When is New Evidence of IAC No Ground for Habeas?

The United States Court of Appeals for the Ninth Circuit, in Pasadena, recently issued a ruling in Thomas E. Creech v. Tim Ricardson, Warden, that should be kept in mind for anyone filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal court based on “new evidence” of ineffective assistance of counsel (IAC).

In 1981, Mr. Creech was serving two life sentences for four convictions for first degree murder in Idaho (two in 1976, one in 1979 and one in 1980). While in prison, he beat his cellmate to death. After pleading guilty, he was sentenced to death in Idaho state court.

The fellow inmate was 23 years old, handicapped and mentally impaired. Creech beat him with a sock filled with batteries until his head cracked open and blood spurted everywhere, covering the walls and the floor of the cell.

Forty-two years later, he remains alive and recently challenged his plea, which was against the advice of his attorney. After persisting in stating he wanted to plead guilty, the judge allowed Mr. Creech to enter a guilty plea.

After the plea, a sentencing hearing was held and in preparation for the hearing, both the prosecution and the defense presented expert mental health testimony. After considering such testimony, the judge sentenced Mr. Creech to death.

Mr. Creech appealed his sentence on many grounds over the years and in appealing to the Ninth Circuit, claimed that he received ineffective assistance of counsel when resentenced in 1995 by not presenting a medical report that opined Mr. Creech “may have suffered from an organic brain disorder” and that his attorney was ineffective by not requesting an evidentiary hearing on whether this was so in resentencing.

The district court, in evaluating Mr. Creech’s IAC claim, acknowledged that, “[o]ver the course of two sentencing hearings and the state postconviction proceedings, it been well-established that Creech might, indeed, have some . . . biological or genetic component that contributed to his antisocial and violent behavior . . .”

The court also stated that “[t]he evidence submitted for the first time in this Court simply does not substantially improve the evidentiary posture of those claims” because the sub-claims had not been transformed into procedurally defaulted new claims.

In other words, the new IAC claim concerned what the attorney did not do on evidence that was procedurally barred anyways.

The Ninth Circuit affirmed the district court’s ruling and found further that even if such an evidentiary hearing had taken place, Mr. Creech could not “affirmatively prove prejudice” by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington (1984) 466 U.S. at 693 – 694.

“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

Consequently, a court does not need to “determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies” if “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice.” Id. at 697.

Indeed, as Padilla v. Kentucky (2010) 559 U.S. 356, 371 stated, “[s]urmounting Strickland’s high bar is never an easy task. The Ninth Circuit agreed with the Idaho Supreme Court and the district court that there was a lack of prejudice to Mr. Creech.

The remainder of the Ninth Circuit opinion addresses Mr. Creech’s claims that the district court erred by not issuing a certificate of appeal (COA) on other claims that were procedurally barred because he had appealed on such grounds in the past.

One of such claims was even that he would not have pleaded guilty but for his public defender’s deficient performance, but the court pointed out that when Mr. Creech asked to plead guilty, his public defender strongly urged on the record that Mr. Creech not do so. Then over his attorney’s objection, he did so. It seems inconsistent now for Mr. Creech to claim his attorney was deficient when that attorney stated on the record that he was opposed to such a plea and despite this, Mr. Creech insisted upon pleading guilty. The Ninth Circuit seemed troubled by such a claim of IAC given such facts.

For more information about a petition for a writ of habeas corpus, please click on the following articles: