Thomas Eugene Creech v. Idaho Commission of Pardons

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS EUGENE CREECH,
Plaintiff - Appellant,
v.
IDAHO COMMISSION OF
PARDONS AND PAROLE and JAN
M BENNETTS, Ada County
Prosecuting Attorney, in her official
capacity,
Defendants - Appellees.
No. 24-1000
D.C. No.
1:24-cv-00066-
AKB
OPINION
Appeal from the United States District Court
for the District of Idaho
Amanda K. Brailsford, District Judge, Presiding
Argued and Submitted February 24, 2024
San Francisco, California
Filed February 24, 2024
Before: William A. Fletcher, Jay S. Bybee, and Morgan
Christen, Circuit Judges.

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2 CREECH V. BENNETTS
SUMMARY*
Death Penalty/Commutation Proceedings
The panel affirmed the district court’s denial of Idaho
death row inmate Thomas Eugene Creech’s motion for a
preliminary injunction alleging due process violations
during his commutation proceedings.
In 1981, while serving two life sentences for murders
committed in Idaho and following convictions for additional
murders committed in California and Oregon, Creech killed
fellow inmate David Dale Jensen. On October 16, 2023, an
Idaho state court issued a death warrant for Creech’s
execution, but the warrant was stayed pending Creech’s
petition for commutation to life without parole.
The Commission of Pardons and Parole denied Creech’s
commutation petition in a 3-3 vote, with one commissioner
recused. Creech filed an action under 42 U.S.C. § 1983,
alleging various due process violations by the Commission
and the Ada County Prosecuting Attorney’s Office
(“ACPA”).
The panel rejected all of Creech’s due process
arguments. First, neither this Circuit nor the Supreme Court
has interpreted the Due Process Clause to require advance
notice of the evidence to be presented at a commutation
hearing, and Idaho law does not confer a right to receive such
notice. Creech received notice of the hearing itself and was
* 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. BENNETTS 3
not misled as to the issues that would be considered by the
Commission.
The panel rejected Creech’s contention that the Due
Process Clause entitled him to the appointment of a
replacement commissioner when one Commissioner recused
himself. Idaho law does not expressly authorize the
appointment of a replacement commissioner in the event of
a recusal.
The panel rejected Creech’s argument that ACPA
violated his due process rights by suggesting to the
Commission that Creech “committed the murder [of Daniel
Walker] and got away with it.” The panel held that the
prosecutor’s statements at the hearing did not mislead the
Commission into assuming that Creech had been found
responsible in a formal legal sense. Moreover, the panel was
persuaded that correcting any purported violation would not
change the Commission’s vote to deny Creech commutation.
Even if the Commission had not been presented with any
information regarding the status of the Walker investigation,
it would still have ample evidence that Creech had killed
many people, been implicated or suspected in other deaths,
and been dishonest about his involvement in the death of
Dwayne DiCicco.
The panel further rejected Creech’s argument that ACPA
violated his due process rights by introducing misleading or
fabricated evidence relating to the issue of whether Creech
killed Jensen in self-defense. The panel held that any alleged
due process violation was harmless beyond a reasonable
doubt. The Commissioners who voted to deny commutation
focused on the reprehensible nature of Jensen’s murder
without reference to whether Creech had provoked Jensen’s
initial attack. The Commissioners were also concerned with

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4 CREECH V. BENNETTS
both Creech’s lack of candor about the number of people he
had murdered and justice for Jensen’s family.
Overwhelming evidence supported those reasons.
Moreover, the Commissioners were unanimous that
Creech’s conduct—including any evidence of his post-
offense rehabilitation—would not entitle him to mercy.
The panel concluded that Creech has failed to establish a
likelihood of success on the merits, and found no legal or
clear factual error in the district court’s evaluation of the
remaining preliminary injunction factors.
COUNSEL
Jonah Horwitz (argued), Assistant Federal Public Defender,
Capital Habeas Unit; Mary E. Spears and Christopher M.
Sanchez, Assistant Federal Public Defenders; Deborah A.
Czuba, Federal Public Defender; Federal Defender Services
of Idaho, Boise, Idaho; for Plaintiff-Appellant.
Kristina M. Schindele (argued), Acting Assistant Attorney
General; Mary K. Magnelli, Lead Deputy Attorney General;
Idaho Attorney General’s Office, Boise, Idaho; for
Defendant-Appellee Idaho Commission of Pardons and
Parole.
Dayton P. Reed (argued), Assistant Attorney General;
Sherry A. Morgan, Senior Deputy Prosecuting Attorney;
Ada County Prosecutor’s Office, Boise, Idaho; for
Defendant-Appellee Jan M. Bennetts.

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CREECH V. BENNETTS 5
OPINION
PER CURIAM:
Plaintiff-Appellant Thomas Eugene Creech is on death
row for the 1981 murder of David Dale Jensen. In 2023, the
State of Idaho granted Creech a commutation hearing before
the Commission of Pardons and Parole (the “Commission”),
which was held in early 2024. The Commission ultimately
denied the petition for commutation, and Creech’s execution
is now scheduled for February 28, 2024. Creech filed a
§ 1983 action in federal court, alleging various due process
violations over the course of the commutation proceedings
and seeking a preliminary injunction. The district court
denied his motion, and we affirm.
I. BACKGROUND
Because we have described elsewhere the factual and
procedural history of this case, see Creech v. Richardson, 59
F.4th 372, 376–82 (9th Cir. 2023), we recite only those facts
most relevant to Creech’s commutation-related arguments
now before us. In 1981, while serving two life sentences for
murders committed in Idaho, and following convictions for
additional murders committed in California and Oregon,
Creech killed fellow inmate David Dale Jensen, who was
disabled. See id. at 376–77; Arave v. Creech (“Creech IV”),
507 U.S. 463, 466 (1993). In relevant part, Jensen attacked
Creech with a battery-filled sock. State v. Creech
(“Creech V”), 966 P.2d 1, 5 (Idaho 1998). Creech took the
weapon from Jensen. Jensen later returned, wielding a
toothbrush with a razor blade fastened to it. Creech beat
Jensen with the sock, ultimately killing him. Id. Creech
pleaded guilty. At his initial sentencing in 1982, Creech

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6 CREECH V. BENNETTS
testified that, “through an intermediary, [he] provided Jensen
with makeshift weapons and then arranged for Jensen to
attack him, in order to create an excuse for the killing.”
Creech IV, 507 U.S. at 466. Although the judge at Creech’s
original sentencing concluded that “Creech did not instigate
the fight with the victim,” id. at 467, the same judge later
determined at a resentencing in 1995 that the murder was
“planned and executed by Creech,” Creech V, 966 P.2d at 7.
On October 16, 2023, an Idaho state court issued a death
warrant for Creech’s execution, but the warrant was stayed
pending Creech’s petition for commutation to life without
parole.
The Idaho Commission of Pardons and Parole possesses
the exclusive power to grant commutations and pardons, but
“only as provided by statute . . . .” Idaho Const. art. IV, § 7.
The Commission is comprised of seven Commissioners. See
Idaho Code § 20-1002(1). Except in certain cases not
relevant here, “[a]ny decision of the full Commission
requires a majority vote of four (4) Commissioners.” IDAPA
§ 50.01.01.200.08.a. Idaho law further requires recusal in
certain cases, see id. § 50.01.01.200.07, but it does not
supply a tie-breaking method or mechanisms for the
appointment of an interim Commissioner in the event of a
recusal.
In the case of capital offenses, the Commission may
issue a pardon or commutation “only after first presenting a
recommendation to the governor.” Idaho Code § 20-
1016(2). If the Governor approves the recommendation
within thirty days, “the commission’s pardon or
commutation shall issue.” Id. If the Governor rejects the
recommendation or fails to act upon it within thirty days, “no
pardon or commutation shall issue from the commission, and

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CREECH V. BENNETTS 7
the commission’s recommendation shall be of no force or
effect.” Id.
The Commission ultimately denied Creech’s
commutation petition in a 3-3 vote, with one commissioner
recused. Creech filed an action under 42 U.S.C. § 1983,
alleging various violations of due process by the
Commission and the Ada County Prosecuting Attorney’s
Office (“ACPA”). The district court denied Creech’s motion
for a preliminary injunction. Creech timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have appellate jurisdiction to review the denial of a
preliminary injunction under 28 U.S.C. § 1292(a)(1). We
review the denial of a preliminary injunction for abuse of
discretion, but we review de novo the underlying issues of
law. Cal. Chamber of Com. v. Council for Educ. & Rsch. on
Toxics, 29 F.4th 468, 475 (9th Cir. 2022), cert. denied, 143
S. Ct. 1749 (2023).
“The appropriate legal standard to analyze a preliminary
injunction motion requires a district court to determine
whether a movant has established that (1) he is likely to
succeed on the merits of his claim, (2) he is likely to suffer
irreparable harm absent the preliminary injunction, (3) the
balance of equities tips in his favor, and (4) a preliminary
injunction is in the public interest.” Baird v. Bonta, 81 F.4th
1036, 1040 (9th Cir. 2023); see Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). We focus here on the
“likelihood of success” element, which is the most important
factor. See Edge v. City of Everett, 929 F.3d 657, 663 (9th
Cir. 2019).

