Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT CHARLES COMER, 

Petitioner-Appellant, No. 98-99003

v. D.C. No.

DORA B. SCHRIRO, Director, of  CV-94-01469-ROS

Arizona Department of OPINION Corrections,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

May 17, 2005—Pasadena, California

Filed September 13, 2006

Before: Harry Pregerson, Warren J. Ferguson, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Ferguson;

Partial Concurrence and Partial Dissent by Judge Rymer

11115
COUNSEL

Denise I. Young, Tucson, Arizona; Julie S. Hall, Tucson, Arizona, for the petitioner-appellant. 

Michael D. Kimerer, Phoenix, Arizona; Holly R. Gieszl,

Phoenix, Arizona, special counsel for petitioner-appellant. 

John Pressley Todd, Assistant Attorney General, Phoenix,

Arizona, for the respondent-appellee. 

OPINION

FERGUSON, Circuit Judge: 

Arizona death row prisoner, Robert Charles Comer

(“Comer”), appealed the District Court’s denial of his 28

U.S.C. § 2254 habeas petition challenging his conviction and

capital sentence for first degree murder, armed robbery, kidnapping, aggravated assault, sexual assault, and sexual abuse.

Before Comer’s appeal could be heard, however, the State of

COMER v. SCHRIRO 11121
Arizona (the “State”) and Comer filed motions to dismiss the

appeal because Comer expressed his desire to be executed. On

remand from this Court, the District Court held an evidentiary

hearing and found Comer to have competently and voluntarily

waived his habeas appeal right. Habeas Counsel now challenges that determination on appeal. 

We agree with the District Court that Comer competently

and voluntarily waived his habeas appeal right. By upholding

Comer’s waiver, however, we would be permitting the State

to execute Comer without any meaningful appellate review of

his previously filed federal habeas claims, which would

amount to a violation of the Eighth Amendment to the U.S.

Constitution. We therefore deny the State’s and Comer’s

motions to dismiss the appeal and proceed to review the District Court’s denial of Comer’s federal habeas petition. 

We hold that Comer’s sentence was invalid and hereby

grant the writ of habeas corpus based on the violation of

Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and

exhausted. 

I. FACTUAL AND PROCEDURAL BACKGROUND1

Crime

The facts of this case are deeply disturbing. Comer, his

companion Juneva Willis (“Willis”), and Willis’s two children arrived at the Burnt Corral campground in Apache Lake,

Arizona on February 2, 1987. The next evening, Comer

invited a nearby camper, Larry Pritchard, to dine with him

and Willis, and, after the meal, Comer shot him in the head.

It is unclear whether Pritchard died immediately from the

1The facts related to Comer’s crime, charges, and conviction are largely

taken from the Supreme Court of Arizona’s 1990 decision in this case. See

State v. Comer, 799 P.2d 333, 336-38 (Ariz. 1990). 

11122 COMER v. SCHRIRO
gunshot wound or later on. Comer later stabbed him in the

neck. Comer then removed an Emergency Medical Technician (“EMT”) badge from Pritchard’s pocket, and Willis hid

Pritchard’s body by covering it with wood. After the murder,

Comer and Willis drove to Pritchard’s campsite, where they

stole a number of Pritchard’s belongings, as well as his dog.

Comer and Willis then proceeded to the campsite of Jane

Jones and Richard Smith, campers whom they had met earlier

that day. Remembering from their earlier encounter that Jones

and Smith were in possession of a small quantity of marijuana, Comer and Willis posed as “Arizona Drug Enforcement” officers, and ordered them out of their tent at gunpoint.

Comer flashed the EMT badge and then tied up Jones and

Smith with wire and duct tape. He put them in their truck and

stole several items from their tent. 

Comer then drove Jones’s and Smith’s truck, while Willis

followed behind in his. After a short time, Willis stopped following Comer. When Jones asked to relieve herself, Comer

permitted her to do so but accompanied her into the woods

and sexually assaulted her. He then sexually assaulted her

again in front of the truck. Comer threatened to kill Smith but

Jones convinced him not to do so. Comer instead left Smith

in the woods and drove off with Jones. When the truck ran out

of gas, Comer and Jones walked back to Willis, and the three

of them then drove together, along with Willis’s two children.

During this journey, Comer shot and killed Pritchard’s dog,

and sexually abused Jones twice more. 

Jones managed to escape while Comer was fixing his truck.

She was later picked up by a passing motorist and taken to the

sheriff’s home. Smith, too, had managed to walk back to the

Burnt Corral campground and had reported the incident to the

Department of Public Safety. The police quickly apprehended

Comer and Willis. 

COMER v. SCHRIRO 11123
Charges

Comer and Willis were charged in Maricopa County with

the first degree murder and armed robbery of Pritchard and

the armed robbery, kidnapping, and aggravated assault of

Jones and Smith. In addition, Comer was charged with two

counts of sexual abuse and three counts of sexual assault of

Jones. Willis subsequently pled guilty to one count of kidnapping in exchange for agreeing to testify against Comer. The

other charges against her were dropped. 

