F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T H O M A S E. C R

E E C H , Petitioner-Appellant
,

v

.

T I M R I C H

A R D S O N , W arden, Respondent-Appellee. No. 10-99015

D.C. No. 1:99-cv-00224-B L W

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho B . L y nn W inmill, Chief District J udg e, Presiding

Arg u ed and Submitted September 20, 2021

Pasadena, California

F iled J uly 20, 2022

B efore: W illiam A. F letcher, J ay S. B y bee, and Morg an Christen, Circuit J udg es.
Opinion by

J udg e W

. F letcherC R E E C H V

. R I C H A R

D S O N 2

SUMMARY *

Habeas Corpus/Death P e nalty

The pan el affirmed the district court’s denial of T h omas Eug ene C r eech’s second amended habeas corpus petition challeng ing his death sentence.

I n 1 9 81, while serving two life sentences for multiple convictions for first-deg ree murder, C r e ech beat a fellow inmate to death. After plead ing g uilty
, he w as sentenced to death in I d a h o state court. Creech obtained federal h abeas relie f w i th respect to his sentence, and was r esentenced to death in 1995. I n a second p e t i t i o n , Creech thereafter

u n s u c cessfully soug ht federal h abeas relief in the distric t court.

The district court g ranted certificates of app ea l a b ility (COAs) as to two issues.

F irst, Creech arg ued that the district court improperly denied part of Claim 4, in which he alleg ed that his attorney s provided ineffective a ssistance of counsel (I AC) at his 1995 resentencing b y f

ai l i n g to investig ate and present mitig ation evidence in a timel y a n d adequate fashion, failing to hire a mitig ation specialist, an d relying on an unqualified mental health ex pert. The I daho Supreme Court rejected Creec h’s I AC claims at the 1995 resentencing
, holding that Creek f a i l e d to prove either d eficient performance or prejudic e under Strickland v. W

ashington
, 466 U.S. 668 ( 1984). I n

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.C R E E C H V

. R I C H A R

D S O N 3

deny ing habeas relief p r ior to this court ’ s r emand under Martinez v. R

y a n , 566 U.S. 1 ( 2012), the district court reaffir m e d t h a t h olding

. T he panel a g reed with the district
court that the I daho Supreme Court reasonably found a lack of prejudice under the second prong of Strickland

. The panel held further that unde r 2 8 U.S.C. § 2254(e)(2) the district
court w as correct in declining to hold an evidentiary h earing

on the new e vidence that C r eech soug ht to introduce to bolster his I A C resentencing claim.

Second, Creech arg ued under Martinez that five alleg edly procedurally defaulted sub-claims of I AC at the 1995 resentencing should be heard on the merits. Under Martinez
, a federal h abeas court may find cause to ex cuse a procedural default where (1) the underlying ineffective a ssistance claim is substantial ; ( 2 ) t he petitioner was not represented or h ad ineffective counsel during the state post-convic tion r eview (PCR) proceeding ; (3) the state PCR proceeding was the initial review proceeding ; a nd (4) sta t e l a w r equired (or forced as a practical matter) the petitioner to bring the claim in the initial review collateral proceeding

. Only the first a nd second requirements were at issue here, and in practical effect, the prejudice analy sis under both of th ose requirements is the same—there must be a reasonable probabili t y t hat, but f

or counsel’s unprofessional e rrors, the result of the proceed i n g would have been different. At the time of the district court’s decision after this court’s Martinez remand, the c ourt could consider new evidence supporting a claim of I AC by P C R c o unsel in determining whether a petitioner satisfies the requirements of Martinez without

run n i n g a foul of 28 U.S.C. § 2254(e)(2) and Cullen v

. Pinholster
, 563 U.S. 170 (2011). After th e p anel heard oral
arg ument, however, th e S upreme Court decided Shinn v

. Ramirez
, 142 S. Ct. 1718 (20 22), g reatly restricting theC R E E C H V

. R I C H A R

D S O N 4

circumstances in which a fede ra l habeas court deciding Martinez claims may c o n s ider evidence bey ond that already contained in the state court record. The distr i c t court considered all of the proffered new evidence and held that it

was insufficient to transform into a new I AC claim the p art o f Claim 4 that alleg ed I A C during Creech’s 1995 resentencing

. The district court held that the sub-claims at issue in this appeal were therefore not p rocedurally defaulted new c laims and that Mart inez did n ot apply

. The panel wrote that even in the absen c e o f Ramirez
, it would have ag reed with the district court b ecause most of the new e vidence introduced on federal h abeas review in support o f Creech’s arg ument that he suffers from an org anic disorder was duplicative of evidence introduced during the 1995 resentencing

. The panel reached the same result under Ramirez

. B e cause it could not consider the evidence presented for the first time to the district court, Creech’s M

artinez claim necessarily

fails.

Creech soug ht to appeal four uncertified issues.

The panel d enied a COA as to Creech’s claims (1) that the district court erred in summarily deny ing his mo t i o n f o r reconsideration of its deni a l of his second habeas petition, (2) that the I daho Supreme Court violated t he Due Process Clause by refusing to al low him to w ithdraw h is g uilty plea prior t o his first resentencing
, and (3) that the duration o f Creech’s confinement for his murder constitute s cruel a nd unusual punishment in violation of the Eig hth Amendment.

The panel g ranted a COA a s to Creech’s arg ument under Magwood v. Patterson
, 561 U.S. 3 20 (2010), that cl a i m s i n his second federal habeas petition attacking his g uilty plea a re not “second or successive ” u n d e r 28 U.S.C. § 2244(b) a nd should be decided on the merits. B ased on Ma gw o od a ndC R E E C H V

. R I C H A R

D S O N 5

l ater cases decided by this circuit, the p anel concluded t h at because Creech’s orig inal sentence was vacat ed a nd a new sentence was imposed, the claims are not barred as second o r

s uccessive. Rather than remand the c laims to the dist r i ct court, the panel denied t h e m , h o lding that the I daho courts (1) did n ot unreasonably find Creech’s a rg uments as t o trial counsel’s purpor t e d co nflict of interest to be w ithout merit, (2) did not unreasonably conclude that Creech failed to show that trial c o u n sel should have moved to withdraw his g uilty plea on the g round that Creech was incompetent, (3) did not unreasonably conclude that Creech failed to show that I AC at the g u ilt phase on the basis of trial c ounsel’s purported failure
to communicate w ith him, and ( 4) did not unreasonably reject Creech’s claim that coun s e l ’s f ailure to investig ate his purport e d history o f violence led him to plead g u ilty rather than insist on g oing to trial on a theory of self-defense.

COUNSEL

J onah J

. Horwitz (arg

ued), B ruce D. L iving st o n , and Teresa A. Hampto n , Federal Defender Services of I daho, Capital Habeas Unit, B oise, I daho; D enise Young
, Tucson, Ariz o na; for Petitioner-Appellant.

L

. L aMont Anderson (arg

ued), Chief, Capital L itig ation Unit; L awrence G. W asden, Attorney General; Attorney G eneral’s Office, B oise, I daho; for Respondent-Appellee.C R E E C H V

. R I C H A R

D S O N 6

OP INION

W

. F L ETCHER, Circuit J udg e:

Petitioner-Appellant Thomas Eug ene Creech appeals the denial of his 28 U.S.C. § 2254 petition for a writ o f h a b e a s corpus. I n 1981, while serving two life sentences for multiple convic t ions of first-deg ree murder, Creech beat a fellow inmate to death. After pleading g uil ty , he w as sentenced to death in I d ah o s tate court. Creech obtained federal h abeas relief wi t h r e spect to his sentence. He was resentenced to death in 1995. After the reimposition of the death penalty in 1995, in a s econd petition Creech u nsuccessfully soug ht federal habeas relief in federal district court.

The district court g ranted cer t i f i cates of appealability (“COAs”) as to two issues, and Creech appeals both of those issues. F irst, Creech a

r g ues that the district court improperly denied part o f Claim 4 o f his habeas pe t i t i o n , in which he alleg es that his attorney s provided ineffective assistance o f counsel (“I AC”) at his 1995 resentencing. S econd, Creech
arg ues under Martinez v. Ryan
, 566 U.S. 1 (2012), that five alleg edly procedurally defaulted sub-claim s o f I AC at the 1995 resentencing should be heard on the merits.

I n addition, C reech seeks to appeal f our uncertified issues. F irst, Creech arg ues that the d istrict court erred in summarily de n y i n g reconsideration of its decision denying relief under Martinez

. S e cond, Creech a r g ues that the I daho courts unconstitutionally prevented him from withdrawing hi s g u ilty plea. Third, Creech arg ues under Magwood v. P a t t e r s o n , 561 U.S. 320 (2010), that claims in his second federal h abeas
pe t i tion are not “second or successive” under 28 U .S.C. § 2244( b) and should be decided o n the merits. F ourth,C R E E C H V

. R I C H A R

D S O N 7

Creech arg ues under Lackey v. Texas
, 514 U.S. 1045 (1995), that w e should remand t his case f or the district court to determine w hether t he duration of his confinement while awaiting ex ecution constitutes cruel and unusual punishment under the Eig hth Amendment.

