FOR PUBLICATION FILED FEB 24 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
THOMAS EUGENE CREECH, No. 24-1000 D.C. No. Plaintiff - Appellant, 1:24-cv-00066-AKB District of Idaho, v. Boise IDAHO COMMISSION OF PARDONS OPINION AND PAROLE and JAN M BENNETTS, Ada County Prosecuting Attorney, in her official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the District of Idaho Amanda K. Brailsford, District Judge, Presiding
Argued and Submitted February 24, 2024 San Francisco, California
Before: William A. Fletcher, Jay S. Bybee, and Morgan Christen, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Thomas Eugene Creech is on death row for the 1981
murder of David Dale Jensen. In 2023, the State of Idaho granted Creech a
commutation hearing before the Commission of Pardons and Parole (the
“Commission”), which was held in early 2024. The Commission ultimately denied the petition for commutation, and Creech’s execution is now scheduled for
February 28, 2024. Creech filed a § 1983 action in federal court, alleging various
due process violations over the course of the commutation proceedings and seeking
a preliminary injunction. The district court denied his motion, and we affirm.
I. BACKGROUND
Because we have described elsewhere the factual and procedural history of
this case, see Creech v. Richardson, 59 F.4th 372, 376–82 (9th Cir. 2023), we recite
only those facts most relevant to Creech’s commutation-related arguments now
before us. In 1981, while serving two life sentences for murders committed in Idaho,
and following convictions for additional murders committed in California and
Oregon, Creech killed fellow inmate David Dale Jensen, who was disabled. See id.
at 376–77; Arave v. Creech (“Creech IV”), 507 U.S. 463, 466 (1993). In relevant
part, Jensen attacked Creech with a battery-filled sock. State v. Creech (“Creech V”),
966 P.2d 1, 5 (Idaho 1998). Creech took the weapon from Jensen. Jensen later
returned, wielding a toothbrush with a razor blade fastened to it. Creech beat Jensen
with the sock, ultimately killing him. Id. Creech pleaded guilty. At his initial
sentencing in 1982, Creech testified that, “through an intermediary, [he] provided
Jensen with makeshift weapons and then arranged for Jensen to attack him, in order
to create an excuse for the killing.” Creech IV, 507 U.S. at 466. Although the judge
at Creech’s original sentencing concluded that “Creech did not instigate the fight
2 with the victim,” id. at 467, the same judge later determined at a resentencing in
1995 that the murder was “planned and executed by Creech,” Creech V, 966 P.2d at
7. On October 16, 2023, an Idaho state court issued a death warrant for Creech’s
execution, but the warrant was stayed pending Creech’s petition for commutation to
life without parole.
The Idaho Commission of Pardons and Parole possesses the exclusive power
to grant commutations and pardons, but “only as provided by statute . . . .” Idaho
Const. art. IV, § 7. The Commission is comprised of seven Commissioners. See
Idaho Code § 20-1002(1). Except in certain cases not relevant here, “[a]ny decision
of the full Commission requires a majority vote of four (4) Commissioners.” IDAPA
§ 50.01.01.200.08.a. Idaho law further requires recusal in certain cases, see id.
§ 50.01.01.200.07, but it does not supply a tie-breaking method or mechanisms for
the appointment of an interim Commissioner in the event of a recusal.
In the case of capital offenses, the Commission may issue a pardon or
commutation “only after first presenting a recommendation to the governor.” Idaho
Code § 20-1016(2). If the Governor approves the recommendation within thirty
days, “the commission’s pardon or commutation shall issue.” Id. If the Governor
rejects the recommendation or fails to act upon it within thirty days, “no pardon or
commutation shall issue from the commission, and the commission’s
recommendation shall be of no force or effect.” Id.
3 The Commission ultimately denied Creech’s commutation petition in a 3-3
vote, with one commissioner recused. Creech filed an action under 42 U.S.C.
§ 1983, alleging various violations of due process by the Commission and the Ada
County Prosecuting Attorney’s Office (“ACPA”). The district court denied Creech’s
motion for a preliminary injunction. Creech timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have appellate jurisdiction to review the denial of a preliminary injunction
under 28 U.S.C. § 1292(a)(1). We review the denial of a preliminary injunction for
abuse of discretion, but we review de novo the underlying issues of law. Cal.
Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 475 (9th Cir.
2022), cert. denied, 143 S. Ct. 1749 (2023).
