Thomas Creech, a death row inmate in Idaho, filed his third federal habeas corpus petition under 28 U.S.C. § 2254 shortly after his execution date was set for February 28, 2024. Creech had previously filed two habeas petitions; the first led to a resentencing in 1995 where a judge, rather than a jury, imposed the death sentence under Idaho law at the time. The second petition concluded in 2017, and the Ninth Circuit affirmed the denial of relief in 2023. In this third petition, Creech raised a new Eighth Amendment claim arguing that society's evolving standards of decency now require that a death sentence be imposed by a jury, not a judge. He contended that this claim was not ripe until a moratorium on executions in Arizona was implemented in January 2023, which he argued signaled a shift in national standards. The district court dismissed the petition as barred because it was a second or successive petition that could have been brought earlier.
The Ninth Circuit, in a per curiam opinion, affirmed the district court's dismissal based on the procedural bar of 28 U.S.C. § 2244(b). The court applied its precedent in Allen v. Ornoski, which establishes that a claim is considered 'second or successive' if it was ripe and could have been brought in a prior petition. The central legal issue was whether Creech's Eighth Amendment claim was ripe when he filed his previous petitions. Creech argued that the claim only became ripe after the 2023 Arizona moratorium. The court rejected this, reasoning that the factual predicate for his claim—a national movement away from judge-imposed death sentences—was clear immediately following the Supreme Court's decision in Ring v. Arizona in 2002. The court noted that even in 2002, only a small minority of jurisdictions authorized judge-imposed death sentences. Furthermore, the court observed that other states had imposed execution moratoria years before Creech's current proceedings, such as Oregon in 2011 and California in 2006. The court explained that once a claim becomes ripe, the passage of time or later events do not reset the ripeness clock. Therefore, Creech could and should have raised this constitutional argument during the pendency of his previous petition. The court distinguished this from cases like Ford v. Wainwright, where the claim of insanity only ripens at a specific time, noting that Creech's claim did not depend on a fluctuating standard but on a trend that was evident earlier.
The decision leaves Creech on death row with his execution scheduled for February 28, 2024. The ruling reinforces the strict procedural bar of AEDPA's second or successive petition statute, clarifying that litigants cannot delay raising constitutional claims regarding evolving standards of decency until a specific event occurs if the underlying trend was already evident. It confirms that the Ninth Circuit will not allow habeas petitioners to bypass the procedural bar by arguing that a claim only ripened later when the factual basis for the claim was available earlier.
Podcast (federal-narrative-summaries): Play in new window | Download