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8 CREECH V. BENNETTS
III. ANALYSIS
Our review of state commutation proceedings is limited.
See Wilson v. U.S. Dist. Ct. for N. Dist. of Cal., 161 F.3d
1185, 1186 (9th Cir. 1998). “[P]risoners have no liberty
interest in clemency proceedings because the decision to
grant or deny clemency rests wholly in the discretion of the
executive.” Burnsworth v. Gunderson, 179 F.3d 771, 775
(9th Cir. 1999). If a state provides a commutation
proceeding, the Due Process Clause of the Fourteenth
Amendment requires only “minimal procedural
safeguards . . . .” Ohio Adult Parole Auth. v. Woodard, 523
U.S. 272, 289 (1998) (O’Connor, J., concurring in part and
concurring in the judgment);1 see also id. at 292 (Stevens, J.,
concurring in part and dissenting in part) (“There are valid
reasons for concluding that even if due process is required in
clemency proceedings, only the most basic elements of fair
procedure are required.”); Woratzeck v. Ariz. Bd. of Exec.
Clemency, 117 F.3d 400, 404 (9th Cir. 1997) (“[T]he due
process that the Constitution requires for a clemency hearing
is quite limited.”).
The precise contours of our review of a commutation
proceeding are unclear. At the least, a procedural due
process violation exists if “the clemency proceeding’s
outcome is wholly arbitrary . . . .” Schad v. Brewer, 732 F.3d
946, 947 (9th Cir. 2013) (per curiam). “Judicial intervention
might, for example, be warranted in the face of a scheme
1 Justice O’Connor’s concurring opinion, joined by a plurality of justices,
constitutes the Court’s holding in light of Justice Stevens’ partial
concurrence. See Marks v. United States, 430 U.S. 188, 193 (1977); see
also, e.g., Barwick v. Governor of Fla., 66 F.4th 896, 902 (11th Cir.) (per
curiam) (“Justice O’Connor’s concurring opinion provides the holding
in Woodard.”), cert. denied sub nom. Barwick v. Desantis, 143 S. Ct.
2452 (2023).

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CREECH V. BENNETTS 9
whereby a state official flipped a coin to determine whether
to grant clemency, or in a case where the State arbitrarily
denied a prisoner any access to its clemency process.”
Woodard, 523 U.S. at 289 (O’Connor, J., concurring in part
and concurring in the judgment). We have assumed without
deciding that “bribery, personal or political animosity, or the
deliberate fabrication of false evidence” may give rise to a
commutation-related due process claim. Anderson v. Davis,
279 F.3d 674, 676 (9th Cir. 2002) (citation omitted). In the
absence of such arbitrariness or invidious misconduct,
“notice of the hearing,” Woodard, 523 U.S. at 290
(O’Connor, J., concurring in part and concurring in the
judgment), “notice of the issues to be considered,” Wilson,
161 F.3d at 1187, and “an opportunity to participate in a[]
[pre-hearing] interview,” Woodard, 523 U.S. at 290
(O’Connor, J., concurring in part and concurring in the
judgment), generally satisfy the demands of the Due Process
Clause.
Further, even if we found an irregularity, there is some
uncertainty as to the proper harmlessness standard to apply
in review of state commutation proceedings. Cf. Washington
v. Recuenco, 548 U.S. 212, 218 (2006) (noting the general
presumption that harmless-error analysis applies to
constitutional violations). But we will afford Creech the
benefit of Chapman v. California’s generous standard, and
we therefore assume without deciding that the State bears the
burden of demonstrating that any error is “harmless beyond
a reasonable doubt.” 386 U.S. 18, 24 (1967).
Applying these standards, we reject all of Creech’s due
process arguments.
1. We first consider Creech’s argument that he was not
given adequate notice of the issues to be considered by the