Convictions and Sentence

Comer was absent from the courtroom throughout his 1988

state trial for capital murder. After seven days of hearing evidence, a jury found Comer guilty on all counts. 

Comer was physically present in the courtroom for the first

time on the day of his sentencing. He was shackled to a

wheelchair and, except for a cloth draped over his genitals, he

was naked. His body was slumped to one side and his head

drooped toward his shoulder. He had visible abrasions on his

body. After asking both the court deputy and a prison psychiatrist whether Comer was conscious, the state trial judge sentenced him to death for the murder of Pritchard and to

aggravated, consecutive terms of imprisonment for the other

offenses. 

On direct appeal, the Arizona Supreme Court affirmed the

convictions and sentence. Comer, 799 P.2d at 350. 

State Post-Conviction Relief

On October 24, 1991, Comer filed a petition for postconviction relief in state court challenging the constitutionality of his conviction and sentence. On November 10, 1992,

the superior court denied the petition on the ground that

Comer’s claims were largely precluded and waived. The Ari11124 COMER v. SCHRIRO
zona Supreme Court denied the petition for review on September 21, 1993, and the U.S. Supreme Court denied the

petition for certiorari on April 4, 1994.

Federal Habeas Corpus Petition

On July 19, 1994, Comer filed a federal habeas corpus petition with the District Court of Arizona. He later filed an

amended petition on March 16, 1995.2 On August 2, 1996, the

District Court found that Comer had procedurally defaulted

on all his habeas claims except Claims I, II, III(A), III(B)(1),

III(C) (in part), V(A), V(B), XIII, XX(C)(4), and XX(D),

which largely concerned errors at trial and ineffective assistance of defense counsel.3

 The District Court considered the

merits of these claims and, on November 20, 1997, denied

Comer’s habeas petition. 

Appeal to this Court 

On February 18, 1998, Comer filed a timely notice of

2While Comer’s habeas petition was pending, he filed a second petition

for state post-conviction relief in state court challenging the constitutionality of his conviction and sentence. On September 22, 1998, the state trial

court denied the petition on the ground that Comer’s claims were procedurally precluded, and on December 6, 1999, the Arizona Supreme Court

denied review. 

3Specifically, these claims were: (1) the trial court’s failure and refusal

to sever counts (Claims I and II), (2) the prosecutor’s misconduct in

repeating the use of dehumanizing epithets to characterize Comer (Claim

III(A)), (3) the prosecutor’s misconduct in using invective during closing

argument (Claim III(B)(1)), (4) the prosecutor’s misrepresentation of law

and facts during closing argument (Claim III(C)), (5) the trial court’s failure to strike two jurors for cause (Claim V(A)), (6) the trial court’s error

in impairing Comer’s exercise of peremptory challenges (Claim V(B)), (7)

the Arizona Supreme Court’s finding of “helplessness of the victim” as an

aggravating factor for sentencing (Claim XIII), (8) defense counsel’s failure to undertake an adequate mitigation investigation (Claim XX(C)(4)),

and (9) appellate counsel’s failure to raise on appeal any issue raised in

Comer’s habeas petition (Claim XX(D)). 

COMER v. SCHRIRO 11125
appeal to the Ninth Circuit challenging the District Court’s

denial of his habeas petition. This Court has jurisdiction to

hear Comer’s appeal pursuant to 28 U.S.C. § 2253. 

Intervening Motion to Dismiss Appeal

After filing his appeal, Comer sent letters to the State

Attorney General and to the state trial judge stating that he no

longer wanted his appeal to be heard and expressing his desire

to die. In light of these letters, the State moved to dismiss

Comer’s appeal contending that this Court lacked jurisdiction

to determine any aspect of the case. Comer himself also filed

a pro se motion to dismiss his appeal. Comer’s originally

appointed counsel — now Habeas Counsel — opposed both

the State’s and Comer’s motions and asked this Court to order

a procedure to determine the validity of Comer’s appeal. On

September 18, 2000, the District Court appointed Special

Counsel to represent Comer concerning his decision to end

his appeals and proceed to execution. 

Evidentiary Hearing

This Court subsequently decided to vacate the date for oral

argument on the merits of Comer’s appeal and held the

motion to dismiss Comer’s appeal in abeyance until the District Court held an evidentiary hearing on the separate questions of whether Comer was competent to terminate

representation by counsel and waive legal review and, if so,

whether his conditions of confinement rendered those decisions voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.

2000). 

Pursuant to our order, the District Court conducted an evidentiary hearing in March 2002. Following extensive discovery and a three-day hearing, the District Court found in a 90-

page opinion that Comer was competent to waive his habeas

appeal right and that his waiver was made voluntarily. Habeas

Counsel appealed the District Court’s judgment to this Court.