W e affirm the district cou rt on the two certified issues. W e g rant a COA a s t o t h e third uncertified issue a nd affirm the district c ourt on that issue. W e deny COAs a s to the f irst, second, and fourth uncertified issues.

I . B ackg round

A. The Crime and Guilty Plea

W h ile serving life sentence s f or f irst-deg ree murder, Creech beat to death a fellow inmate, David Dale J ensen, in the max imum security tier of the I d aho State Correctional I nstitution

. J ensen, in p rison for stealing a car, was twenty

three y ears old and suffered from p h y sical and mental disabilities. He was partially p araly z ed, an d a p l a stic plate had been surg ically

embedded in his skull.

Creech a ttacked J ensen, repeatedly hitting him in the head with a battery -filled sock until the plate embedded in his skull shattered, h i s s kull caved in, and blood was splashed on the floors and walls. State v. Creech (“ Creech I ”), 670 P.2d 463, 465 (I daho 1 983). Creech took breaks during th e b e a t i ng

. After the sock broke and the b atteries fell out, Creech kicked J ensen in the throat while J e nsen lay sprawled on th e f loor. J ensen was found by a prison g uard a nd taken to the hospital. He died on the operating table the same d ay

. Creech had four
pr ior murder convictions when h e killed J ensen. Creech claimed re s p o n s ibility for k illing twenty -six people, and theC R E E C H V

. R I C H A R

D S O N 8

bodies of eleven of his victims were later recovered in seven states.

Creech was charg ed wit h first-deg ree murder for k illing J ensen. Represented by the I daho Public Defender’s o ffice, he initially entered a plea of n ot g uilty

. H e later wrote a letter
to the trial judg e, J udg e Robert Newh o u s e , requesting a chang e of plea hearing

.

J udg e N ewhouse held a chang e of plea hearin g in
response to Creech’s letter

. C r eech’s attorney , Rolf Kehne, informed the court that Creech w as pleading g uilty ag a inst his

a dvice and requested a five-day continuance. Cre e c h indicated he d id not w ant a continuance. Kehne then asked
to withdraw f

rom representation on the g round that Creech refused to follow his leg al advice. J udg e Newhouse denied the request, statin g , “ I think he should at least have counsel
to inform him of the law and what’s g oing on.” After the prosecution summariz e d the evidence it was prep ar e d to present a t trial, and after a plea coll o q u y , J u dg e N ewhouse

a ccepted Creech’s g uilty plea and ordered a presente n c e report.

B . I nitial Sentencing Hearing s

Creech’s fi r s t sentencing hearing was held in J anuary 1982. T he prosecution and the defense each presented ex pert mental health testimony

. Dr. Fl oy d L aMarr Hey r end, a psy chiatrist with training in neurolog y who had served as a witness for Creech in one of C reech’s prior murder trials, appeared for the prosecution. Dr. Hey r end had testified in the prior trial that Creech had antisocial personality disorder a nd acted impulsively w i t

h o ut a d e q u a t e forethoug ht and sufficient consideration for others, but that Creech could appreciate theC R E E C H V

. R I C H A R

D S O N 9

wrong fulness of his conduct and conform that conduct to the require ments of the law. At Creech’s 1982 sentencing hearing
, Dr. H ey

rend testified that Creech could presen t ly “recog n iz e the wrong fulness o f h is behavior,” but also that there was some evidence t h a t Creech ex hibited schiz o ty pal thinking and could drift into f lorid psy chosis during times o f
stress. B a sed on prior testing in 19 7 4 a n d 1975 and an electroencephalog

ram c o n d

ucted the week before his testimony
, Dr. Hey

rend opined that Creech did not suffer from org anic brain disorder.

P s y cholog ist Dr. J ohn Stoner testified for Creech. H e testified that Creech had a ntisocial personal i ty disorder, schiz oty pal p e r sonality disorder, and borderline personality disorder. Dr. Stoner testified that Creech’s striking ly uneven performance on different ty pes of mental tests “strong ly
sug g est[ e d] the presence of a n o rg anic brain dis o rd e r

. ” He testified that Creech would have b een able to apprec i ate the
wrong fulness of his actions at the beg inning of the encounter with J ensen, but that, once the attack commenced, Creech h ad “a rag e reaction during which he would neither appreciate the
wrong fulness nor b e able to c onform his behavior; that is, he
went into a self-maintaining a ssaul t i ng rag e.” Dr. Stoner testified that individuals with similar disorders to Creech h ad no prospects of therapeutic rehabilitation.

Creech took the stand on his own behalf. He testified that he had k i l l e d twenty -six people, a number of whom he believed had g ang -raped his deceased f o r m e r wife. He testified that two other inmates had a sked him “to kill J ensen for money ,” and another inmate offered to help him e scape from the penitentiary in ex chang e for J e nsen’s killi n g

. Creech testified that he ga v e someone a knife to g ive to J ensen; that J e nsen then attacked Creech with the knife as anC R E E C H V

. R I C H A R

D S O N 10

effort to impress o ther inmates who “ w oul d n ’ t a ccept him because he was partially crippled”; and that C r e e c h then killed J ensen. W hen asked on cross-ex amina t ion what
sentence he wanted J udg e N ew h o use to g ive him, Creech replied, “I

want him to sentence me to death.”

On J anuary 25, 1 982, in a written decision, J u dg e Newhouse sentenced Creech to d e a th. He found in mitig ation that Creech had been justified in p rotecting himself ag ainst an unprovoked attack by J ensen. H o w e v er, he also found that J ensen, “a y oung , inex perienced, handicapped m an” with “both phy sical and mental impairments,” had been “ under the complete domination and control” of Creech once the attack beg an, and that J ensen’s murder, “ once commenced, appears to h ave been an intentional, calculated act.” J u dg e N ewhouse found that five statutory ag g ravati n g factors under I daho Code § 19-2515 had been proven bey ond a reasonable doubt: (1) Creech had previously been convicted of f our first-deg r ee murders—two in 1976, o ne in 1979, and one in 1980; (2) Creech “ex hibited utter disreg a rd for human life” during J ensen’s murder; (3) J ensen’s mur d er came within the definition of I daho Code statutor y a ggravating factor § 18- 4003(c) because Creech w as serving a first-deg r ee m u r der
sentence at the time of the crime; (4) J ensen’s murder came within the definition of I daho Code statutor y a gg ravating factor § 18-4003(e) because Creech killed J ensen while both

were incarcerated in the I daho State Correctional I n stitution; and (5) Creech, “by p rior conduct or c o n d u c t in the commission of the murder at hand

. . . ex hibited a propensity
to commit murder which w ill probably constitute a co n t i nuing threat to society .”

On F ebruary 24, 1983, the I daho Supreme Court vacated Creech’s death sentence b e c ause it h ad not been imposed inC R E E C H V

. R I C H A R

D S O N 11

open co u r t i n t he presence of Creech and his counsel a s required by I daho law. On remand, J udg e New house held a hearing at which Creech a nd h is counsel were present. J udg e Newhouse read his previous finding s into the record a nd
ag ain sentenced Creech to death. J udg e Newhouse did n ot permit Creech to present additional mitig ation evidence at the second sentencing hearing

. O n May 23, 1983, a divided I daho Supreme Court affirmed. Creech I , 670 P.2d at 465.

C. F irst State Post-Conviction Review Proceeding s

I n stat e c ourt post-conviction review (“PCR”) proceeding s before J udg e Newhouse, Creech moved to withdraw his g uilty plea. He asked for no other relief. See State v. Creech (“ Creech II ”), 710 P.2d 502, 504 (I daho 1985). D uring a four-day e videntia r y hearing in F ebruary 1984, Creech testified ex tensive l y about the details o f J ensen’s death and his reasons for p leading g uilty

. On March 6, 1 9 84, J udg e Newhouse denied Creech’s motion to withdraw his plea. The I daho Supreme C o u r t affirmed. Id. at 507.

D. F irst F ederal Habeas Proceeding s

C r e ech soug ht federal habeas corpus under 28 U .S.C

. § 2254. Our court g ranted relie f w i th respect to Creech’s
sentence. W e held: (1) the state trial court committed constitutional error when it refused to allow Creech to present additional mitig ation evidence at h is second sentencing hearing ; (2) the trial cou r t applied two statutory ag g ravating factors, I daho Code § 18-4003(c) and (e), without making the requisite finding s of specific intent to kill; a n d (3) the trial
court applied an u nconstitutionally vag ue “utter disreg ard for human life” ag g ravating factor. Creech v. Arave (“ Cr e echC R E E C H V

. R I C H A R

D S O N 12

III ”), 947 F .2d 873, 881–85, 8 88 ( 9th Cir. 1991). The Supreme Court reversed our third h o l d i ng

. I t h eld that the I daho Supreme Court’s limiting c onstruction o f I d aho’s “utter disreg ard” ag g ravating factor saved the instructio n from unconstitutionality

. A rave v

. Creech (“ Creech IV ”), 5 07 U.S. 463, 471 (1993). The Cou rt d id not disturb our other two holding s, leaving intact our remand for resentencin g. Id. at 478–79.

