must stand unless induced by
threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature
improper . . . .’” (quoting Kaczynski, 239 F.3d at 1114)). The
Idaho Supreme Court did not unreasonably conclude that
Creech failed to show IAC at the guilt phase on the basis of
Kehne’s purported failure to communicate with him. See
Creech V, 966 P.2d at 19–20.
iv. Failure to Investigate Jensen’s History
Finally, Creech argues that counsel’s failure to investigate
Jensen’s purported history of violence led Creech to plead
guilty rather than insist on going to trial on a theory of self-
defense. Even assuming that Kehne’s failure to investigate
Jensen’s history constituted deficient performance, Creech
cannot demonstrate prejudice. We agree with our
determination in 1991 that it is “inconceivable . . . , and not
merely improbable” that Creech “would have been acquitted
or, if convicted, would nevertheless have been given a shorter
sentence than he actually received” if he had gone to trial on
a theory of self-defense. Creech III, 947 F.2d at 879 (quoting
Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984)). Even

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CREECH V. RICHARDSON 42
accepting for the sake of argument that Jensen had a violent
predisposition, there is no reasonable probability that this
additional evidence would have outweighed the
countervailing and aggravating evidence. Allen v. Woodford,
395 F.3d 979, 1002 (9th Cir. 2005) (no prejudice where
additional mitigation evidence would have been “insufficient
to outweigh the overwhelming evidence in aggravation”).
The Idaho courts did not unreasonably so conclude. See
Creech V, 966 P.2d at 18–19.
4. Lackey Remand
Creech seeks a COA for a claim that the duration of
Creech’s confinement for this murder, now forty years,
constitutes cruel and unusual punishment in violation of the
Eighth Amendment. He relies on Justice Stevens’s
memorandum respecting the denial of certiorari in Lackey v.
Texas, 514 U.S. 1045 (1995) (mem.). The district court
found the claim procedurally defaulted and dismissed it with
prejudice. Even putting aside the procedural default, we note
that neither the Supreme Court nor the Ninth Circuit has ever
held that the duration of a death row inmate’s confinement
prior to execution amounts to cruel and unusual punishment.
Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir. 2010)
(collecting cases). We therefore decline to grant a COA for
this claim.
C. Post-Ramirez Motion
After the Supreme Court decided Ramirez, Creech moved
for leave to file replacement or supplemental briefs. Creech
contends that, had he known that he would not be able to
introduce new evidence on federal habeas review under
Martinez, he would have made different strategic choices as

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CREECH V. RICHARDSON 43
to which arguments to pursue in his appeal from the district
court’s decision after our post-Martinez remand. He seeks to
file replacement or supplemental briefs based on strategic
choices he says he would have made had he known that he
was unable to make any arguments under Martinez.
However, Creech filed such briefs when he appealed the
district court’s denial of his second amended habeas petition.
We heard oral argument based on those briefs in March 2012
shortly before Martinez was decided. In those briefs, Creech
made precisely the sort of strategic choices that he now says
he wants to make—choices as to what arguments to make on
appeal when he has no viable arguments under Martinez.
After we heard argument in the pre-Martinez appeal, we
voted unanimously to deny all claims adversely to Creech
except for those that became available post-argument under
Martinez. Replacement or supplemental briefs of the sort
Creech seeks to file would thus make no difference to the
outcome. We therefore deny Creech’s motion to file
replacement or supplemental briefs.
Conclusion
We affirm the district court’s denial of Creech’s second
amended habeas petition.
AFFIRMED.

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