11126 COMER v. SCHRIRO
We delayed issuing a briefing schedule until the Supreme

Court decided Schriro v. Summerlin, 542 U.S. 348 (2004)

(holding that Ring v. Arizona, 536 U.S. 584 (2002), did not

apply retroactively to cases already final on direct review). 

II. DISCUSSION 

A. The Waiver’s Validity

1. Background

We asked the District Court to hold an evidentiary hearing

to determine whether Comer competently waived his habeas

appeal right. Pursuant to our order, the District Court suggested to both parties that a neutral expert evaluator be

appointed to assess Comer’s competency at the time he

waived his habeas appeal right, and that the parties confer and

suggest candidates. The District Court allowed both parties to

have access to every place Comer had lived while incarcerated. The parties submitted proposed findings of fact and conclusions of law, and both parties were allowed to object to

each other’s proposed findings and conclusions. The District

Court thus ostensibly undertook comprehensive steps to

ensure an adequate factual determination of Comer’s competency at the time he waived his habeas appeal right. 

The question before the District Court was whether, giving

full and fair consideration to all of the evidence, it could be

established by a preponderance of the evidence that Comer is

competent to waive further legal review of his convictions

and sentences. Specifically, we directed the District Court to

determine “whether [Comer] has capacity to appreciate his

position and make a rational choice with respect to continuing

or abandoning further litigation or on the other hand whether

he is suffering from a mental disease, disorder, or defect

which may substantially affect his capacity in the premises.”

Comer, 215 F.3d at 917 (quoting Rees v. Peyton, 384 U.S.

COMER v. SCHRIRO 11127
312, 314 (1966) (per curiam)).4

 In arriving at this determination, the District Court reviewed evaluations, reports, testimony from two psychiatrists and one psychologist, Comer’s

personal background, and other witness testimony and exhibits to conclude that Comer did not suffer from mental disease

or defect. See Comer, 230 F. Supp. 2d at 1061. 

2. Analysis

a. Competency

The District Court’s determination as to whether Comer

was competent to waive his habeas appeal right is a strictly

factual one that we accept unless clearly erroneous. Massie ex

rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001)

4As the District Court noted, the three-part Rees test to determine the

capacity of an inmate to make a waiver decision has been simplified as

follows by the Fifth Circuit in Rumbaugh v. Procunier, 753 F.2d 395, 398-

99 (5th Cir. 1985): 

(1) Is the person suffering from a mental disease or defect? 

(2) If the person is suffering from a mental disease or defect,

does that disease or defect prevent him from understanding his

legal position and the options available to him? 

(3) If the person is suffering from a mental disease or defect

which does not prevent him from understanding his legal position

and the options available to him, does the disease or defect, nevertheless, prevent him from making a rational choice among his

options? 

If the answer to the first question is no, the court need go no

further, the person is competent. If both the first and second questions are answered in the affirmative, the person is incompetent

and the third question need not be addressed. If the first question

is answered yes and the second question is answered no, the third

question is determinative; if yes, the person is incompetent, and

if no, the person is competent. 

Comer, 230 F. Supp. 2d 1016, 1036-37 (quoting Rumbaugh, 753 F.2d at

398-99); accord Lonchar v. Zant, 978 F.2d 637, 641-42 (11th Cir. 1992);

Ford v. Haley, 195 F.3d 603, 615 (11th Cir. 1999). 

11128 COMER v. SCHRIRO
(citing Demosthenes v. Baal, 495 U.S. 731, 735 (1990)). The

District Court rendered several preliminary determinations to

come to its conclusion that Comer was competent when he

waived his habeas appeal right. We analyze each preliminary

determination here briefly to assess whether or not it was

clearly erroneous. 

[1] First, the District Court determined that its own courtappointed expert, Dr. Sally Johnson, was significantly more

qualified to render a competency opinion than Habeas Counsel’s expert, Dr. Terry Krupers. Comer, 230 F. Supp. 2d at

1039. The Court based this determination on evidence as to

the experts’ qualifications, in particular on the fact that, unlike

Dr. Johnson, Dr. Krupers had never engaged in a forensic

evaluation to determine the competency of an inmate to be

executed nor previously conducted a forensic evaluation of an

inmate sentenced to death who wanted to dismiss his appeal.

Id. Moreover, the Court found Dr. Johnson’s investigation to

be thorough and her questions especially relevant. Id. at 1040.

Given the clear difference in expert qualifications between

Dr. Johnson and Dr. Krupers, as well as Dr. Johnson’s relatively superior investigation, the Court did not clearly err in

affording greater weight to Dr. Johnson’s opinions. 