E. Resentencing Hearing in 1995

Althoug h no long er a public defender, Kehne represented C r e e c h at his third sentencing hearing
, assisted by his law partner J o h n A dams. Kehne and Adams obtained several continuances in order to in vestig ate and prepare for the hearing

. A five-day resentencing h e ar i n g was held before J udg e Newhouse in March and April of 1995.

The defense called f

our witnesses, includi n g C r eech, at the hearing

. Creech’s sister, Virg inia Plag eman, and her husband, Michael, e a ch testified about Creech’s personality
, family b ackg r ound, a

n d childhood. Virg in i a discussed the family ’s mental h ealth problems, including depression, social withdrawal, and a

ng e r manag ement. She testified that Creech’s maternal g r andparents were cousins and that Creech’s mother “left society ” after h er y oung est son died at the ag e of thirteen months. V irg inia also described Creech’s three surviving brothers, two of whom had been convicted o f murder or manslaughter.

Virg inia testified th a t Creech’s childhood was characteriz ed by poverty and phy sical abuse, but she specified that the abuse was not sex ual. She testified that, on

one occasion, Creech fell down a staircase onto concrete; wasC R E E C H V

. R I C H A R

D S O N 13

knocked unconscious; bled from his nose, mou t h
, a nd possibly ears; and w as hospitaliz ed for a few day s before their mother took him home ag ainst medical advice

. V irg inia testified that Creech h a d ex perienced escalating problems beg inning in e arly childhood, and that he strug g led to discern the difference between rig ht a nd wrong

. She testified that, in
recent y ears, Creech h ad calmed down and had become more loving and kind. S h e testified that Creech’s wife, whom he had married after h is conviction in this case, had been a positive influence on him.

Dr. Steven B rown, a clinical ps y cholog ist, also testified for Creech. D r. B rown had interviewed Creech twice and h ad

r e v iewed the updated presentence reports, psy c h i a t r i c r e c o r d s , and hospital records. H e testified that Creech scored in the ninety -six th p e r c e n t i le for psy chopathic traits when compared
to the g eneral prison p opulation. He testified that Creech was

a “prototy

pical or c lassic psy chopath, a n d t h at if any psy chopaths have a biolog ical predisposition,” then “somebody w ho has such an ex treme f orm as Mr. Creech probably does.” Dr. B rown noted the sig nificance of the fact that two of Creech’s brothers w ere also murderers: “ The fact that two of his b rothers are murder er s i s strong anecdotal evidence that there’s a g enetic contribution in his family

. I t’s f a irly outstanding that there are three murderers in o ne family .” Thoug h Creec h ’ s electromy og raphy test r esults

were within normal limits and there was no direct evidence o f

a biolog ical basis for Creech’s condition, Dr. B rown testified that “there’s probably

a biolog ical contribution.”

The State called six wi t n esses whose testimony focused

o n C reech’s conduct in prison a n d whether he posed a security concern.C R E E C H V

. R I C H A R

D S O N 14

On April 17, 1995, J udg e Newhouse ag ain s e n t enced Creech to d eath. He f

ound the following facts in mitig ation: (1) Creech was forty -four y ears old, and most violent acts a re committed by m ales y oung er than thirty ; (2) Creech completed high s c hool throug h eleventh g r ade and h ad acquired his GED; (3) Creech took pride in cooperating with law enforcement; (4) Creech was creative, writing song s, poetry , a nd prose and p lay

ing the g uitar; (5) Creech’s current wife had been a positive inf l u ence on him; and (6) Creech
may be biolog ically

predisposed to violence.

J udg e Newhouse found the same five statutory ag g r avating factors h e had found in 1982. However, this time, in d iscussing a g g ravating factors under I d aho Code § 18-4003(c) and (e), h e f o und that Creech had a ttacked J ensen with specific intent to kill. J udge N ew h ouse noted that “[ Creech] indicates an inte n t i o n to commit f urther murders if he is ever released” and that “[ a] ny thing less than
t otal isolation would g ive rise to a substantial chance o f the defendant killing ag ain.” He c oncluded, “The protection o f society demands tha t Thomas Eug ene Creech receive the death penalty .”

F . Second State Post-Conviction Review Proceeding s
During Creech’s second state court PCR pro c eeding s before J udg e N ewhouse, Creech was represented by I d aho Public Defender Aug ust Cahill. Creech claimed that Kehne and Adams had been ineffectiv e at h is r esentencing h earing in 1995. After several continuances, a four-day evi d e n t iary hearing was held in Octobe r 1 9 9 6

. Creech presented testimony from his ex -wife Emma J e an Asbrock and their daug hter Shelley Renae Creech. A sbrock and Shelley
t e s t ified that Creech may h ave suffered sex ual abuse at t h eC R E E C H V

. R I C H A R

D S O N 15

hands of his aunt and uncle when he w as a child. Shelley also discussed her own a

nd her moth e r ’s mental health difficulties. Kehne a nd Adams took the stand, testify ing that t h e y h ad been ineffective at Cr ee c h’s 1 995 resentencing hearing

. J udg e N ewhouse denied relief, finding that “Mr. Kehne ha[ d] performed w ith outstanding competence in a case where the chance for success was ex tremely re m o t e

. ” After consolidating Creech’s appeal f rom the trial c ourt’s judg ment with his appeal from the denial of PCR relief, the I daho Supreme Court affirmed. State v. Cree c h (“ Creech V ”), 966 P.2d 1, 23 (I daho 1998).

G. Second F ederal Habeas Proceeding s

Creech timely filed a s econd § 2254 habeas petition on J anuary 20, 2000. Proceeding s w e r e stay ed until J anuary 2005 w hile Creech unsuccessfully pursued o t h er state postconviction relief. On March 24, 2005, Creech filed a second amended petition, the operative pleading in this appeal.

I n March 2006, the district court found that c ertain claims, including some I AC claims, had been proc e d u ra lly defaulted. I t permitted discovery with respect to these c laims but warned that the claims “will be dismissed unless, after a period of limited d iscovery
, Peti tioner can show cause a nd prejudice to ex cuse any default.” Procedural default in PCR proceed i n g s w as then g o verned by the cause and prejudice standard of Coleman v. Thompson
, 501 U .S. 722 (1991). The
court allowed men t a l h ealth ex perts and a mitig ation specialist to meet with Creech.

Creech filed a motion for an evidentiary hearing in Aug ust 20 0 7

. Creech proffered additional mitig ation evidence in support o f h i s m o tion. That evidence providedC R E E C H V

. R I C H A R

D S O N 16

substantial additional support for the conclusion that Creech suffered from an org a

nic brain disorder. I n March 2008, the district court denied Creech’s motion for an evidentiary hearing

.

The dis t r i c t court h eld that 28 U.S.C. § 2254(e)(2) foreclosed an evidentiary hearing on the additional mitig ating eviden c e Creech submitted in support of his motion. The
court nonethe l e ss considered the additional e vidence on the merits, concluding that “ [ m] uch of this information was already before the state courts, albeit in a less specific way

. ” The c ourt wrote that the “state c o urts already a s s u m e d the truth of Dr. B rown’s testimony in 1995 that there could be a biolog ical aspect to Creech’ s violent behavior, and that fact

was not sig nificant to the outcome.” I n the court’s view, “[ a] neurolog ist’s opinion that Creech h a s b r a in damag e may be

more specific than Dr. B rown’s testimony
, but it would have provided only a modest counterweig ht to the heavy
ag g r avating factors.”

The district court dismissed Cree c h ’ s second amended habeas p etition with prejudice on March 31, 2010. The court gr a nted COAs on five claims. One o f the COAs autho r i z e d

an appeal from the denial o f the part o f Claim 4 that alleg ed I AC at Creech’s resentenc i n g i n 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 o f Claim 4 addressed to I AC at the 1995 resentencing

.

After oral arg ument on appeal, the Supre m e C o u rt decided Martinez v. Ryan
, 566 U.S. 1
, 17 (2012), holding that I AC b y PCR counsel in an initial-review PCR proceeding can

ex c u se a procedural default of a claim of I AC of trial counsel. W e remanded to the district court to consider, in lig ht o fC R E E C H V

. R I C H A R

D S O N 17

M a rtinez
, whether counsel had b een ineffective duri n g Creech’s second PCR proceeding in failing to present c ertain sub-claims under Claim 4. All of the sub-claims at issue alleg ed I AC at the 1995 resentencing

.

Seventeen possibly defaulted sub-claims und er Claim 4

were before the d i s t r ict court on remand. The district court held t h a t C r eech waived all but six of the sub-claims b y failing to arg ue them. Of the remaining six
, the district court found that only o n e , contained in ¶ 100(a), had been procedurally defaulted. That sub-claim w as that trial counsel had failed to “prepare, develop, and present a coherent sentencing strate gy ” a t the 1995 resentencing

. The district
court held that PCR counsel had not performed deficiently in failing to p re s e nt that sub-claim, and, in the alternative, that there was n o prejudice resulting from the failure to present it. The d istrict c ourt held that the o t her five sub-claims, contained in ¶¶ 1 00(b)
, (d )
, (j), ( o )(iii) and ( o )(iv), had not been procedurally d efaulted b y PCR counsel. Rather, it held,
t hey had been presented by Creech’s counsel to the PCR court, had b een decided a dversely b y that court, and had been decided adversely

by the federal district court.

Creech p re sented additional evidence on remand. Creech’s counsel submitted various medical records, as w ell

a s a declaration that she had consulted with a neuropsy cholog ist who h ad c o n cluded, based on those

me d i cal records, that Creech may have suffered from an org anic b rain disorder. Properly considering this new evidence under the law in effect at the time, the district court concluded that it was compa r a b l e to the evidence submitted
to the district court in support of Creech’s pre-remand motion f o r a n e videntiary hearing
, and that it added little to the information that had bee n before the state PCR court. TheC R E E C H V

. R I C H A R

D S O N 18

court wrote, “Over the course of the two sentencing hearing s and the state p ostconviction proce e d i n g s , it had been wellestablished that Creech mig h t, indeed, have s o m e

. . . biolog ical o r g enetic c omponent that contributed to his antisocial and violent behavior . . . .”

The district court on remand held that the entirety of the additional evide n c e o f I A C that Creech soug ht 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 Ci r

. 2014) (en banc), to “fundamentally alter[ ] ” these five sub-claims and thereby to t r an sform them into

unex h a usted a n d procedurally defaulted new claims. The
court wrote, “The evidence that Petitioner bring s forward in this Court, althoug h more specific, adds little substance to the evidence that the state courts considered when a dju d i cating Petitioner’s mitig ation-based I AT C claims. The evidence submitted for the first time in this Cou r t s i mply does not substantially improve the evidentiary posture of those claims.” B ecause the sub-claims had n o t been transformed into procedurally defaulted new claims, Marti n ez did not apply

.

The district court reaffirmed its previous g rant of a COA

as to the part of Claim 4 al l e gi n g I AC a t the 1995 resentencing

. I t g ran t e d a new COA as to its d enial o f Creech’s request for r elief under Martinez as to the five subclaims contained in ¶¶ 100(b), (d), (j), ( o )(iii) and ( o ) (iv). I t denied a COA as to any

other issue.

Creech filed a moti o n fo r r econsideration. He p roffered additional new evidence that he arg ued fundamentally a ltered the f ive sub-claims and transformed them into new claims. T he district court denied the motion for r econsiderat i o n ,C R E E C H V

. R I C H A R

D S O N 19

refusin g to consider the additional new evidence o n the
g round that it could, a

nd should, have been presented as part of the initial proceeding o n remand. The district court denied a COA as to this issue.

Rather than appeal on al l o f t h e g r ounds on which he previously appealed to this court, Creech now appea l s o n ly the two c ertified issues and four uncertified issues described at the beg inning of our opinion.

I I . Standard of Review

W e ha ve jurisdiction pursuant to 28 U.S.C. § 2253. W e review de novo a d i s t r ict court’s dismissal of a h abeas petition. Runningeagle v. Ryan , 825 F

. 3d 970, 978 (9th Cir. 2016) (citing Sexton v. Cozner
, 679 F .3d 1150, 1153 (9th Cir. 2012)). W e review for clear error the district court’s finding s of fact. Buckley v

. Terhune
, 441 F

. 3 d 688, 694 (9th Cir. 2006) (en banc) (citing Riley v. Payne
, 352 F .3d 1313, 1317 (9th Cir. 2003)). W e review for abuse o f discretion the denial of a r e quest for an evidentiary h earing

. S t a n l ey v. Schriro
, 598 F .3d 612, 617 (9th Cir. 2010) (citing S c h riro v

. Landrigan , 550 U.S. 465, 468 (2007)).

W e may g rant habeas relief u nder th e A ntiterrorism a nd 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 a p p lication of, clearly established F ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision t h a t w a s based on an unreasonable determination of the f acts in lig ht

o f the evidence presented in the State court procee d i n g

. ” 28 U.S.C. § 2 254(d). The phrase “clearly established F ederal law” “refe r s to the holding s, as opposed to the dicta, of theC R E E C H V

. R I C H A R

D S O N 20

Supreme Court’s decisions as o f the time o f the relevant
state-court decision.” Carey v

. Musladin
, 549 U.S. 7 0, 7 4 (2006) (quoting W

i l liams v

. Taylor
, 529 U.S. 362, 412 (2000)).

S t a t e

- court finding s of fact are presumed to be correct. This pr e sumption can be rebutted only by clear a nd convincing evidence. 28 U.S.C. § 2254(e)(1).

I I I

. Discussion

A s a preliminary matter, relying on Browning v. Bake r , 875 F .3d 444 (9th Cir. 2017), Creech arg ues t h a t we should broaden the C O A on the first issue—I AC at the 1995 resentencing u nder Claim 4—to include every claim and subclaim addressed to that issue. W e wrote in Browning :

W h ile an individua l claiming I AC “must i d e ntify the acts o r omissions of counsel tha t

are al l ege d n ot to h ave b een the result o f reasonable professional judg ment, ” the court considers counsel’s conduct as a whol e t o determine whether it was cons titutionally adequate[ .] T he distr i c t court d istorted this inquiry by separating B rowning ’s I AC
arg ument into individual “claims” of I AC corresponding to particular instances o f [ defense attorney ] Pike’s conduct. This approach was misgu i d ed. Rather, the I AC portion of the COA should have been crafted at a hig her level of g e n e r ality

.

Id. at 471 (citations omitted).C R E E C H V

. R I C H A R

D S O N 21

I n the case before u s, the question at is s u e w a s whether Creech r e c e ived I AC during his 1995 resentencing

. B rowning was decided after the d istrict court’s decisio n s , while the case was on a p p eal to us. I f Browning had been

a v a ilable to the district court, it mig ht have used slig h t l y different lang uag e in order to make clear that it was analy zing Creech’s “counsel’s c onduct as a whole to determine whether it was constitutionally a dequate.” Id. B ut it is clear that this is what the district court did.

I n its i n itial decision deny ing habeas relief, the district
court headed its analy sis of Creech’s I A C claim u n der Claim 4 as “I neffective Assistance of Counsel at the Resentencing (Claim 4, ¶

¶ 100(b)(d)(j)(o)(q))”

. E a c h of the specified subparag raphs of ¶ 1 0 0 a lleg ed instances o f I AC during Creech’s 1995 resentencing

. The c ourt the n s p e nt thirteen
pag es analy

z ing the I AC resentencing claim as a whole, considering the entirety o f the attor n e y conduct o f which Creech complained. The initial COA g ranted by the district
court was similarly encompassing

. Claim 4 h ad alleg ed I AC of trial counsel in many respects, including but n o t limited to I AC at the 1995 resentencing

. The court g ranted a narrowed COA for Claim 4, b ut included in the COA all o f the attorney conduct relevant to the 1995 resentencing . The court wrote: “[ T] he Court will certify a n appeal over the Court’s resolution o f Claim[ ]

. . . 4 ( but only to the ex tent that Creech alleg es that he was deprived o f his rig h t to effe c t i ve assistance of counsel a t the 1 9 9 5 resentencing proceeding ) . . . .”

I n i t s d e cision deny ing habeas after our remand under Martinez
, reaffirming its previous g rant of a COA for the part of Claim 4 that alleg ed I AC at the 1995 resentencing, the
court u sed m u c h of the same wording as it had usedC R E E C H V

. R I C H A R

D S O N 22

previously in g ranting the COA for this part o f Claim 4. The
court wrote, “The Cou r t reaffirms its previous g rant of a certificate of appealability w ith respect to its resolution o f the merits of th e non-defaulted a spects of Claim[ ]

. . . 4 (to the

ex tent Creech alleg es that he was d eprived of his rig ht to the

e f f ective assistance of counsel a t the 1995 resentencing proceeding ) . . . .”

I n our M a r t i n e z remand order, we instructed the district
court to consider “whether any of Cree c h ’s ineffective assistance of counsel claims previously found p rocedurally defaulted” may be heard under M artinez

. F aithful to our

r e m and order, the district c o urt discussed each of Creech’s remanded I AC contentions
, calling them “sub-claims.” I n holding that sub-claims ¶¶ 100(b), ( d), (j), ( o )(iii) and ( o )(iv)

were not procedurally defau l t e d within the meaning o f Martinez
, the district court did not consider these sub-claims independently

. Rather, it considered them to gether, in the
contex t of the entirety of Creech’s claim of I AC at resentencing

.

