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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 51229 

THOMAS EUGENE CREECH, ) 

 ) 

Petitioner-Appellant, ) Boise, February 2024 Term 

 ) 

v. ) Opinion filed: February 9, 2024

 ) 

STATE OF IDAHO, ) Melanie Gagnepain, Clerk

 ) 

Respondent. ) 

__________________________________________)

Appeal from the District Court of the Fourth Judicial District of the State of Idaho, 

Ada County. Jason D. Scott, District Judge. 

The district court’s judgment is affirmed. 

Federal Defender Services of Idaho, attorneys for Appellant. Jonah J. Horowitz 

argued. 

Raúl R. Labrador, Idaho Attorney General, Boise, attorneys for Respondent. L. 

LaMont Anderson argued. 

_________________________________ 

BEVAN, Chief Justice.

Thomas Eugene Creech appeals from the district court’s order dismissing his successive 

post-conviction petition for relief as untimely. Creech was sentenced to death in 1995 for the 

murder of fellow inmate David Jensen. Creech argues that his death sentence, which was imposed 

by a judge without the participation of a jury, is unlawful based on the prohibition against cruel 

and unusual punishment under the U.S. Constitution and the Idaho Constitution. The district court 

dismissed Creech’s petition as untimely under Idaho Code section 19-2719. For the reasons stated 

below, we affirm. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

Creech is a capital inmate incarcerated by the State of Idaho.1 He pleaded guilty to firstdegree murder in 1981 and was sentenced to death by a judge in 1982. Creech appealed his death 

sentence to this Court, where he argued that “Idaho’s death penalty provisions are unconstitutional 

[because] jury participation is not required in the sentencing decision, but rather the discretion to 

impose a death sentence is vested in a judge.” State v. Creech (Creech I), 105 Idaho 362, 372, 670 

P.2d 463, 473 (1983). This Court rejected that argument, holding that “there is no federal

constitutional requirement of jury participation in the sentencing process and that the decision to

have jury participation in the sentencing process, as contrasted with judicial discretion sentencing, 

is within the policy determination of the individual states.” Id. at 373, 670 P.2d at 474. 

Creech then filed his first habeas petition, which was denied by the federal district court. 

Creech v. Arave (Creech III), 947 F.2d 873, 875 (9th Cir. 1991). On appeal to the Ninth Circuit

Court of Appeals, Creech argued “that the Constitution guarantees a jury trial on the existence of 

aggravating circumstances which may result in the imposition of the death penalty.” Id. at 885. 

The Ninth Circuit declined to adopt that argument, but granted Creech habeas relief regarding his 

death sentence. Id. at 881-86. The United States Supreme Court reversed part of the Ninth Circuit’s 

decision, but it did not disturb the grant of relief on Creech’s death sentence. See Arave v. Creech 

(Creech IV), 507 U.S. 463 (1993). Based on that grant of relief, the Court remanded the case for 

further proceedings because Creech was entitled to resentencing in state district court under the 

Ninth Circuit’s order. Id. 

Creech was resentenced in state district court in March 1995. State v. Creech (Creech V), 

132 Idaho 1, 6, 966 P.2d 1, 6 (1998). After hearing new mitigating evidence, Creech was sentenced 

to death by a judge, without jury participation. Id. at 6, 966 P.2d at 6. The 1995 death sentence 

remains in effect today and is the sentence from which Creech’s successive post-conviction case 

derives. 

Following a series of state and federal proceedings, Creech filed his second successive 

post-conviction petition in state court. In his petition, Creech argued that his death sentence was 

unconstitutional under the Sixth Amendment and that he was entitled to jury sentencing under 

Ring v. Arizona, 536 U.S. 584, 606-07 (2002), which held that statutory aggravating factors must 

1 Creech’s prior cases are complex and begin in the 1970s. The history is partly recounted in Creech v. Richardson, 

59 F.4th 372, 376-82 (9th Cir.), cert. denied, 144 S. Ct. 291 (2023). For ease of reference, this opinion briefly 

summarizes the relevant appeals and post-conviction claims that predate this appeal.
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be found by juries rather than judges. The district court dismissed the successive petition and this 

Court affirmed. 

After those state proceedings ended, the stay on a federal habeas proceeding that Creech 

initiated in 1999 was lifted. When Creech resumed his federal habeas case, he raised a variety of 

new claims, which included several jury sentencing claims. The federal district court dismissed 

those claims, Creech v. Hardison, CV 99-0224-S-BLW, 2006 WL 851113, at *1 (D. Idaho Mar. 

29, 2006) (unpublished), and after a protracted series of habeas proceedings, the Ninth Circuit 

affirmed, Creech v. Richardson (Creech VIII), 59 F.4th 372, 381 (9th Cir. 2022), and the U.S.

Supreme Court denied certiorari on October 10, 2023. Creech v. Richardson, 144 S. Ct. 291

(2023). 

After the Supreme Court of the United States denied certiorari, the district court issued a 

death warrant for Creech on October 12, 2023, scheduling his execution for November 8, 2023.

The next day, Creech filed the successive petition for post-conviction relief that is at issue. On 

October 16, 2023, the district court sua sponte dismissed Creech’s petition as untimely under Idaho 

Code section 19-2719. Creech timely filed a notice of appeal later that day.

Creech later sought and was granted a clemency hearing before the Idaho Commission of 

Pardons and Parole. As a result, on October 19, 2023, the district court stayed Creech’s execution.

I.C. § 19-2715(1). The Idaho Commission of Pardons and Parole denied Creech’s clemency 

request on January 29, 2024. On January 30, 2024, the district court signed a new death warrant 

setting Creech’s execution date for February 28, 2024. 

II. ISSUES ON APPEAL

1. Did the district court err in sua sponte dismissing Creech’s successive petition for postconviction relief? 

2. Did the district court err in concluding that Creech’s successive petition for post-conviction 

relief was untimely? 

III. STANDARDS OF REVIEW

“Whether a successive petition for post-conviction relief was properly dismissed pursuant 

to [Idaho Code section] 19-2719 is a question of law. This Court reviews questions of law de 

novo.” Dunlap v. State, 59 Idaho 280, 292, 360 P.3d 289, 301 (2015) (quoting Fields v. State, 154 

Idaho 347, 349, 298 P.3d 241, 243 (2013)). “A court must summarily dismiss any successive 

petition that does not meet the requirements of [Idaho Code section] 19-2719(5).” McKinney v. 

State, 133 Idaho 695, 701, 992 P.2d 144, 151 (1999). 
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IV. ANALYSIS

A. The district court did not err in dismissing Creech’s petition sua sponte. 

Creech argues that the district court erred in sua sponte dismissing his petition for postconviction relief on timeliness grounds without giving him the twenty-day notice required by Idaho 

Code section 19-4906(b), and without providing the State an opportunity to respond to Creech’s 

petition. The State counters that Creech’s petition, as a successive petition for post-conviction 

relief, is governed by the “[s]pecial appellate and post-conviction procedure for capital cases” set 

forth in Idaho Code section 19-2719. Those procedures require a successive petition for postconviction relief be dismissed summarily unless it is filed within forty-two days of the time “such 

claims for relief were known or should have been known.” I.C. § 19-2719(5). We affirm the district 

court and hold that it properly applied the forty-two-day time limit of section 19-2719(5) to 

Creech’s latest petition. Since the petition was untimely, the district court had “no power to 

consider any such claims for relief,” id., and was required to dismiss the petition summarily. I.C. 

§ 19-2719(11). 

Post-conviction proceedings are civil cases and governed by the Idaho Rules of Civil 

Procedure. Pizzuto v. State, 127 Idaho 469, 470, 903 P.2d 58, 59 (1995). Idaho Code section 19-

4906(b), which is part of the Uniform Post-Conviction Procedure Act (“UPCPA”), governs the 

summary dismissal of post-conviction proceedings generally. It permits trial courts to issue sua 

sponte notice of intent to dismiss such actions:

When a court is satisfied, on the basis of the application, the answer or motion, and 

the record, that the applicant is not entitled to post-conviction relief and no purpose 

would be served by any further proceedings, it may indicate to the parties its 

intention to dismiss the application and its reasons for so doing. The applicant shall 

be given an opportunity to reply within 20 days to the proposed dismissal. In light 

of the reply, or on default thereof, the court may order the application dismissed or 

grant leave to file an amended application or, direct that the proceedings otherwise 

continue. Disposition on the pleadings and record is not proper if there exists a 

material issue of fact.