[2] Second, the District Court determined that Comer did

not suffer from Major Depressive Disorder. The Court based

this determination on the accuracy of Dr. Johnson’s differential diagnoses of Comer’s various apparent depressive episodes. Specifically, with respect to Comer’s first apparent

depressive episode in May 1999, the Court found as credible

Dr. Johnson’s attempt to distinguish the differential diagnosis

of bereavement from the symptoms that Dr. Krupers attributed to a major depressive episode. See id. at 1042-43. With

respect to Comer’s second apparent depressive episode in

Spring 2001, the Court found as credible Dr. Johnson’s

attempt to distinguish the differential diagnosis of a general

medical condition from the symptoms that Dr. Krupers attributed to a second major depressive episode. See id. at 1043-

COMER v. SCHRIRO 11129
44. Finally, with respect to Comer’s apparent bouts of depression between his two purported episodes, the Court found as

credible Dr. Johnson’s explanation that Comer sought attention by narrating his feelings and that he did not deny his

symptoms of depression, as Dr. Krupers had argued. See id.

at 1047-48. Given the failure of Dr. Krupers to assess possible

differential diagnoses for Comer’s apparent depressive episodes, and the confidence with which Dr. Johnson attested to

such diagnoses, the District Court did not clearly err in concluding that Comer did not suffer from Major Depressive Disorder. 

[3] Third, the District Court determined that Comer did not

suffer from Post-Traumatic Stress Disorder (“PTSD”). The

Court based this determination on Dr. Krupers’s inability to

apply accurately the DSM-IV criteria for PTSD.5 In particular,

the Court questioned Dr. Krupers’s failure to identify credible

evidence with respect to the third group of PTSD symptoms

related to “increased arousal.” Id. at 1052. According to the

Court, Dr. Krupers needed to establish with sufficient certainty that Comer suffered from two or more of the following

symptoms related to “increased arousal”: (1) difficulty falling

or staying asleep; (2) irritability or outbursts of anger; (3) difficulty concentrating; (4) hypervigilance; and (5) exaggerated

startle response. Id. Dr. Krupers, however, merely speculated

that “most prisoners in [Comer’s] situation” would have diffi5The District Court noted that 

[a]part from some traumatic experience, the DSM-IV describes

three groups of symptoms for PTSD, and one or more of each

group must be suffered by the patient to establish a diagnosis of

PTSD. The first group of symptoms is that the patient is ‘persistently reexperienc[ing]’ the traumatic event in at least one of various specific ways[, including recurring or severe] ‘flashbacks’

and ‘nightmares’ . . . . The second group of symptoms . . . require

that a patient ‘[p]ersistent[ly] avoid[s] stimuli associated with the

trauma.’ . . . [The third group of] symptoms [requires] that the

person experiences ‘increased arousal’ not present before trauma.

Comer, 230 F. Supp. 2d at 1051-52 (citations omitted) 

11130 COMER v. SCHRIRO
culty falling asleep and failed to rebut Dr. Johnson’s and

Comer’s testimony as to factors (4) and (5). Id. While it is

unclear from the Court’s opinion just how narrowly the DSMIV criteria for PTSD are defined, the District Court did not

clearly err in dismissing as unspecific Dr. Krupers’s factual

applications of the criteria to Comer’s symptoms. 

[4] Lastly, the District Court determined that Comer did not

suffer from Segregated Housing Unit (“SHU”) syndrome. The

Court based this determination on Dr. Johnson’s and Comer’s

testimony contradicting Dr. Krupers’s findings concerning

SHU syndrome. Id. at 1057. The Court identified and

accepted the following characteristic symptoms of SHU syndrome: massive free-floating anxiety, hyperresponsiveness,

derealization, difficulty with concentration and memory, acute

confusional states, ideas of reference and persecutory idealation (paranoia), and compulsion. Id. at 1056. The Court then

affirmed Dr. Johnson’s findings that Comer did not exhibit

these symptoms at all or at least not to the level necessary to

make an adequate showing of SHU. See id. at 1057. 

Of particular importance to the District Court was Dr. Johnson’s prior work with patients in segregated housing units and

the fact that Comer’s own testimony did not corroborate Dr.

Krupers’s findings. Id. Even though Dr. Krupers was qualified to offer his opinion on the disorder, he did not have prior

experience in diagnosing or treating inmates who suffered

from SHU syndrome in the way that Dr. Johnson had.6 While

this fact alone does not render Dr. Johnson’s findings more

accurate than Dr. Krupers’s, it does make it more difficult to

find the Court’s determination that Comer did not have SHU

syndrome to be clearly erroneous, particularly since there are

no rigorous DSM-IV criteria for diagnosing SHU syndrome.

See id. at 1055. 

6Cross-examination of Dr. Krupers included the following exchange:

“Q: Doctor, do you treat inmates in prison who suffer from what you term

SHU syndrome? A: No, I don’t.” 

COMER v. SCHRIRO 11131
In sum, the District Court’s preliminary determinations are

not clearly erroneous, demonstrating that the Court did not

clearly err in determining that Comer competently waived his

habeas appeal right.

b. Voluntariness

We review de novo the District Court’s determination that

Comer voluntarily waived his habeas appeal right. See United

States v. Amano, 229 F.3d 801, 803 (9th Cir. 2000). 