A. Certified Claims

1. Claim 4: I neffective Assistance of Counsel at the 1995

Resentencing

Creech arg ues under Claim 4 that his trial counse l was ineffective d

uring his 1995 sentencing proceeding for failing
to investig a te and present mitig ation evidence in a timely a nd adequate fashion, failing t o h i re a mitig ation specialist, a nd relying on an unqualified m e n t a l health ex pert. The I daho Supreme Court rejected Creech’ s I AC claims at the 1995 resentencing
, holding tha t C r eech f a iled to prove either deficient p erformance or prejudice under Str i c kland v

.C R E E C H V

. R I C H A R

D S O N 23

W ashing t o n , 466 U.S. 668 (1984). Creech V
, 966 P.2d at 17–21. I n deny ing habeas relief to Creech prior to our remand under Martinez
, the district court held that the I daho Supreme Court had reasonably concluded that Creech failed
to d emonstrate prejudice under S trickland. On remand from

our court under Martinez
, the district court reaffir m ed that holding . W e ag ree with the district court.

The two-part standard for evalu a t i n g I AC claims is set forth in Strickland

. F irst, “ the defendant must show that counsel’s representation fe l l below an o bjective standard o f reasonableness.” 466 U.S. at 688. I n o rder to minimiz e “the distorting effects of h indsig ht,” courts e v aluating I AC c laims “must indulg e a strong p resumptio n that counsel’s conduct falls within the wi d e r ang e of reasonable professional assistance.” Id. at 689. Cou n s el ’ s performance must be judg ed “ o n t h e facts of the particular case, viewed as o f the time of counsel’s conduct.” I d. a t 690. “ T h e q u estion is

w h e t h e r a n a t t o r n ey ’ s r e p r e s e n t a t i o n a m o u n t e d t o incompetence under ‘prevailing professional nor m s , ’ not whether i t deviated from best practices or most common custom.” Harrington v. R ichter
, 562 U.S. 86, 1 0 5 ( 2 011) (quoting Strickland , 466 U.S. at 690).

Second, the defendant must “a f firmatively prove prejudice” by showing that “there is a r easonable 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 p r obability is a probability sufficient to u ndermine confidence in the outcome.” Id.
at 694. “T h e b e nchmark for judg ing any claim o f ineffectiveness must be whether counsel’s conduct s o undermined the proper functioning of the adversarial process that the trial cannot be relied o n as having produced a justC R E E C H V

. R I C H A R

D S O N 24

r e s ult.” Id. at 686. W e “need not determine wheth e r counsel’s p erformance w as deficient before e x amining the prejudice suffered by

the defendant as a result of the alleg ed deficiencies” if “it is easier to dispose of an in e f f e c tiveness

c l aim on the g round of lack of sufficient prejudice.” I d

. at 697.

“Surmounting Strickland ’s hig h ba r i s never an easy task.” Padilla v. Kentucky
, 559 U.S. 356, 371 (2010). States
must be g ive n w i d e latitude in a pply ing rules of g eneral applicability such as the Strickland standard. Cf. Y arborough

v. A lvarado
, 541 U.S. 652, 6 63– 6 4 (2004). “The standards created by Strickland and § 2254(d) are both hig hly deferential, and when th e two apply in tandem, review is doubly so.” Richter
, 562 U.S. a t 1 0 5 (internal quotation

ma r k s a n d citations o mitted). Our review “is limited to the record that was before the state c o u rt that adju d i c ated the claim on the merits.” Cullen v. Pinholster
, 563 U.S. 170, 181 (2011).

W e ag ree with the district court that the I daho Supr eme Court reasonably

found a lack of prejudice under the second
prong o f Strickland

. The d i s t r i ct court noted that Creech’s

case was “far f

rom a blank slate” when it remanded for the 1995 r esentencing

. At the 1995 resentencing hearing
, J udg e Newhouse took judicial notice of the entire r e c o rd. That record included the testimony of Dr. Stoner a t the first sentencing h ea r i ng and the testimony of Dr. B rown at the 1995 resentencing hearing

. I t also included a v o l u m inous presentence report, update d a t K e h n e ’s request, that contained substantial mental health evidence. Creech’s counsel at the 1995 hearing supplemented the record wi t h character reference letters and testimony reg arding Creech’s f amily backg round and mental health h i story ; evidence of theC R E E C H V

. R I C H A R

D S O N 25

p h y s i cal a

nd verbal a

b use Creech suffered as a chil d ; evidence of a serious childhood head injury ; evidence of the
p o sitive influence of Creech’s w ife; ex pert testimony t h at there was likely a biolog ical basis f or Creech’s v i o l e n t tendencies; and evidence o f Creech’s prog ress in becoming a calmer, less ang

ry person.

The only new mitig ation evidence that was presented in the state PCR pro ceeding in 1996 was the testimony o f Asbrock, Creech’s ex -wife, and Shelley
, his d aug hter. Asbrock testified that Cree c h h ad b een the victim o f childhood sex u al abuse, b ut her testimony was v ag ue as to the details. W hen asked about a buse that occurre d i n C r eech’s childhood home, Asbrock responded, “Yes. I t h i n k a lot o f this is a big part, wh a t h a p pened somewhat in a buse a nd incest. Y ou keep—.

. . You keep g etting abused and abused, and I don’t—I think someone should have p u t a stop to it.” As h er testimony continued, Asbrock i n d icated Creech h ad been sex ually a

bused by his aunt a

nd u ncle. When asked the

name of the uncle, she said, “Aunt Thelma, in the bathtub—I can’t r emember the man’s name. B u t I know what h e d id. I t wasn’t rig ht to continue that ov er and over.” She indicated that she knew about the abuse b ecause Creech and others told her twenty -five or thirty

y ears earlier.

Shel l e y ’ s testimony w as less specific than her mother’s. She stated in her direct ex amination:

Q. Have y ou heard the same s orts of thing s about Tom’s family that we heard today f rom y our mom?

A. I ’ve heard a lot of stories.C R E E C H V

. R I C H A R

D S O N 26

Q. Okay

.

A. And on that issue, I had letters. B ut I don’t know. I lost eve r y

t h i n g

. I don’t know. You k n o w , I know it w as in Mount O rab. I don’ t know.

Q. A nd these were letters that y our dad wrote telling y ou about thing s that had happened to him as a child?

A. Yeah.

Q. And that he had been abused as a child?

A. Yeah.

Q. A nd that there had been problems in his—in his home when he was g rowing up?

A. And that’s why I could write m y d ad a nd let him know thing s that had happened. And I couldn’t even g o to nobody else.

A sbrock’s and Shelley ’s testimony was undermined b y their o wn mental healt h p roblems. Asbrock had suffered

some kind of breakdown a t the a i rp ort immediately prior to coming to c ourt to g ive her testimony
, and she was f requently incoherent while on the stand. Shelley testified that she had be en diag nosed with schiz ophrenia, depression, a nd borderline personality disorder. She became ag ita t e d a nd confused on cross-ex amination.C R E E C H V

. R I C H A R

D S O N 27

To esta b l i sh prejudice under Strickland, any additional mitig at i o n evidence presented at the PCR I AC hearing
, tog ether with the mitig ation evidence already in the record, must outweig h the ag g ravatingevidence in the record. That
ag g r avating evidence included J ensen’s brutal murder in the prison, Creech’s four prior murder convictions, and Creech’s testimony that he had committed many other murders a nd intended to kill more people if g iven the opportun ity

. W e agr e e w i t h the district court that the state court reasonably concluded that there was n o reasonable probability t h at calling A sbrock and Shelley as w itnesses at the 1995 resentencing hearing would have chang ed the outcome of that proceeding

. See
, e.g. , Pinholster
, 563 U .S. a t 202 (“Given wha t l i t t l e a d d i t i o n a l m i tig ating evidence Pinholster presented in state habeas, we cannot say that the Cal i fornia Supreme Court’s [ denial of h is I AC claim] was unreasonable.”); Bobby

v. V an Hook
, 558 U.S. 4, 12 (2009) (per curiam) (holding no prejudice where only two potential witnesses not interviewed by defense counsel w ould have added any new information o f value and the information provided only “minor additional details” about defendant’s backg round); King v. Schriro
, 537 F .3d 1062, 1074 (9th Cir. 2008) (hold ing no prejudice where d e f

e n d ant did n ot present evidence of what a more complete social and medical history investig a tion would have revealed).