“The appropriate legal standard to analyze a preliminary injunction motion
requires a district court to determine whether a movant has established that (1) he is
likely to succeed on the merits of his claim, (2) he is likely to suffer irreparable harm
absent the preliminary injunction, (3) the balance of equities tips in his favor, and
(4) a preliminary injunction is in the public interest.” Baird v. Bonta, 81 F.4th 1036,
1040 (9th Cir. 2023); see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). We focus here on the “likelihood of success” element, which is the most
important factor. See Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019).
III. ANALYSIS
4 Our review of state commutation proceedings is limited. See Wilson v. U.S.
Dist. Ct. for N. Dist. of Cal., 161 F.3d 1185, 1186 (9th Cir. 1998). “[P]risoners have
no liberty interest in clemency proceedings because the decision to grant or deny
clemency rests wholly in the discretion of the executive.” Burnsworth v. Gunderson,
179 F.3d 771, 775 (9th Cir. 1999). If a state provides a commutation proceeding, the
Due Process Clause of the Fourteenth Amendment requires only “minimal
procedural safeguards . . . .” Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289
(1998) (O’Connor, J., concurring in part and concurring in the judgment);1 see also
id. at 292 (Stevens, J., concurring in part and dissenting in part) (“There are valid
reasons for concluding that even if due process is required in clemency proceedings,
only the most basic elements of fair procedure are required.”); Woratzeck v. Ariz. Bd.
of Exec. Clemency, 117 F.3d 400, 404 (9th Cir. 1997) (“[T]he due process that the
Constitution requires for a clemency hearing is quite limited.”).
The precise contours of our review of a commutation proceeding are unclear.
At the least, a procedural due process violation exists if “the clemency proceeding’s
outcome is wholly arbitrary . . . .” Schad v. Brewer, 732 F.3d 946, 947 (9th Cir. 2013)
1 Justice O’Connor’s concurring opinion, joined by a plurality of justices, constitutes the Court’s holding in light of Justice Stevens’ partial concurrence. See Marks v. United States, 430 U.S. 188, 193 (1977); see also, e.g., Barwick v. Governor of Fla., 66 F.4th 896, 902 (11th Cir.) (per curiam) (“Justice O’Connor’s concurring opinion provides the holding in Woodard.”), cert. denied sub nom. Barwick v. Desantis, 143 S. Ct. 2452 (2023). 5 (per curiam). “Judicial intervention might, for example, be warranted in the face of
a scheme whereby a state official flipped a coin to determine whether to grant
clemency, or in a case where the State arbitrarily denied a prisoner any access to its
clemency process.” Woodard, 523 U.S. at 289 (O’Connor, J., concurring in part and
concurring in the judgment). We have assumed without deciding that “bribery,
personal or political animosity, or the deliberate fabrication of false evidence” may
give rise to a commutation-related due process claim. Anderson v. Davis, 279 F.3d
674, 676 (9th Cir. 2002) (citation omitted). In the absence of such arbitrariness or
invidious misconduct, “notice of the hearing,” Woodard, 523 U.S. at 290 (O’Connor,
J., concurring in part and concurring in the judgment), “notice of the issues to be
considered,” Wilson, 161 F.3d at 1187, and “an opportunity to participate in a[] [pre-
hearing] interview,” Woodard, 523 U.S. at 290 (O’Connor, J., concurring in part and
concurring in the judgment), generally satisfy the demands of the Due Process
Clause.
Further, even if we found an irregularity, there is some uncertainty as to the
proper harmlessness standard to apply in review of state commutation proceedings.
Cf. Washington v. Recuenco, 548 U.S. 212, 218 (2006) (noting the general
presumption that harmless-error analysis applies to constitutional violations). But
we will afford Creech the benefit of Chapman v. California’s generous standard, and
we therefore assume without deciding that the State bears the burden of
6 demonstrating that any error is “harmless beyond a reasonable doubt.” 386 U.S. 18,
24 (1967).
Applying these standards, we reject all of Creech’s due process arguments.
1. We first consider Creech’s argument that he was not given adequate
notice of the issues to be considered by the Commission and the evidence to be
presented at the commutation hearing. Neither we nor the Supreme Court have read
the Due Process Clause to require advance notice of the evidence to be presented at
a commutation hearing, and Idaho law does not confer a right to receive such notice.