I.C. § 19-4906(b).

Creech’s argument that the district court erred by dismissing his petition sua sponte

without providing notice is unavailing. If this matter were governed by this section of the UPCPA,

his argument might have merit. That said, this case involves a successive petition for postconviction relief by a defendant in a capital case. The procedures governing the process in such 

cases are delineated in Idaho Code section 19-2719. This Court has held that section 19-2719, 
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which again, applies specifically to capital post-conviction matters, “supersedes the UPCPA to the 

extent that their provisions conflict.” McKinney, 133 Idaho at 700, 992 P.2d at 149. “[Idaho Code 

section] 19-2719 is not a part of the [UPCPA], it merely serves to modify post-conviction 

proceedings in capital cases.” Pizzuto, 127 Idaho at 470, 903 P.2d at 59. 

Section 19-2719 sets forth special appellate and post-conviction procedures that apply in 

all capital cases. Fields v. State, 151 Idaho 18, 23, 253 P.3d 692, 697 (2011). These “special 

procedures shall be interpreted to accomplish the purpose of eliminating unnecessary delay in 

carrying out a valid death sentence.” I.C. § 19-2719. We interpret the statute accordingly. 

The Idaho Legislature has provided a directive that petitions not meeting the strictures of 

subsection five of Idaho Code section 19-2719 “shall be dismissed summarily[,]” i.e. without 

notice to the petitioner: 

Any successive petition for post-conviction relief not within the exception of 

subsection (5) of this section shall be dismissed summarily. Notwithstanding any 

other statute or rule, the order of dismissal shall not be subject to any motion to 

alter, amend or reconsider. Such order shall not be subject to any requirement for 

the giving of notice of the court's intent to dismiss. The order of dismissal shall not 

be appealable.

I.C. § 19-2719(11) (emphasis added). 

Creech argues that notwithstanding the clear mandate of this statute, interpreting Idaho 

Code section 19-2719 to permit sua sponte dismissals without notice in capital cases produces 

absurd results. This is so, he argues, because, quoting Creech’s brief, such an interpretation would 

mean that 

a post-conviction petitioner convicted of shoplifting and facing a six-month 

sentence will always be able to respond to the potential bases for the dismissal of 

his claims, in the form of a response to the district court’s notice of intent and 

potentially also in the form of responding to the State’s motion to dismiss [pursuant 

to I.C. § 19-4906(b)]. Yet a post-conviction petitioner convicted of first-degree 

murder and facing an execution might see his claim dismissed three calendar days 

after he filed it without any document being filed by the State and without any 

notice whatsoever.

Creech is correct that the notice provision of Idaho Code section 19-4906(b) requires

twenty-days’ notice to a petit thief who seeks post-conviction relief. But the fact that notice is not 

also required for a petitioner filing an untimely successive petition does not lead to an absurd 

result. If the district court determines that a successive petition in a death penalty case is untimely, 

it has no choice but to summarily dismiss the petition by the plain reading of the statute. See Idaho 
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Code § 19-2719. This is a requirement the legislature has imposed in an effort to “eliminat[e]

unnecessary delay in carrying out a valid death sentence.” Id. The summary dismissal provision 

in this section promotes those ends. 

This statute is directly applicable here and the district court correctly applied it.

B. Creech’s successive post-conviction petition is untimely. 

Along with the summary dismissal question, Creech argues that the district court erred in 

concluding that his successive post-conviction claim was timely based on an “evolving standards 

of decency” standard Creech claims is applicable under the Eighth Amendment.2 He asserts that a 

unique mixture of history and present judgment render his judge-imposed death sentence cruel and 

unusual punishment and that his evolving standards claim is timely. He relies on alleged historical 

and recent changes in societal norms that made his petition timely when filed on October 13, 2023.