As noted above, Creech had soug ht to “bolster” hi s I AC resentencing claim by introducin g in the district court evidence that had never b e e n presented to the state c ourt. The district court held that an evidentiary hearing on this proffered ne w e v idence was precluded b y 28 U .S.C. § 2254(e)(2). I n the alternative, the court held, further, that i f it were to ig n ore the limitation of evidentiary hearing s contained in § 2254(e)(2) and were to consider o n the meritsC R E E C H V

. R I C H A R

D S O N 28

the evidence not presented to the sta t e P CR court, it would nonetheless deny r eli e f

. I nter a lia
, the court wrote, “A neurolog ist’s opinion t h at C reech has brain damag e may be

more specific than Dr. B rown’s testimony
, but it would have provided only a modest counterweig ht to the heavy
ag g r avating factors . . . .”

W e hold that the district court was correct in denying relief on C r e e ch’s I A C resentencing claim under Claim 4. W e hold, further, under § 2254(e )( 2 ) t hat the district court

was correct in d eclining to hold an evidentiary hearing on the

new ev i d e n c e that Creech soug ht to introduce to bolster his I AC resentencing

claim.

2. Martinez Remand: F ive Alleg edly Procedurally Defaulted Sub-claims

a. Martinez

I n M artine z , the Supreme Court announced an equitable

ex c e ption to the long standing r ule of Co l e man v. Thompson that ineffective assistance of PCR counsel cannot establish cause to overcome a procedural default. The Court held:

W h ere, under stat e l aw, c laims of ineffective assistance of trial counsel must be raised in an i n i t i a l

- r e v i e w c o l l a t e r a l p r o c e e d i n g , a procedural default will not bar a federal habeas court from h earing a substantial claim of ineffective a ssistance at trial if
, in the initial-review collateral proceeding
, there was

no counsel or counsel in that p roceeding was ineffective.C R E E C H V

. R I C H A R

D S O N 29

Martinez
, 5 6 6 U.S. a t 17. The Court refined the Martinez inquiry in Trevino v. T

h a l er , 569 U.S. 413 (2013). Under Martinez
, a federal habeas cour t may find cause to ex cuse a procedural default where:

(1) the underlying ineffective assistance o f
tr i a l counsel claim is “substantial”; (2) the petitioner was not represent e d or h ad i n e f f e c t i v e c o u n s e l d u r i n g t h e P C R proceeding ; (3) the state PCR p roceeding was the initial review p roceeding ; 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 a ll four re q uirements, id.
, but only the first and second requirements are at issue here. W ith respect to the first requirement, a p e t i tioner must “demonstrate that the underlying [ I AC] c laim 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
, 5 37 U.S. 32 2 (2 003)). “Thus, there
must b e a substantial showing o f a ‘ re a sonable probability that, but for c ounsel’s unprofessional errors, the result of the proceeding would h av e b een different.’” Runningeagle
, 825 F .3d at 982 (quoting Stric kl and
, 466 U.S. at 6 94). T o

s atisfy the second requirement, the petitioner must demonstrate that PCR counsel “was ineffect i v e u nder the standards of Strickland ,” w hich requires a petitioner to “show
not only that PCR c o unsel performed deficiently
, but also that

. . . ‘there was a reasonable probability that, absent the deficient p erformance, the r e s u lt of the post-convictionC R E E C H V

. R I C H A R

D S O N 30

proceeding s would have been different.’” Martinez
, 5 6 6 U.S.
at 14; Runningeagle
, 825 F .3d at 982 (quotin g Pi z zuto v

. Ramirez , 783 F .3d 1171, 1178 (9th Cir. 2015)).

I n practical effect, the prejudice analy sis under bot h t he f irst and second Martinez requirements is the same. U n d e r both requirements, the required analy sis is the prejudice
prong o f Strickland : T h ere must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have b e e n different.” Strickland
, 466 U.S.
at 694; see Runningeagle
, 825 F

. 3d at 982 (reciting the Strickland prejudice standard u nder both the first and second Martinez requirements); cf. Detrich v. R yan , 740 F .3d 1237, 1245–46 (9 t h C ir. 2013) (en banc) (plurality opinion) (interpreting the first and s e cond Martinez requirements differently

).

Pursuant to our remand under Martinez
, the district court considered six sub-claims of Claim 4, a l l of which alleg ed I AC at the 1995 resentencing proceeding

. Creech appeals its decision as to five of those sub-clai m s

. A t t he time o f the district court’s decision a fter our Martinez remand, the court

c o uld consider new evidence supporting a claim of I AC b y PCR counsel in determining whether a petitioner satisfies the requirem e n ts of Martinez without running afoul o f § 2254(e)(2) and Pinholster

. See Dickens
, 740 F .3d at 1320. After we heard oral a

rg u ment, however, the Supreme Court decided Shinn v. R amirez
, 142 S. C t

. 1 7 18, 1734 (2022),
g reatly restr i cting the c ircumstances in which a federal habeas co u

r t d e c iding Martinez claims may c onsider evidence bey ond that already

contained in the state court record.C R E E C H V

. R I C H A R

D S O N 31

b. Sub-claims ¶¶ 100(b), (d), (j), ( o )(iii) and ( o )(iv)

All o f the sub-claims included in the district court’s COA

are addressed to I AC at C r e e c h’s 1995 resentencing

. Subclaim ¶ 100(b) alleg es that po st-conviction counsel failed to conduct an adequate in v es t ig ation of matters in mitig ation, including Creech’s mental health and that of h is family

. Subclaim ¶ 100(d) alleg es failure to retain qualified mental health

ex p erts to address issues of Creech’s mental heal t h

. Subclaim ¶ 100(j) alleg es failure to investig ate Creech’s m ental health issues including the effect of h ead injuries. Sub-claim ¶ 100( o )(iii) alleg es f

a ilure to present mitig ating evidence o f the m ental condition of Creech’s daug hter, which could support claims of org a

n i c c auses for Creech’s ag g ressive behavior. F inally
, s u b-claim ¶ 100( o )(iv) alleg es f ailure 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 ex hausted in, t h e state c ourt a s part of Creech’s I AC claim under Claim 4 that his counsel had b een ineffective at his 1 995 r ese n t e n cing

. Prior to the Su p r e me Court’s decision in Ramirez
, a c laim previously presented to a state court could become a n e w unex hausted (and procedurally defaulted) claim if new evidence presented
to the district court under Marti n ez e ither “fundamentally alter[ ed] the leg al claim already considered by the state courts” or “place[ d ] the case in a sig nificantly diff e re n t a nd strong er evidentiary posture than it was when the state courts considered it.” Dickens
, 7 40 F .3d at 1318 (citations omitted) (first quoting Vasquez v. Hillery
, 4 74 U.S. 254, 260 ( 1 986); and then q

uoting Aiken v. S

p a l d i ng , 841 F .2d 881, 883 (9th Cir. 1988)). The district court recog niz ed that, if a previously

ex h a u s ted claim was supplemented on federal habeas with sufficient new supporting evidence, the clai m c o u ld beC R E E C H V

. R I C H A R

D S O N 32

t ransformed into a new, unex hausted, and procedural l y defaulted claim.

As recounted above, the district court considered all of the proffered new evidence an d held that it was insufficient to transform into a new I AC claim t h e p a r t of Claim 4 that alleg ed I AC d

uring Creech’ s 1995 resentencing

. The court held t h a t sub-claims ¶¶ 100(b), (d), ( j), ( o )(iii), and ( o )(iv)

were therefore not p rocedurally defaulted new claims and that Martinez did not apply

.

Even in the absence o f Ramirez
, we wou ld h ave ag reed with the district court. Most of the n ew evidence introduced

on federal h abeas review i n support o f Creech’s arg ument that h e suffers from an org anic disorder was duplicati v e o f

ev i d e n c e i ntroduced d uring the 1995 resentencing

. Dr. B rown had testified at Creech’s 1 9 9 5 resentencing hearing that it was hig hly unusual that C r e e ch and his two brothers were all murderers, a nd that ther e was “probably a biolog ical contribution” to Creech’s behavior. Dr. Stoner h ad testified a t Creech’s orig inal sentencing hearing that Creech’s performance on tests “ strong ly sug g est[ ed]

. . . an o rg anic brain disorder.” Considering the m itig ation evidence as a

w h o l e, see B rowning
, 8 75 F

. 3d at 471, the district cou r t correctly concluded,

The evidence that Petitioner bring s forward in this Court, althoug h more specific, adds little substance to the e vidence that the state courts considered when adjudicating Petitioner’s mitig ation-based I ATC claims. The evidence

s u b m i tted f

or the first time in this Court simply does not substantially i mprove the evidentiary

posture of those claims.C R E E C H V

. R I C H A R

D S O N 33

Under Ramirez
, w e r ea c h the same result. B ecause we cannot c onsi d e r the evidence p resented for the first time to the district court, Creech’s Martinez claim necessarily fails.

B

. Uncertified Claims

Creech seeks a CO A f

o r four uncertified claims. F o r a COA to issue, Creech must “ sho[ w] that reasonable jurists could debate whether (or, for that matter, ag ree t h at) the petition s h o u l d have been resolved in a different manner o r that the issues prese n t e d were ‘ adequate to deserve
encourag ement to proceed further.’” Miller-El
, 537 U.S.

a t 3 36 (alteration in orig inal) (quoting Slack v. McDaniel
, 529 U.S. 473, 484 (2000)).

