Creech
v. Richardson,
No. 10-99105 (W. Fletcher with Bybee and Christen) –- The Ninth Circuit
affirmed the denial of an Idaho state prisoner’s habeas petition, in which he
challenged a death sentence imposed at resentencing following Creech v.
Arave, 947 F.2d 873 (9th Cir. 1991), rev’d in part, 507 U.S. 463
(1993).
The
district court had certified discrete portions of the petitioner’s claim of IAC
at sentencing for failing to present mitigating evidence. Under Browning
v. Baker, 875 F.3d 444 (9th Cir. 2017), the petitioner asked the court to
broaden the COA to include the entire claim. The court declined to do so,
reasoning that the district court had effectively complied with the directive
in Browning to “craft” the COA at “a higher level of generality.”
Plus, the district court had reexamined other parts of the claim when the case
was remanded for further proceedings in light of Martinez v. Ryan, 566
U.S. 1 (2012).
The
Idaho Supreme Court’s conclusion that absent mitigating evidence at
resentencing did not affect the outcome of the proceeding was reasonable.
Resentencing took place before the same judge who had originally imposed the
death sentence, and he took judicial notice of the evidence presented at the
first sentencing hearing. The only new evidence presented at resentencing
related to the petitioner’s childhood sexual abuse. Given the aggravated
nature of the killing, this new evidence and other evidence that was allegedly
absent from the resentencing would not have affected the outcome.
Because
of Shinn v. Ramirez, 142 S. Ct. 1718 (2022), the district court could
not consider new evidence presented for the first time in federal court under Martinez.
But even if it could, the court ruled that it would not have changed the
outcome of the resentencing hearing.
The
district court had dismissed some claims as subject to the second or successive
petition bar. The court reversed the dismissal of those claims but,
instead of remanding them for consideration by the district court on the
merits, addressed the merits of those claims and denied them. These
claims related to the validity of the underlying murder conviction, which the
petitioner was permitted to challenge for a second time under Magwood v.
Patterson, 561 U.S. 320 (2010). These claims went to a potential
conflict of interest in the public defender’s office and the trial court’s
decision to deny the petitioner’s request to withdraw his guilty plea.
The
court denied the petitioner’s request for a remand under Lackey v. Texas,
514 U.S. 1045 (1995), in light of the four decades that the peittioner has
spent on death row.
Finally,
the court denied the petitioner’s request to file replacement briefs in the
wake of Ramirez, because that decision did not affect the court’s
treatment of the claims in the appeal.
The
decision is here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/20/10-99015.pdf