We directed the District Court to determine “whether

[Comer’s] purported decision [to waive further legal review]

is voluntary” and “whether [Comer’s] conditions of confinement constitute punishment so harsh that he has been forced

to abandon a natural desire to live.” Comer, 215 F.3d at 917.

The District Court determined that Comer’s waiver was voluntary and that the conditions of his confinement “have not

had a substantial effect nor have they rendered his decision

involuntary.” Comer, 230 F. Supp. 2d at 1071. 

[5] We previously summarized the legal standard to determine voluntariness of waiver: 

The Supreme Court has held that a waiver of a petitioner’s “right to proceed” is not valid unless, among

other factors, it is “knowing, intelligent, and voluntary.” Whitmore v. Arkansas, 495 U.S. 149, 165

(1990) (emphasis added). “A waiver is voluntary if,

under the totality of circumstances, [it] was the product of a free and deliberate choice rather than coercion or improper inducement.” United States v. Doe,

155 F.3d 1070, 1074 (9th Cir. 1998). Put differently,

a decision is involuntary if it stems from coercion —

either mental or physical. See, e.g., Brady v. United

States, 397 U.S. 742, 754 (1970). Indeed, courts

have recognized that a decision to waive the right to

pursue legal remedies is involuntary if it results from

11132 COMER v. SCHRIRO
duress, including conditions of confinement. See,

e.g., Smith v. Armontrout, 812 F.2d 1050, 1058-59

(8th Cir. 1987) (reviewing for error the district

court’s determination on whether petitioner’s particular conditions of confinement rendered his decision

to waive appeals involuntary); . . . Grossclose ex rel.

Harries v. Dutton, 594 F. Supp. 949, 961 (M.D.

Tenn. 1984) (“In the judgment of this Court, the conditions of confinement inflicted on Mr. Harries are

so adverse that they have caused him to waive his

post-conviction remedies involuntarily”). 

Comer, 215 F.3d at 917-18. 

[6] From the record, it is clear that Comer’s waiver was a

“product of a free and deliberate choice.” Doe, 155 F.3d at

1074. At the evidentiary hearing, Comer clearly expressed his

willingness to withdraw his appeal in spite of the fact that

Habeas Counsel informed him that his appeal had a strong

prospect of success (“Julie [Hall] came down and said I had

some real good merits in my case and that we were in the

Ninth Circuit.”). Special Counsel fully informed Comer that

he could possibly receive a new sentence or a new trial, or

even be found not guilty, if his appeal were to be heard.7 Spe7

[Special Counsel]: You’ve heard and we’ve talked a lot about

what could happen if your habeas is considered by the appellate

courts. And I think you have said that you believe, from everything you’ve been told and everything that you’ve read, that you

have a good — good prospects for a new sentencing. Right? 

[Comer]: Yes, ma’am. 

[Special Counsel]: So that would mean — if you got a new —

another sentencing, do you understand, then, that you may not get

the death penalty? 

[Comer]: Yes, ma’am. 

[Special Counsel]: And you may even get a new trial. 

[Comer]: Yes. 

COMER v. SCHRIRO 11133
cial Counsel further informed Comer that it would be much

tougher for the State to retry him because of the amount of

delay in the proceedings.8 Moreover, Special Counsel

informed Comer that he would not be able to change his mind

once he waived his habeas appeal (“[Special Counsel]: Do

you understand that if you are allowed to drop your appeal

that you may not be allowed to reinstate it afterwards if you

[Special Counsel]: You could — you could have a not guilty verdict in your favor and you’d be out on the street, right? 

[Comer]: No. 

[Special Counsel]: Why not? 

[Comer]: I wouldn’t put all the people through another trial. I’d

just go up there, plead guilty. . . . There’s no sense to it. That’s

what I mean. I’ve already been lawfully convicted. 

8

[Special Counsel]: You understand that if the government were

to try this case 13 years later or by the time this decision is made,

habeas decision is made, and if it was made in your favor, that

there would be enormous amount of delay in the proceedings

before they tried you? 

[Comer]: It could be, yes, ma’am. 

[Special Counsel]: And you understand that memories fade over

that long period of time and the government — 

[Comer]: Yes, ma’am. 

[Special Counsel]: — it’s often much harder for the government

to prove their case. 

[Comer]: Yes, ma’am. 

[Special Counsel]: — the second time? And that evidence could

be destroyed and witnesses could disappear or could die? 

[Comer]: Yes. 

[Special Counsel]: And those witnesses who were vital in your

trial — and you remember your trial. 

[Comer]: Yes. 

[Special Counsel]: — may not be around. 

[Comer]: That’s quite possible. 