1. Summary

Denial of Reconsideration

Creech seeks a COA on his claim that t h e district court erred in summarily deny ing his motion for reconsideration o f its denial o f his second habeas petition. I n h i s m otion for reconsideration, Creech soug ht to present additional mitig ating evidence bey ond the new evidence h e had already presented to the district co u rt in connection with h is second petition. I n deny ing his motion f or r econs i d e r at ion, the district court held, inter alia
, that even if the court were to consider the new evidence presen t e d i n connection with the motion for r econsideration as if it were part o f Creech’s initial Martinez proceeding
, there was no prejudice. W e deny

a COA. Under Ramirez
, w e may not con s i d e r the evidence C r e e c h s u b m i t t e d i n s u p p o r t o f h i s m o t i o n f o r

recons i d e ration. He therefore cannot d emonstrate prejudice

a s a r esult of PCR counsel’s performance as required b y Martinez

.C R E E C H V

. R I C H A R

D S O N 34

2. W ithdrawal of Guilty Plea

Creech seeks a COA for h is claim that the I daho Supreme Court v iolated the Due Process Clause by refusing to allow him to withdraw his g uilty p lea prior to his first resentencing

. The district court denied relief on this claim, correctly concluding that Creech’s a r g u ment was, in effect, that the I daho Supreme Court had inc o r rectly decided a question o f

s t ate law. See Creech V
, 966 P.2d at 21–22. T h e I d a h o C o urt’s construction of its own law was not “an obvi o u s subterfug e to evade the consideration of a federal issue,” a nd

we a re bound by its h olding that Creech’s with d r a w al claim is barred b y state preclusion law. See Pelti e r v. W right
, 15 F .3d 860, 8 62 (9th Cir. 1994). We theref o r e d e cline to g rant a COA for this claim.

3. Magwood

Claims

Creech seeks a COA for multiple claims a ttacking his
g uilty plea. He refers to these claims as “ Magwood claims,” i nvoking the Supreme Court’s d ecision in Magwood v. Patterson
, 561 U.S. 320 (2010). T h e se claims were

ex h austed during his second PCR proceeding in state court and were p resented to the d istrict court in both his first a nd

s e c o nd habeas petitions. W hen Creech raised them in his second habeas petition, the district court rejected these c laims

as second or successive under 28 U.S.C. § 2244(b). After the district court’s decision, the Court decided Magwood
, h o l d i n g that claims in a second f

ederal habeas petition challeng ing the
sentence imposed in a n ew state court judg ment a re not second or successive, even if addressed to issu e s o t her than sentencing

. Id. a t 342.C R E E C H V

. R I C H A R

D S O N 35

Creech asks that we g rant a COA as to his g uilty pl ea claims and remand to the d istrict court to allow that court to address them on the merits in the first instance. W e g r ant the COA. We conclude, based on M agw o o d and later cases decided by our circuit, that the claims are n ot b arred a s second or successive. However, rather than remand them to the district court, we deny them ourselves.

a. Applicability

of Magwood

“W e review d e novo the district court’s determination that

a petition is ‘second o r success i v e’ under AEDPA.” Gonzalez v. S

herman
, 873 F .3d 763, 767 (9th Cir. 2017). I n Magwood
, t h e S u preme Court held that a second federal habeas petition cha l l e n ging a sentence imposed in an intervening state court judg me n t w as not a second o r successive petition. Magwood left open the question whether § 2 2 44(b) would allow a petitioner who obtains a new sentence to challeng e “not only his resulting
, n e w s e ntence, but also h is orig inal, undisturbed conv i ction.” 5 61 U.S.
at 3 42 (emphases in orig inal). W e answered that question in W entzell v. Neven
, 674 F .3d 1124 (9t h C i r. 2012). W e h eld that “the basic holding of Magwood ” must ex tend to cases

w h e r e a new petition challeng es undisturbed parts of t h e judg ment, including a petitioner’s orig inal conviction, because Magwood requires us to “inte r p r et successive applications with respect to the judg ment challeng ed a nd not with respect to the particular components of that judg ment.” 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 judg ment, a subsequent petition is not successive,’

even if its c laims could have been raised in a prior petition o r the petitioner ‘effectively c halleng es an unamended component of the jud g m e n t.’” Id. (quoting Johnson
,C R E E C H V

. R I C H A R

D S O N 36

623 F .3d at 46); see also Gonzalez
, 873 F .3d at 768–69 ( “I n short, u nder the law of this c ircuit and the Supreme Court, a petition is not second or successive when there is an amended judg ment and the petiti o n i s the f irst one following that amended judg ment.”).

Althoug h Creech III and Cre ec h IV left Creech’s conviction for J ensen’s m u r d er u ndisturbed, Creech may nonetheless c h alleng e that conviction in his second federal habeas petition because his orig inal sentence was vacated a nd

a new sentence was im p osed. Creech’s second h abeas petition is thus not second or successive as to h is g uilt-phase claims.

b. Discussion of M agwood Claims

As noted a

bove, public defender Rolf Kehne represented Creech at trial. Creech claims that, were it not for a conflict of interest in the public d efender’s office and were it n o t for Kehne’s deficient performance, he would no t h ave pleaded
g uilty a nd would instead have g one to trial on the question o f
g uilt. Specifically , Creech arg u es that his trial counsel were i neffective because (1) the A da County Public Defen d e r’ s Office (“ACPDO”) labored under a conflict of interest while representing him; (2) Kehne faile d to move to withdraw the
g uilty p lea b ased on Creech’s incompetence and f a iled to seek additional testing for brain damag e; (3) Kehne failed to investig ate the purported influence of Sheriff Chuck Palmer in Creech’s decision to plead g uilty ; and (4) Kehne failed to investig ate J ensen’s alleg edly violent history

. W e t a k e the
arg uments in turn.C R E E C H V

. R I C H A R

D S O N 37

i. Conflict of I n terest

Creech arg ues th a t t h e ACPDO labored under a conflict of interest in the pre-plea stag e. Creech arg ues that, before he

was represented by Kehne, h e was briefly represented in d i f f e r ent hearing s by four other p ublic defenders in the A C PDO. One of these attorney s, L aird Stone, a l s o represented inmate Keith Georg e, who had witnessed J ensen’s death. G e o rg e provided deposition testimony describing Creech’s a c t i ons in continuing the attack on J ensen after J ensen had stopped fig hting

. Creech ar g ues that Georg e’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 g uilty

.

The record belies C r ee ch’s arg ument. Kehne affirmatively soug ht a continuance to investig ate whether the public defender’s office had a c o nflict arising from potential witnesses ag ainst Creech w ho had b een r e p r e s e n ted by the public defender. During arg ument in th e t r i a l court, Kehne clarified that the office was represe n t i n g another inmate, presumably

Georg e, who was try ing to reach a deal and was represented by Stone. The prosecution rep r e s e n t e d to the
court that no offers of a deal had been ex tended to that other inmate, that there was nothing more than a potential conflict of interest, and that the prosecution w ould inform the public defender’s o ffice if an offer of a deal was ex tended. The trial
court determined that there w as a p otential but not an actual

c o nflict. W hen Georg e testified in h is deposition in Augu s t 1981, he was no long er represented by the public defender’s office. Creech concedes that the p rosecution did n ot cut Georg e a deal for testimony until his depo s i t i o n , when it is undisputed he was represented by a private attorney

.C R E E C H V

. R I C H A R

D S O N 38

Therefore, no actual c o nflict ex isted at the time o f Georg e’s deposition. S

e e N o guera 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 d ivision of loy alties.’” (quoting M ickens

v. Taylor
, 535 U .S. 162, 171, 172 n.5 (2002))). The state trial
court investig at e d t h e p otential conflict and found that none

ex isted. See Alberni v. McDaniel
, 458 F .3d 860, 870–71 (9th Cir. 2006). Moreover, the d etails in G eorg e’s deposition testimony w ere n ot more d amag ing than the a dmissions Creech had made to police ag ainst the a dvice of counsel prior
to his chang e of plea hearing

. Contrary to Creech’s assertion, it is apparent that his d ecision to p lead g uilty ag ainst K ehne’s advice was wholly unrela t ed t o ACPDO’s representation o f Georg e. The I daho courts did not unreasonably find Creech’s

ar gu m e n t s as to Kehne’s purported conflict of interest to be without merit. See Creech V , 966 P.2d at 21.

ii. F a ilure to Arg ue Creech’s I ncompetence or to Obtain F urther Mental Testing

Creech a rg ues t h a t Kehne should h ave moved to withdraw his g u ilty plea on the g round that Creech was incompetent to plead g uilty and that Kehne should have tes t e d C r e ech for brain damag e, which would have rais e d issues about his competence to plead g uilty

. Creech a s serts that the
assessments of Drs. Stoner and Hey rend, along with a suicide attempt the day before he appeared in court to chang e his
g uilty plea, should have indicated to Kehne that Creech was incompetent to p l e a d g uilty and that further testing was necessary

.