These evolving standards include two primary data points: (1) A moratorium on the death penalty 

imposed by the governor of Arizona in January 2023; and (2) the absence of executions of judgesentenced defendants in the time after the moratorium. Creech also argues that the Arizona 

moratorium could not have been relied on as setting an evolving standard in early 2023 because 

the Arizona Supreme Court issued a death warrant on a jury-sentenced defendant named Aaron 

Gunches in February 2023. Although this warrant expired on April 5, 2023, Creech explains the 

delay in bringing his petition by maintaining that the standard of decency in his case was unclear 

at that point due to the unsettled legal environment in Arizona. Even so, he waited until October 

13, 2023, the day after Creech’s latest death warrant was issued, to file his petition. 

Idaho Code section 19-2719 generally provides a capital defendant with “one opportunity 

to raise all challenges to the conviction and sentence in a post-conviction relief petition.” State v. 

Rhoades, 120 Idaho 795, 806-07, 820 P.2d 665, 676-77 (1991); see also Paradis v. State, 128 

Idaho 223, 226, 912 P.2d 110, 113 (1996). A defendant who has been sentenced to death has fortytwo days from the filing of the judgment imposing the death sentence to file “any legal or factual 

challenge to the sentence or conviction that is known or reasonably should be known.” I.C. § 19-

2719(3). A challenge not filed within the forty-two-day filing period is waived. I.C. § 19-2719(5). 

2 A death penalty must accord with contemporary moral and social values by reflecting “the evolving standards of 

decency that mark the progress of a maturing society.” State v. Creech, 105 Idaho 362, 381, 670 P.2d 463, 482 (1983) 

(quoting Gregg v. Georgia, 428 U.S. 153, 181-82 (1976)).
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Creech relies on the statutory exception for challenges that “were not known or could not 

reasonably have been known” within the initial forty-two-day period:

If the defendant fails to apply for relief as provided in this section and within the 

time limits specified, he shall be deemed to have waived such claims for relief as 

were known, or reasonably should have been known. The courts of Idaho shall have 

no power to consider any such claims for relief as have been so waived or grant any 

such relief. 

(a) An allegation that a successive post-conviction petition may be heard 

because of the applicability of the exception herein for issues that were not 

known or could not reasonably have been known shall not be considered unless 

the applicant shows the existence of such issues by (i) a precise statement of the 

issue or issues asserted together with (ii) material facts stated under oath or 

affirmation by credible persons with first hand knowledge that would support 

the issue or issues asserted. A pleading that fails to make a showing of excepted 

issues supported by material facts, or which is not credible, must be summarily 

dismissed.

I.C. § 19-2719(5) (emphasis added). 

This exception permits a successive petition “in those unusual cases where it can be 

demonstrated that the issues raised were not known and reasonably could not have been known 

within the time frame allowed by the statute.” Rhoades, 120 Idaho at 807, 820 P.2d at 677

(emphasis added); see also McKinney, 133 Idaho at 701, 992 P.2d at 151. “The statute requires an 

objective examination of whether a defendant should have known of a claim at the time of the 

filing of the first petition.” Hairston v. State, 144 Idaho 51, 56, 156 P.3d 552, 557 (2007). A capital 

defendant who brings a successive petition for post-conviction relief has a “heightened burden and 

must make a prima facie showing that issues raised in that petition fit within the narrow exception 

provided by the statute.” Pizzuto, 127 Idaho at 471, 903 P.2d at 60 (emphasis added). 

Creech filed the petition at issue here on October 13, 2023. Creech has admitted that 

nothing unusual occurred during the forty-two days prior to October 13 that would have triggered 

the commencement of the forty-two-day window on or after September 1. For his petition to be 

timely when it was filed in October, something giving rise to Creech’s claim must have surfaced

in the forty-two days before his filing on October 13. No such facts exist.

As the record shows, even if we accept for purposes of argument that the current status of 

death penalty litigation in the United States somehow reflects an evolving standard that triggered 

the exception to the statute of limitations in section 19-2719(5), none of those triggers occurred 

during the forty-two days before October 13. As the district court correctly recognized, “[n]othing 
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of import to the viability of the claim asserted in the petition is alleged to have either happened or 

come to light . . . between September 1 and the filing of the petition” on October 13, 2023. The 

district court found that Creech’s claim “could have been asserted before September 1, with no 

less force than it can be asserted now,” and that it “does not genuinely depend on anything that has 

happened or come to light since September 1.” We agree with the district court’s conclusions. 