11134 COMER v. SCHRIRO
change your mind? [Comer]: Yes, sir”). Perhaps most significantly, the District Court itself made clear to Comer that his

decision to waive his appeal was his own and would necessarily result in his death.9

 Despite all this, Comer repeatedly

stressed how he understood the significance and consequences of withdrawing his appeal, and nevertheless wanted

to do so. See, e.g., (“I, in my heart, have not appealed [the

denial of my habeas petition]. I never appealed any of this.”).

From the record, it is also clear that Comer’s waiver was

not “improper[ly] induced” based on the conditions of his

confinement. Doe, 155 F.3d at 1074. First, Comer’s own violent actions in prison have contributed to his continued confinement in restrictive conditions. Both Dr. Johnson’s and Dr.

Krupers’s clinical evaluations make this apparent. Dr. Johnson reports:

Review of Mr. Comer’s behavioral infractions (incident reports) over the last 13 years shows numerous

9

[District Court]: And do you also understand that the decision

that you [Comer] have made and you have asked this Court to

carry out, at least at my level, is the one — one decision which

is most fundamental to all human beings, and that’s to end your

life. 

[Comer]: Yes, ma’am. 

[District Court]: You understand that? 

[Comer]: Yes, ma’am, I do. 

[District Court]: At least that’s considered to be the most fundamental decision that anyone can make in this country. You understand that? 

[Comer]: Yes, ma’am. 

[District Court]: And it’s embodied in the Constitution. You find

it throughout the Constitution. And we all have an obligation to

ensure that nobody does that unless they have fully understood

the consequences. You understand? 

[Comer]: Yes, ma’am. 

COMER v. SCHRIRO 11135
major and minor violations. He had approximately a

dozen violations for possession and manufacture of

a weapon. In almost all cases this involved the making of shanks or knives. On at least two occasions he

set fires in his cell . . . . He had several violations for

destruction of property or tampering with equipment

. . . . On one occasion he was involved in an actual

attempted assault on another individual (another

inmate).

[Comer] has gradually, as the result of his behavior,

developed a reputation within the Arizona DOC as

being their highest security risk and most dangerous

inmate. His intermittent manufacture of weapons and

periodic impulsive verbal responses that are perceived as threatening, make it unlikely that he would

succeed in changing the perception of the DOC

about his degree of dangerousness in the foreseeable

future. He personally verbalizes his own opinion that

the extra security precautions are warranted in his

case and takes some enjoyment in persistently

attempting to succeed in circumventing security

interventions made by the DOC. 

Dr. Krupers reports: 

Mr. Comer feels compelled, as a symptom of his

mental disorder, to continually manufacture [metal]

shanks; his doing so gives the DOC a rationale for

requiring he live in ever more restrictive conditions;

and the extremity of his conditions of confinement in

turn exacerbate the mental disorder that is reflected

(in part) in the compulsion to manufacture shanks

. . . . [Comer’s] psychologically compelled behaviors, to wit shank-manufacturing and threatening

staff, prevent him from gaining even modest

improvements in his actual conditions of confinement. 

11136 COMER v. SCHRIRO
Based on Comer’s own willful and violent actions, it is difficult to see how the State acted improperly in placing him in

maximum confinement and, more importantly, how his conditions of confinement have improperly coerced him into waiving his appeal. 

Second, the conditions of Comer’s confinement in the Arizona Department of Corrections (ADOC) Special Management Unit (SMU) II, while certainly harsh, are no more

restrictive than the conditions of his confinement in SMU I

and California’s Folsom Prison,10 nor are they unique to

Comer. Comer himself estimates that his one-person prison

cell in SMU II is twice as large as his two-person cell in Folsom (“[I]f you took my cell right now and cut it in half, it

would still be bigger than our cells at Folsom, and at Folsom

we had two people sitting in there”). He further notes that

SMU II is more clean, easier to see in and out of, quieter, and

less dangerous than Folsom or SMU I. SMU II is “heaven”

compared to “Folsom” with “much nicer . . . conditions of confinement.”11 Comer references how other inmates were confined in “supermax units” at SMU II and how they posed

equally as high a security risk as Comer. He defines his conditions of confinement in the context of what he and his fellow

inmate, Robert Wayne Vickers (“Bonzai”), had coming to

them (“You had me and Robert Wayne Vickers, Bonzai. We

earned everything we got there [at SMU II], man, that’s how

we got there”). 

10Comer was incarcerated in Folsom from 1979-1984 and in SMU I

from 1988-1996. He has remained in SMU II from 1996 until the present.

11[Comer]: “Yeah. I mean, [SMU II] is still not paradise, but god, you

start comparing to Folsom — you compare it just to SMU I there’s a big

different [sic]. But SMU I was never anywhere close to being what Folsom was . . . . But we’re talking what, 23 years ago was Folsom. We’re

talking SMU I was 15 years ago. And then we’re talking SMU II, that’s

— I’ve been here at SMU II that’s what, six or seven years. And hell, I

could tell you differences just two years ago — how much conditions have

changed in our prison for all of us over there. It’s gotten better just from

two years ago. Not a big major change, like a big major change between

Folsom and today, but you can still see it.” 

