Creech v. Idaho Commission of Pardons & Parole

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THOMAS EUGENE CREECH, Plaintiff, v. IDAHO COMMISSION OF PARDONS AND PAROLE and JAN BENNETTS, Ada County Prosecuting Attorney, in her official capacity, Defendants.

No. 1:24-cv-00066-AKB

United States District Court, D. Idaho

July 8, 2024

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR RECUSAL

Amanda K. Brailsford U.S. District Court Judge

Pending before the Court is Plaintiff Thomas Eugene Creech's motion for recusal of the undersigned pursuant to 28 U.S.C § 455(a) and the Due Process Clause (Dkt. 36). Having reviewed the record, I find that the facts and legal arguments are adequately presented and that oral argument would not significantly aid my decision-making process, and I decide the motion on the briefs. Dist. Idaho Loc. Civ. R 7.1(d)(1)(B); see also Fed.R.Civ.P. 78(b) (“By rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings.”). For the reasons set forth below, I deny Mr. Creech's motion.

BACKGROUND

In 1995, an Idaho state district court sentenced Mr. Creech to death for murdering another inmate by beating him to death with a sock filled with batteries. After the state court issued a death warrant, the Idaho Commission of Pardons and Parole granted Mr. Creech's petition for a clemency hearing to decide whether to recommend that Idaho's Governor commute Mr. Creech's death sentence to a fixed life sentence. The Ada County Prosecutor's Office (ACPO) was designated to present on the State's behalf at the hearing.

The Commission held the clemency hearing on January 19, 2024. At that hearing, attorney Jill Longhurst of the ACPO made a presentation recommending against commutation. (Dkt. 11-1 at p. 12) (identifying Ms. Longhurst as presenter). Mr. Creech alleges that during the prosecutor's presentation, she told the Commission he was guilty of murdering Daniel Walker in 1974. (Dkt. 1 at ¶¶ 52-62). Mr. Creech asserts this statement is untrue. (Id. at ¶ 64). Further, Mr. Creech alleges that during the presentation, the prosecutor “showed the Commission a slide with an image of a sock with Mr. Creech's name” allegedly “written on it” and that by doing so, she “reveal[ed] a photo of the murder weapon for the first time.” (Id. at ¶ 164; id. at p 20, § C). Mr. Creech also alleges that on the same day of the hearing, the ACPO issued a press release stating the Walker “cold case was solved” and that Mr. Creech had murdered Walker. (Id. at ¶ 63).

On January 29, 2024, the Commission issued a decision denying commutation. On February 5, Mr. Creech filed this action under 42 U.S.C. § 1983 against the Commission and the ACPO, naming Jan Bennetts as a defendant in her official capacity as the elected Ada County Prosecuting Attorney. (Dkt. 1 at p. 1). Mr. Creech alleges his due process rights were violated during the hearing.^[1] On February 8, Mr. Creech moved for a preliminary injunction under Rule 65(a) of the Federal Rules of Civil Procedure to enjoin his execution during this case's pendency and for expedited discovery. (Dkts. 4, 10).

I denied those motions. I concluded that while “some minimal procedural safeguards apply to clemency proceedings,” a federal court is “not authorized to review the substantive merits of a clemency proceeding.” (Dkt. 18 at pp. 8-9) (quotation marks omitted). I found Mr. Creech failed to clearly show he is likely to succeed on the merits of his due process claim because the Commission provided him with more than minimal due process in conducting the hearing. (Id. at pp. 10-11). Further, I concluded that because Mr. Creech does not have a constitutional right to a clemency hearing, it necessarily follows he does not have a due process right to post-hearing proceedings including, for example, discovery regarding the clemency hearing. (Id. at p. 12).

Finally, although I declined to review the merits, I noted the hearing minutes contradict Mr. Creech's allegations that the prosecutor showed a photograph of the murder weapon; instead, the minutes state she displayed a photograph of “the matching sock” found in Mr. Creech's cell. (Id. at p. 13) (quoting Dkt. 11-1 at p. 20). I also noted that during the hearing the prosecutor discussed numerous murders which Mr. Creech allegedly committed and that the Commission's decision did not appear to have been unduly influenced either by the Walker murder or by the sock photograph because the Commission did not mention either when explaining its decision. (Id. at pp.13-14).