W e addressed Creech’s competence to plead g uilty in our decision i n 1 991. T here is nothing in the current record thatC R E E C H V

. R I C H A R

D S O N 39

leads us to chang e o u r e arlier conclusion that the record discloses “no evidence that Creech was incompetent to plead
g uilty .” Creech III

, 947 F .2d at 879–80. W hen Dr. Hey rend was asked whether Creech “did not intend to plead g uilty or did n ot recog niz e the co n s equences of that leg al act,” he replied “I really have n o information in that area.” Dr. Stoner testified that Creech, althoug h impulsive and impaired in his judg ment, could understand the proceeding s ag a inst h im a nd was capable of communicating adequately

with counsel.

Althoug h Creech, at Kehne’s insistence, reserve d t h e r i g h t to withdraw his g u ilty plea if psy cholog ical evaluations showed Creech inc ompetent to plead g uilty
, those evaluations d i d n ot sug g est that Creech w as incompetent to plead g uil t y such that Kehne should have p ursued further testing or moved
to withdraw the plea. Even assuming that Kehne should have pursued further testing
, his f ailure to d o so was not p r ejudicial, as nothing in Dr. B rown’s later testimony at the 1995 resentencing hearing sug g ests that Cr e e c h had been incompetent to p lead g uilty

. See Unit e d S t a tes v. Howard
, 381 F

. 3d 873, 877–78 (9th Cir. 2004) (“To establish that his counsel pro vided ineffective assistance in lig ht o f [ petitioner’s] a lleg ed inco mpetency , [ petitioner] must first demonstrate that he was indeed incomp e t e nt to plead
g uilty .”). The I daho courts did n o t u nreasonably conclude that Creech failed to show that Kehne should have moved to withdraw his g uilty plea on the g round that Creec h w a s incompetent. See Creech V , 966 P.2d at 21.

iii. F ailure to Communicate or Move to W ithdraw the Guilty Plea B ased on Undue I

nfluence

Creech arg ues that K ehne was ineffective f or failing to adequately communicate w ith him prior to his g uilty p lea,C R E E C H V

. R I C H A R

D S O N 40

which resulted in Kehne’s failure to c halleng e and investig ate Sheriff Chuck Palmer’s alleg ed coerc i o n o f Creech into pleading g uilty
, and for subsequently failing t o move to withdraw the g uilty plea based on Sheriff Palmer’s influence on Creech.

During Creech’s state PCR proceeding s, Palmer testified that he had an ong oing relationship with Creech dating back to the early

1970s. Palmer described the relationship as o ne of “mutual respect.” He recalle d that Creech told him e arly

on that he wanted to p lead g uilty
, and that he “encourag e [ d] [ Creech ] to d o that, if that was what he wanted to do.” H owever, Palmer insisted that he told Creech not to discuss
matters p e rt a ining to the murder with him outside the presence of counsel.

T h e record shows that Creech was motivated to p l e a d
g uilty independent of any supposed in f luence by Palmer. During the c hang e-of-plea hearing
, Kehne i n f ormed J udg e Newhouse that Creech w as pleading g u ilty ag ainst his advice, and Creech r ejected K ehne’s advice that they seek a five-day continuance before e ntering a g ui l t y p lea. During the plea colloquy
, Creech testified und e r o a th that he had d iscussed the plea with counsel, w as n ot influenced by the conduct o f others, and believed that he had a d equate time to discuss the
matt e r w ith counsel. Doe v. W oodford
, 508 F .3d 563, 571 (9th Cir. 2 007) ( “ S o l e mn d eclarations in open c ourt carry a strong presumption of verity

. ” (quoting Blackledge v. Allison
, 431 U.S. 63, 74 (1977))); U nited State s v

. Kaczynski
, 239 F .3d 1108, 1115 (9th Cir

. 2 0 0 1 ) (“W e g ive ‘substantial weig ht’ to [ a petitioner’s] in-court statements.” (quoting United States v. Mims
, 928 F .2d 310, 313 (9th Cir. 1991))).C R E E C H V

. R I C H A R

D S O N 41

Even assuming that Kehne rendered deficient performance for failing to adequatel y c ommunicate with Creech prior to the ch an ge -of-plea hearing
, Creech cannot demonstrate prejudice. The record contains ample evidence that Creech desired to plead g uilty of his own accord, a nd he has not shown that, even if K ehne had presented a motion to withdraw h is g uilty plea based o n Palmer’s alleg e d influence, the motion would have had a r e a s o nable chance of success. See United States v. Y

o n g , 926 F .3d 582, 590 (9th Cir. 2 019) (“A plea of g u ilty entered by an individual fully aware of the plea’s direct co n s e quences ‘must stand unless induced b y threats (or promises to discont i n u e improper harassment), misrepresentation (including unf ulfilled or u n fulfillable promises), or perhaps by p romises that are b y t h e ir nature improper

. . . .’” (quoting Kaczynski
, 239 F .3d at 1114)). The I daho Supreme Court did no t unreasonably conclude that C r e e c h f ailed to show I AC at the g uilt phase on the b asis o f Kehne’s purported failure to communic a t e with him. See Creech V , 966 P.2d at 19–20.

iv. F ailure to I n v estig ate J e nsen’s History

F inally
, Creech arg u es that counsel’s failure to investig ate J ensen’s p urported history of viol e n c e l ed Creech to plead
g uilty r a t h e r t h a n insist on g oing to trial on a theory of selfdefense. Even assumi n g t hat Kehne’s failure to investig ate J ensen’s history constituted de fi cient performance, Creech

ca n n o t demonstrate prejudice. W e ag ree with our determination in 1991 that it is “inconceivable

. . . , and not merely improbable” that Creech “would have been acquitted
or, if convicted, would nevertheless h ave been g iven a shorter
sentence than h e actually received” if he had g one to trial on

a theory of self-defense. Creech III
, 947 F .2d at 8 79 (quoting Evans v. Meyer
, 742 F .2d 371, 3 75 (7th Cir. 1984)). E v enC R E E C H V

. R I C H A R

D S O N 42

accepting f

or the sake of arg ument that J ensen had a violent predispositi o n , there is n o reasonable probability that this

a d d i t i o n a l e v i d e n c e w o u l d h a v e o u t w e i g h e d t h e countervailing and ag g ravating evidence. Allen v. W oodford
, 395 F. 3 d 979, 1002 (9th Cir. 2005) (no p rejudice where additional mitig ation evidence would h ave been “insufficient
to outweig h the overwhelming evidence i n a g g ravation”). The I daho courts did not u n reasonably so c onclude. See Creech V , 966 P.2d at 18–19.

4. Lackey Remand

C r e e ch seeks a COA for a claim that the duratio n o f Creech’s confinement for this murder, now forty y ears, constit u t e s cruel and unusual punishment in violation of the Ei ghth Amendment. He r elies o n J ustice Stevens’s memorandum respecting the denial o f certiorari in Lackey v. Texas
, 514 U.S. 1 0 45 (1995) (mem.). T h e d i strict court found the claim procedurally defaulted and dismissed it with prejudice. Even putting aside the procedural default, we n ote that n either the Supreme Court nor the Ninth Circuit has ever held that the duration o f a d e a th ro w inmate’s confinement prior to ex ecution amounts to cruel a nd unusual punishment. Smith v. Mahoney
, 611 F .3d 978, 998 ( 9th Cir. 2 010) (collecting cases )

. W e therefore decline to g rant 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 k n o wn that he w ould not be able to introduce new evidenc e o n federal habeas review under Martinez , he would have made different strateg ic c hoices asC R E E C H V

. R I C H A R

D S O N 43

to which arg uments to pursue in his a ppeal from the district court’s d ecision after our post- Martinez remand. He seeks to file replacement or supplemental briefs based on strateg ic choices he say s h e wou l d h a ve made had he known that he

w a s unable to make any arg uments under Martin e z

. However, C r e e c h filed such b riefs when he appealed the district court’s denial of h is second amended habeas petition. W e heard o ral arg ument based on those briefs in March 2012 shortly b efore Martinez was decided. I n those briefs, Creech made precisely the sort of strateg ic choices that he now say s he wants to make—choices as to what arg uments to make on

a p p eal when he has no viable a r g uments under Martine

z

. After w e heard arg ument in the p r e- Martinez a ppeal, we voted unanimously to den y a l l claims adversely to Creech

ex c e pt for those that became available p ost

- a r gu ment under Martinez

. Replacement o r supplemen t a l b r iefs of the sort Creech seeks to file would thus make n o difference to the
outcome. W e t herefore deny Creech’s motion to file replacement or supplemental briefs.

Conclusion

W e affirm the district court’s denial of Creech’s s e cond amended habeas petition.

AF F IRMED.