COMER v. SCHRIRO 11137
[7] Thus, because Comer’s waiver was “the product of a

free and deliberate choice rather than coercion or improper

inducement,” Doe, 155 F.3d at 1074, the District Court did

not err in determining that Comer voluntarily waived his

habeas appeal right. 

B. The Waiver’s Constitutionality

A capital defendant’s waiver of appeal requires particularly

careful scrutiny. Generally, “[w]e lack jurisdiction to entertain

appeals where there was a valid and enforceable waiver of the

right to appeal.” United States v. Jeronimo, 398 F.3d 1149,

1152-53 (9th Cir. 2005). However, “because there is a qualitative difference between death and any other permissible form

of punishment, ‘there is a corresponding difference in the

need for reliability in the determination that death is the

appropriate punishment in a specific case.’ ” Zant v. Stephens,

462 U.S. 862, 884-85 (1983) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). “By protecting even those

convicted of heinous crimes, the Eighth Amendment reaffirms

the duty of the government to respect the dignity of all persons.” Roper v. Simmons, 543 U.S. 551, 560 (2005). 

[8] The Eighth Amendment provides: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend. VIII

(emphasis added). Its protections apply to the states through

the Fourteenth Amendment. Furman v. Georgia, 408 U.S.

238, 239-40 (1972). “[T]he death penalty has been treated differently from all other punishments” insofar as it cannot be

“imposed without the serious and calm reflection that ought

to proceed any decision of such gravity and finality.” Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) (O’Connor, J.,

concurring). For a death sentence to be constitutional, the

Eighth Amendment requires that the sentence be imposed in

a non-arbitrary fashion. See Gregg v. Georgia, 428 U.S. 153,

188, 189 (1976). 

11138 COMER v. SCHRIRO
[9] Permitting a state to execute a capital defendant without

a full adjudication of his previously filed federal habeas

appeal amounts to an Eighth Amendment violation. The “[Supreme] Court has repeatedly emphasized that meaningful

appellate review of death sentences promotes reliability and

consistency.” Clemons v. Mississippi, 494 U.S. 738, 749

(1990). Meaningful appellate review clearly includes review

on direct appeal. See Barefoot v. Estelle, 463 U.S. 880, 887

(1983) (“[D]irect appeal is the primary avenue for review of

a conviction or sentence, and death penalty cases are no

exception.”). But “significant evidence . . . demonstrates that

the meaningful appellate review necessary in a capital case

extends beyond the direct appellate process.” Murray v. Giarratano, 492 U.S. 1, 24 (1989) (Stevens, J., dissenting). 

[10] Especially vital is meaningful appellate review of a

capital defendant’s habeas petition. “The writ of habeas corpus is the fundamental instrument for safeguarding individual

freedom against arbitrary and lawless state action.” Harris v.

Nelson, 394 U.S. 286, 290-91 (1969). The writ demonstrates

“Congress’ expressed interest in providing a federal forum for

the vindication of the constitutional rights of state prisoners.”

Reed v. Ross, 468 U.S. 1, 10 (1984). Habeas corpus is “not a

‘static, narrow, formalistic remedy,’ but one which must

retain the ‘ability to cut through barriers of form and procedural mazes.’ ” Murray v. Carrier, 477 U.S. 478, 501 (1986)

(Stevens, J., concurring) (citation omitted). Its “central concern” is “fundamental fairness.” Strickland v. Washington,

466 U.S. 668, 697 (1984). Indeed, of the 599 federal habeas

petitions submitted from 1973 to 1995 challenging the constitutionality of death sentences, 237 of them were granted, or

nearly 40%. James Liebman, A BROKEN SYSTEM: ERROR RATES

IN CAPITAL CASES, 1973-1995, E-5 (1995). Between 1976 and

1983, approximately 70% of capital defendants who had been

denied federal habeas relief in district court prevailed in federal courts of appeal. Whitmore, 495 U.S. at 170-71 (Marshall, J., dissenting). Habeas review, therefore, significantly

increases the reliability of a death sentence. 

COMER v. SCHRIRO 11139
[11] In contrast, allowing a defendant to arbitrarily waive

such review, once it has been properly initiated by the defendant and the reviewing court has been presented with briefs

that demonstrate the defendant’s conviction or sentence may

indeed be unconstitutional, violates the Eighth Amendment.

The defendant is not taking his own life, he is coopting the

power of the state’s capital punishment system to kill — a

power that must only be wielded in accordance with the Constitution’s fundamental protections. The people’s interest in

justice, which forms the basis of the state’s power to execute,

should not be so easily commandeered. The right to die is not

synonymous with the right to kill. 

Comer once felt strongly about his federal habeas claims.