The Ninth Circuit affirmed my decision; the Supreme Court denied Mr. Creech's petition for a writ of certiorari; and the Idaho Department of Correction later suspended the execution because the medical team was unable to carry out the lethal injection. (Dkts. 21, 25, 26). Thereafter, both the Commission and the ACPO moved to dismiss Mr. Creech's complaint in this case under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. After the motions were fully submitted but before I ruled on them, Mr. Creech filed the instant motion to disqualify me. The basis for Mr. Creech's motion is my relationship with the Ada County Prosecuting Attorney, Ms. Bennetts.

In support of Mr. Creech's recusal motion, he filed the declaration of an investigator who attested that, while investigating me in March and April 2024, he discovered my response to the “Questionnaire for Judicial Nominees,” which I had submitted to the United States Senate Judiciary Committee in support of my nomination to be a federal district judge. (Dkt. 36-3 at ¶ 3). In that response, I disclosed that, while I was a judge on the Idaho Court of Appeals:

[A]n individual convicted of a crime in Ada County, Idaho, filed a civil action against public officials including the Ada County Prosecutor, who is a personal friend. Because the plaintiff filed the action against her individually (not in her capacity as the county prosecutor), I determined that my impartiality might reasonably be questioned and that the issue was incurable. I have searched both the Court's electronic database and publicly-available electronic databases and have been unable to locate the case's citation, although I believe the appeal was filed in 2019.

(Dkt. 36-2 at p. 22). Further, the investigator attested he discovered video footage of my January 2019 investiture at the Idaho Court of Appeals. (Dkt. 36-3 at ¶ 5). At this investiture, Ms. Bennetts spoke, and I referred to her as “my dear friend” during my comments. (Dkt. 36-4 at p. 4).

LEGAL STANDARD

Mr Creech seeks to disqualify me under the Due Process Clause and 28 U.S.C. § 455, which is the primary source of disqualification law in the federal judicial system. Mr. Creech relies on § 455(a), which provides that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The United States Supreme Court has explained the goal of § 455(a) is “to avoid even the appearance of partiality.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988) (quotation marks omitted). The standard for determining impartiality is purely objective. United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (applying “objective test”); Clemens v. U.S. Dist. Ct. for Cent. Dist. of Ca., 428 F.3d 1175, 1178 (9th Cir. 2005) (same).

The Ninth Circuit has ruled that under § 455(a), the objective inquiry for determining impartiality is whether a reasonable person with knowledge of all the facts would conclude the judge's impartiality might reasonably be questioned or would perceive a significant risk the judge would resolve the case on a basis other than the merits. Holland, 519 F.3d at 913. A reasonable person for purposes of the inquiry is a “well-informed, thoughtful observer” and not a “hypersensitive or unduly suspicious” person. Id. (quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)); see also Clemens, 428 F.3d at 1178 (stating standard and describing reasonable person's nature).

An analysis of whether § 455(a) requires disqualification “is necessarily fact-driven and may turn on subtleties in the particular case.” Holland, 519 F.3d at 913. The court must be guided by an independent examination of the unique facts and circumstances and not by a comparison to similar situations in other cases. Id. Further, “[t]he standard ‘must not be so broadly construed that it becomes, in effect presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.'” Id. (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)). When the law and the facts do not support a legitimate reason for disqualification, a judge has a “strong . . . duty to sit.” Clemens, 428 F.3d at 1179 (quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)).

Like § 455(a)'s objective standard, “the Due Process Clause may sometimes demand recusal even when a judge has no actual bias.” Rippo v. Baker, 580 U.S 285, 287 (2017) (per curiam) (quotation marks and alteration omitted). Under the Due Process Clause, “[r]ecusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Id. (quotation marks omitted). The inquiry is “not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quotation marks omitted). The Ninth Circuit has stated that this inquiry “reaches every procedure which would offer a possible temptation to the average judge to forget the burden of proof or which...