Creech received notice of the hearing itself. See Woodard, 523 U.S. at 290
(O’Connor, J., concurring in part and concurring in the judgment). And Creech was
not misled as to the issues that would be considered by the Commission. See Wilson,
161 F.3d at 1187. The State gave Creech considerable information about the logistics
and substance of his hearing well in advance thereof. The Commission’s Executive
Director met with Creech’s counsel three times before the hearing to discuss the
agenda and types of evidence that would be presented. More than three weeks before
the hearing, Creech received from the State a copy of the investigation packet that
the Commission would be reviewing. Although Creech may not have known all of
the specific evidence that would be presented during his commutation hearing—
such as evidence concerning the Daniel Walker murder and the introduction of a
7 picture of a sock labeled “Creech,” which are discussed below—the State satisfied
the minimal notice requirements contemplated in Woodard and Wilson.
2. We next reject Creech’s contention that the Due Process Clause entitled
him to the appointment of a replacement commissioner when one Commissioner
recused himself. Idaho law does not expressly authorize the appointment of a
replacement commissioner in the event of a recusal. This is far from “wholly
arbitrary,” Schad, 732 F.3d at 947, and Creech has received more than the minimum
process he was due under the U.S. Constitution, see Woodard, 523 U.S. at 290
(O’Connor, J., concurring in part and concurring in the judgment), so he has failed
to make a cognizable procedural due process claim. And we decline to speculate
that the presence of an additional commissioner would have changed the outcome.
Cf. Brown v. Davenport, 596 U.S. 118, 133 (2022) (explaining that “set[ting] aside
a conviction based on nothing more than speculation that the defendant was
prejudiced . . . would be to give short shrift to the State’s sovereign interes[t] in its
final judgment” (citation and quotation marks omitted) (final alteration in original)).
3. We disagree that ACPA violated Creech’s due process rights by
suggesting to the Commission that Creech “committed the murder [of Daniel
Walker] and got away with it.” Although we will not review the substantive merits
of the Commission’s commutation proceeding, we will assume that we may review
Creech’s claim that fabricated evidence was deliberately introduced by ACPA. See
8 Anderson, 279 F.3d at 676. The prosecutor’s statements that Creech had been
identified as Walker’s killer are not entirely consistent with the San Bernardino
Sheriff’s Office press release about the Walker investigation released on January 24,
2024, shortly after the commutation proceeding. It appears2 that the prosecutor told
the Commission that Creech had been “positively identified as the murderer,”
although the press release identified Creech as only a “suspect.” The press release
also stated, however, that “[d]etectives were able to corroborate intimate details from
statements Creech made regarding Daniel’s murder.”
ACPA’s slide does unequivocally state that “Thomas Creech Murdered Daniel
Walker.” Taken alone, that slide might have been misleading by overstating the level
of certainty as to Creech’s involvement. But it appears from the hearing minutes
that the prosecutor correctly noted that Creech had not been tried for, nor convicted
of, Walker’s murder, so the prosecutor’s statements did not mislead the Commission
into assuming that Creech had been found responsible in a formal, legal sense.
We are also persuaded that correcting any purported violation would not
change the Commission’s vote to deny Creech commutation. Creech’s alleged
violations do not call into doubt the stated rationales for the Commissioners’ votes.
The Commissioners who voted to deny commutation reasoned that Creech is not
2 Because there is no transcript or recording of the hearing, we rely primarily on the meeting minutes attached as an exhibit to the parties’ filings. 9 “worthy of grace or mercy” for several reasons, including “the coldblooded nature
of David Dale Jensen’s murder,” as well as Creech’s “unwilling[ness] to completely
disclose the number of people he has killed.” The Commissioners further opined
“that the Jensen family would not receive justice if Mr. Creech received clemency,
and above all else that they deserve closure in this case.” Overwhelming evidence
supports those conclusions.
It is true that the Commissioners who voted against commutation noted “the
sheer number of victims that Mr. Creech has created over his lifetime” and that
“Mr. Creech was not interested in telling the truth about his additional crimes.” But
even taking Daniel Walker’s murder out of the equation would not materially change
the record’s support for both of those observations. The prosecutor alleged at the
hearing that Creech had killed eleven people, including Walker. Creech agreed that
he had killed at least nine people, but he claimed that he had never heard of one of
the names and did not kill Dwayne DiCicco. The Commission then asked if Creech
could settle “on at least ten people[] that he killed,” to which Creech replied, “no.”
Contra Creech IV, 507 U.S. at 465 (“Creech has admitted to killing or participating
in the killing of at least 26 people. The bodies of 11 of his victims—who were shot,
stabbed, beaten, or strangled to death—have been recovered in seven States.”).