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10 CREECH V. BENNETTS
Commission and the evidence to be presented at the
commutation hearing. Neither we nor the Supreme Court
have read the Due Process Clause to require advance notice
of the evidence to be presented at a commutation hearing,
and Idaho law does not confer a right to receive such notice.
Creech received notice of the hearing itself. See Woodard,
523 U.S. at 290 (O’Connor, J., concurring in part and
concurring in the judgment). And Creech was not misled as
to the issues that would be considered by the Commission.
See Wilson, 161 F.3d at 1187. The State gave Creech
considerable information about the logistics and substance
of his hearing well in advance thereof. The Commission’s
Executive Director met with Creech’s counsel three times
before the hearing to discuss the agenda and types of
evidence that would be presented. More than three weeks
before the hearing, Creech received from the State a copy of
the investigation packet that the Commission would be
reviewing. Although Creech may not have known all of the
specific evidence that would be presented during his
commutation hearing—such as evidence concerning the
Daniel Walker murder and the introduction of a picture of a
sock labeled “Creech,” which are discussed below—the
State satisfied the minimal notice requirements
contemplated in Woodard and Wilson.
2. We next reject Creech’s contention that the Due
Process Clause entitled him to the appointment of a
replacement commissioner when one Commissioner recused
himself. Idaho law does not expressly authorize the
appointment of a replacement commissioner in the event of
a recusal. This is far from “wholly arbitrary,” Schad, 732
F.3d at 947, and Creech has received more than the minimum
process he was due under the U.S. Constitution, see
Woodard, 523 U.S. at 290 (O’Connor, J., concurring in part

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CREECH V. BENNETTS 11
and concurring in the judgment), so he has failed to make a
cognizable procedural due process claim. And we decline to
speculate that the presence of an additional commissioner
would have changed the outcome. Cf. Brown v. Davenport,
596 U.S. 118, 133 (2022) (explaining that “set[ting] aside a
conviction based on nothing more than speculation that the
defendant was prejudiced . . . would be to give short shrift to
the State’s sovereign interes[t] in its final judgment” (citation
and quotation marks omitted) (final alteration in original)).
3. We disagree that ACPA violated Creech’s due
process rights by suggesting to the Commission that Creech
“committed the murder [of Daniel Walker] and got away
with it.” Although we will not review the substantive merits
of the Commission’s commutation proceeding, we will
assume that we may review Creech’s claim that fabricated
evidence was deliberately introduced by ACPA. See
Anderson, 279 F.3d at 676. The prosecutor’s statements that
Creech had been identified as Walker’s killer are not entirely
consistent with the San Bernardino Sheriff’s Office press
release about the Walker investigation released on
January 24, 2024, shortly after the commutation proceeding.
It appears2 that the prosecutor told the Commission that
Creech had been “positively identified as the murderer,”
although the press release identified Creech as only a
“suspect.” The press release also stated, however, that
“[d]etectives were able to corroborate intimate details from
statements Creech made regarding Daniel’s murder.”
ACPA’s slide does unequivocally state that “Thomas
Creech Murdered Daniel Walker.” Taken alone, that slide
2 Because there is no transcript or recording of the hearing, we rely
primarily on the meeting minutes attached as an exhibit to the parties’
filings.

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12 CREECH V. BENNETTS
might have been misleading by overstating the level of
certainty as to Creech’s involvement. But it appears from
the hearing minutes that the prosecutor correctly noted that
Creech had not been tried for, nor convicted of, Walker’s
murder, so the prosecutor’s statements did not mislead the
Commission into assuming that Creech had been found
responsible in a formal, legal sense.
We are also persuaded that correcting any purported
violation would not change the Commission’s vote to deny
Creech commutation. Creech’s alleged violations do not call
into doubt the stated rationales for the Commissioners’
votes. The Commissioners who voted to deny commutation
reasoned that Creech is not “worthy of grace or mercy” for
several reasons, including “the coldblooded nature of David
Dale Jensen’s murder,” as well as Creech’s “unwilling[ness]
to completely disclose the number of people he has killed.”
The Commissioners further opined “that the Jensen family
would not receive justice if Mr. Creech received clemency,
and above all else that they deserve closure in this case.”
Overwhelming evidence supports those conclusions.
It is true that the Commissioners who voted against
commutation noted “the sheer number of victims that
Mr. Creech has created over his lifetime” and that
“Mr. Creech was not interested in telling the truth about his
additional crimes.” But even taking Daniel Walker’s murder
out of the equation would not materially change the record’s
support for both of those observations. The prosecutor
alleged at the hearing that Creech had killed eleven people,
including Walker. Creech agreed that he had killed at least
nine people, but he claimed that he had never heard of one
of the names and did not kill Dwayne DiCicco. The
Commission then asked if Creech could settle “on at least
ten people[] that he killed,” to which Creech replied, “no.”