Thus, we hold that Creech failed to articulate a claim based on information he did not know or 

could not have known. As the claim is untimely, the district court properly dismissed it.

1. Requiring evolving standards claims to comply with the statute of limitations in Idaho 

Code section 19-2719 does not create due process concerns. 

In a related argument, Creech maintains that denying his claim based on timeliness violates 

“the Due Process Clause of the United States and Idaho Constitutions” because the lack of clear 

guidance on when a claim is ripe makes it so he has a “right without a remedy.” We disagree. Due 

process claims associated with Idaho Code section 19-2719 have been repeatedly rejected by this 

Court:

Abdullah also makes a passing effort at challenging the constitutionality of the 

time-bar in Idaho Code section 19-2719(5) as violative of due process to the extent 

it precludes the airing of Brady claims which reasonably could have been brought 

in a prior petition. As explained above, “even if the State violated a petitioner’s 

right to due process by withholding evidence, the petitioner [is still] required to 

raise this issue, like other constitutional issues, within the time frame mandated by 

[Idaho Code section] 19-2719.” Porter, 136 Idaho at 261, 32 P.3d at 155; 

McKinney, 133 Idaho at 706–07, 992 P.2d at 155–56; Rhoades, 120 Idaho at 806–

07, 820 P.2d at 676–74 (upholding the constitutionality of the general time-bar 

against capital petitioners under section 19-2719 under a procedural due process 

challenge); Pizzuto, 149 Idaho at 165, 233 P.3d at 96 (explaining that the issue is 

“settled”—Idaho Code section 19-2719 does not violate the Due Process Clause of 

the United States and Idaho Constitutions). Thus, an extensive discussion on [the] 

challenge here is unnecessary because it has already been rejected.

Abdullah v. State, __ Idaho __, 539 P.3d 947, 962–63 (2023) (emphasis added). As we explained,

Creech could have satisfied the exception under Idaho Code section 19-2719(5) by bringing his 

claim within forty-two days of when he knew or reasonably should have known of the facts 

supporting his claim, even if the facts to sustain his claim developed more than forty-two days 

after judgment. His decision to wait to file his claim in October 2023 does not create a due process 

violation.
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2. The text of the Eighth Amendment does not support Creech’s timeliness argument.

Finally, Creech maintains that the text of the Eighth Amendment supports his proposal to

use the date the State issued a death warrant as the start of the forty-two-day statute of limitations 

period. Creech argues that the infliction of a punishment is distinct from its imposition. As a result,

Creech maintains that capital punishment is inflicted when the State issues a death warrant, while

a punishment is imposed when the defendant is sentenced. Thus, according to Creech, the infliction 

of the punishment triggers Idaho’s statute of limitations under Idaho Code section 19-2719.

Such an interpretation is unsupported by the legal framework for Creech’s claims, and it 

would effectively eliminate the statute of limitations under Idaho Code 19-2719 because every 

petitioner could assert an evolving standards claim at the last possible date—i.e., shortly before 

their scheduled execution date—rather than when the claim becomes known or reasonably should 

have been known. Permitting successive filings based on the issuance of a death warrant would 

thwart the stated purpose of Idaho Code section 19-2719 by creating unnecessary delays in 

carrying out otherwise valid death sentences. Therefore, we hold that the time constraints of 

section 19-2719(5) do not violate the Eighth Amendment and we decline to adopt the issuance of 

the death warrant as the trigger for a timely evolving standards petition. 

V. CONCLUSION

The district court’s judgment dismissing Creech’s petition as untimely is affirmed. Shortly 

before oral argument Creech moved to stay his execution date of February 28, 2024, as set forth 

in the death warrant. Having issued this opinion more than fourteen days before February 28, we 

see no need to stay the execution date set forth in the death warrant. Creech’s motion to stay 

execution is therefore denied. 

Justices BRODY, MOELLER, and MEYER, and Justice Pro Tem BURDICK CONCUR.