Even if the Commission had not been presented with any information
regarding the status of the Walker investigation, it would have still had ample
10 evidence that Creech had killed many people, been implicated or suspected in other
deaths, and been dishonest about his involvement in the death of DiCicco. Creech
had previously confessed to killing DiCicco, even going so far as contact DiCicco’s
mother several times.
4. We also reject Creech’s argument that ACPA violated his due process
rights by introducing misleading or fabricated evidence when it displayed a slide of
a sock labeled with Creech’s name. In 1995, the sentencing judge found “beyond a
reasonable doubt . . . . [that] [a]ll the weapons which were used in this murder were
made by Tom Creech. Jensen was egged on to attack Creech so the justification of
self defense could be used. . . . Jensen approached Creech holding a weapon made
up of batteries in a sock. The sock was later determined to be Creech’s.” Findings
of the Court in Considering the Death Penalty Under Section 19-2515, Idaho Code,
at 3–4, State v. Creech, No. HCR-10252 (Idaho Dist. Ct. Apr. 17, 1995) (emphasis
added).3 The question of the authenticity of the sock in the photograph and its
probative value arose because Creech contended at the Commission’s hearing that
his remorse and rehabilitation favored commutation. In support, he claimed that he
had accepted responsibility for his offenses. ACPA responded by pointing to a pre-
hearing statement that Creech gave to investigators, where Creech contradicted the
3 The state trial court’s findings are available as an exhibit at Second Petition for Writ of Habeas Corpus, Creech v. Pasket, No. 99-CV-00224 (D. Idaho Mar. 24, 2005), ECF No. 131-1. 11 sentencing judge’s 1995 factual finding that the murder weapon was his by stating
that it belonged to another inmate. ACPA introduced the slide with the labeled sock
to refute Creech’s pre-hearing assertion that the murder weapon never belonged to
him. In a post-hearing declaration provided to the Commission, Creech’s attorney
stated that the prosecutor falsely told the Commission during the hearing that the
sock bearing Creech’s name was the murder weapon. The detailed notes of the
hearing describe no such statement by the prosecutor. The minutes state, instead,
that in her closing argument to the Commission, the prosecutor “displayed a
photograph of the matching sock that was found in Mr. Creech’s cell. The name on
the sock is ‘Creech.’” Creech did not address at the hearing the sentencing judge’s
1995 factual finding that the murder weapon was his.
Even if we credit Creech’s attorney’s post-hearing declaration that the
prosecutor falsely told the Commission that the sock bearing Creech’s name was the
murder weapon, there are other reasons why any such due process violation was
harmless beyond a reasonable doubt. The Commissioners who voted to deny
commutation did not mention the sock, nor did they even discuss Creech’s
unwillingness to accept the 1995 factual findings that the murder weapon belonged
to him. As explained above, the Commissioners who voted to deny commutation
focused on the reprehensible nature of Jensen’s murder without reference to whether
Creech had provoked Jensen’s initial attack. The Commissioners were also
12 concerned with both Creech’s lack of candor about the number of people he had
murdered and justice for Jensen’s family. Overwhelming evidence supports those
reasons.
Bolstering our conclusion as to harmlessness, the Commissioners were
unanimous that Creech’s conduct—including any evidence of his post-offense
rehabilitation—would not entitle him to mercy. The three Commissioners who voted
to recommend commutation were explicit that their “decision was not based on any
doubt or question about Mr. Creech’s guilt or the horrific nature of his crime.”
Indeed, their reasoning was not “based on the actions and conduct of Mr. Creech” at
all. Instead, their vote reflected “the time that had elapsed since Mr. Creech
committed this horrific crime,” and that the sentencing judge and former Ada County
deputy prosecutor “no longer believe that a sentence of death is appropriate . . . .” It
strains credulity to suppose that the reference to the matching sock made the
difference in the Commission’s denial of commutation.
5. Finally, we disagree with Creech’s argument that the Commission
violated his due process rights when it failed to pause the proceedings after the
hearing based on his complaints of unfairness. Creech raised both the Walker and
sock issues to the Commission after the hearing. The Commissioners unanimously
rejected Creech’s request to defer proceedings pending further factfinding,
suggesting that the Commissioners did not consider either issue relevant to the denial
13 of commutation. The Commission had no obligation to consider Creech’s request
(which it did), let alone grant it.
IV. CONCLUSION
Creech has failed to establish a likelihood of success on the merits, and we
find no legal or clear factual error in the district court’s evaluation of the remaining
preliminary injunction factors. See Cal. Chamber of Com., 29 F.4th at 475. We
dismiss as moot Creech’s motion for a stay pending appeal.
AFFIRMED.