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CREECH V. BENNETTS 13
Contra Creech IV, 507 U.S. at 465 (“Creech has admitted to
killing or participating in the killing of at least 26 people.
The bodies of 11 of his victims—who were shot, stabbed,
beaten, or strangled to death—have been recovered in seven
States.”).
Even if the Commission had not been presented with any
information regarding the status of the Walker investigation,
it would have still had ample evidence that Creech had killed
many people, been implicated or suspected in other deaths,
and been dishonest about his involvement in the death of
DiCicco. Creech had previously confessed to killing
DiCicco, even going so far as to contact DiCicco’s mother
several times.
4. We also reject Creech’s argument that ACPA violated
his due process rights by introducing misleading or
fabricated evidence when it displayed a slide of a sock
labeled with Creech’s name. In 1995, the sentencing judge
found “beyond a reasonable doubt . . . . [that] [a]ll the
weapons which were used in this murder were made by Tom
Creech. Jensen was egged on to attack Creech so the
justification of self defense could be used. . . . Jensen
approached Creech holding a weapon made up of batteries
in a sock. The sock was later determined to be Creech’s.”
Findings of the Court in Considering the Death Penalty
Under Section 19-2515, Idaho Code, at 3–4, State v. Creech,
No. HCR-10252 (Idaho Dist. Ct. Apr. 17, 1995) (emphasis
added).3 The question of the authenticity of the sock in the
photograph and its probative value arose because Creech
contended at the Commission’s hearing that his remorse and
3 The state trial court’s findings are available as an exhibit at Second
Petition for Writ of Habeas Corpus, Creech v. Pasket, No. 99-CV-00224
(D. Idaho Mar. 24, 2005), ECF No. 131-1.

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14 CREECH V. BENNETTS
rehabilitation favored commutation. In support, he claimed
that he had accepted responsibility for his offenses. ACPA
responded by pointing to a pre-hearing statement that Creech
gave to investigators, where Creech contradicted the
sentencing judge’s 1995 factual finding that the murder
weapon was his by stating that it belonged to another inmate.
ACPA introduced the slide with the labeled sock to refute
Creech’s pre-hearing assertion that the murder weapon never
belonged to him. In a post-hearing declaration provided to
the Commission, Creech’s attorney stated that the prosecutor
falsely told the Commission during the hearing that the sock
bearing Creech’s name was the murder weapon. The
detailed notes of the hearing describe no such statement by
the prosecutor. The minutes state, instead, that in her closing
argument to the Commission, the prosecutor “displayed a
photograph of the matching sock that was found in
Mr. Creech’s cell. The name on the sock is ‘Creech.’”
Creech did not address at the hearing the sentencing judge’s
1995 factual finding that the murder weapon was his.
Even if we credit Creech’s attorney’s post-hearing
declaration that the prosecutor falsely told the Commission
that the sock bearing Creech’s name was the murder weapon,
there are other reasons why any such due process violation
was harmless beyond a reasonable doubt. The
Commissioners who voted to deny commutation did not
mention the sock, nor did they even discuss Creech’s
unwillingness to accept the 1995 factual findings that the
murder weapon belonged to him. As explained above, the
Commissioners who voted to deny commutation focused on
the reprehensible nature of Jensen’s murder without
reference to whether Creech had provoked Jensen’s initial
attack. The Commissioners were also concerned with both
Creech’s lack of candor about the number of people he had

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CREECH V. BENNETTS 15
murdered and justice for Jensen’s family. Overwhelming
evidence supports those reasons.
Bolstering our conclusion as to harmlessness, the
Commissioners were unanimous that Creech’s conduct—
including any evidence of his post-offense rehabilitation—
would not entitle him to mercy. The three Commissioners
who voted to recommend commutation were explicit that
their “decision was not based on any doubt or question about
Mr. Creech’s guilt or the horrific nature of his crime.”
Indeed, their reasoning was not “based on the actions and
conduct of Mr. Creech” at all. Instead, their vote reflected
“the time that had elapsed since Mr. Creech committed this
horrific crime,” and that the sentencing judge and former
Ada County deputy prosecutor “no longer believe that a
sentence of death is appropriate . . . .” It strains credulity to
suppose that the reference to the matching sock made the
difference in the Commission’s denial of commutation.
5. Finally, we disagree with Creech’s argument that the
Commission violated his due process rights when it failed to
pause the proceedings after the hearing based on his
complaints of unfairness. Creech raised both the Walker and
sock issues to the Commission after the hearing. The
Commissioners unanimously rejected Creech’s request to
defer proceedings pending further factfinding, suggesting
that the Commissioners did not consider either issue relevant
to the denial of commutation. The Commission had no
obligation to consider Creech’s request (which it did), let
alone grant it.
IV. CONCLUSION
Creech has failed to establish a likelihood of success on
the merits, and we find no legal or clear factual error in the
district court’s evaluation of the remaining preliminary

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16 CREECH V. BENNETTS
injunction factors. See Cal. Chamber of Com., 29 F.4th at
475. We dismiss as moot Creech’s motion for a stay pending
appeal.
AFFIRMED.

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