His own attorneys — then habeas counsel — filed briefs that

alerted this panel to potentially serious constitutional violations that occurred during Comer’s trial and sentencing proceedings. To pretend these claims have gone away is to

permit the state to execute a man who has been sentenced wrongfully.12 The state should not be able to execute an illegally

convicted or sentenced person. As the Pennsylvania Supreme

Court so eloquently counseled: 

[W]hile a defendant may normally make an

informed and voluntary waiver of rights personal to

himself, his freedom to do so must give way where

a substantial public policy is involved; in such a case

an appeals court may feel fully warranted in seeking

to reach an issue. . . . Because imposition of the

death penalty is irrevocable in its finality, it is imperative that the standards by which that sentence is

fixed be constitutionally beyond reproach. . . . [T]he

waiver concept was never intended as a means of

allowing a criminal defendant to choose his own sentence. 

12See Section II.C., infra, “Comer’s Habeas Claims.” 

11140 COMER v. SCHRIRO
Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978)

(internal citations omitted).13

[12] To allow a defendant to choose his own sentence introduces unconscionable arbitrariness into the capital punishment system. See Massie v. Sumner, 624 F.2d 72, 74 (9th Cir.

1980). Permitting such waiver allows the defendant, not the

justice system with its attendant procedural safeguards, to

determine whom the state will execute. Comer seeks death,

yet the errors in his sentencing hearing prevent us from knowing if he is a member of that narrow class of individuals that

the state is permitted to execute. See Gregg, 428 U.S. at 189.

Indeed, “the waiver rule cannot be exalted to a position so

lofty as to require this Court to blind itself to the real issue—

the propriety of allowing the state to conduct an illegal execution of a citizen.” McKenna, 383 A.2d at 181. We cannot

abdicate our judicial and societal duty to preserve the sanctity

of the Eighth Amendment from such violation. Federal appellate review of a capital defendant’s federal habeas petition is

a vital protection against such arbitrary and inconsistent

infliction of the death penalty. 

[13] We note that limiting a defendant’s ability to unilaterally waive constitutional safeguards is not without precedent.

For example, the Supreme Court upheld a rule that does not

allow a defendant to waive his right to a jury trial without the

consent of the court and of the prosecution. See Singer v.

United States, 380 U.S. 24, 34-35 (1965) (“The ability to

13Because of similar concerns, the state of New Jersey has made mandatory not only direct appellate review, but also at least one round of postconviction review. State v. Martini, 677 A.2d 1106 (N.J. 1996). The New

Jersey Supreme Court explained its decision thus: “For those who wish to

understand, we explain that under our form of government it is not the

inmate on death row or the accused who determines when and whether the

State shall execute a prisoner; rather, the law itself makes that determination. The public has an interest in the reliability and integrity of a death

sentencing decision that transcends the preferences of individual defendants.” Id. at 1107. 

COMER v. SCHRIRO 11141
waive a constitutional right does not ordinarily carry with it

the right to insist upon the opposite of that right.”). Nor may

an accused assert a right to plead guilty to any criminal

charge, and thereby waive his right to a jury trial, absent a

determination of a factual basis for the plea. See FED. R. CRIM.

P. 11(b)(3); McCarthy v. United States, 394 U.S. 459, 466-67

(1969). The McCarthy Court recognized that a defendant

should not be allowed to determine whether he is convicted

of a crime, by pleading guilty, if “his conduct does not actually fall within the charge.” Id. at 467. Similarly, Comer

should not be allowed to sentence himself to death if the state

has not properly fulfilled its obligation to determine who falls

within the narrow class of individuals who deserve capital

punishment. 

This Circuit has already implicitly recognized the correctness of our position. In Landrigan v. Schriro, we ignored the

defendant’s attempt to waive his pending habeas appeal. 441

F.3d 638, 653 n.2 (9th Cir. 2006) (en banc) (Bea, J., dissenting). Instead, in an en banc proceeding, we held that Landrigan may have received ineffective assistance of counsel

during his sentencing hearing and remanded for an evidentiary hearing to develop the facts of the claim. Id. at 650. 

[14] Thus, in spite of Comer’s valid waiver, we must

review the merits of his habeas claims on appeal. To do otherwise, and allow Comer to be executed despite the infirmities

in his sentence, would be to deny him the dignity of being

treated fairly and justly by a state that claims the power of life

and death over his person. 

The dissent contends that review of the Eighth Amendment

claim before us is foreclosed by Gilmore v. Utah, 429 U.S.

1012 (1976). However, the Gilmore Court never addressed

the constitutional claim presented by the petitioner, namely

whether a state must provide mandatory appellate review of

a capital defendant’s conviction and sentence despite the

defendant’s desire to waive such review. See Gilmore, 429

11142 COMER v. SCHRIRO
U.S. at 1017 (“The question . . . [of whether] Gilmore is

‘unable’ as a matter of law to waive the right to [meaningful]

state appellate review . . . simply is not before us.”). 

In Gilmore, the Court’s holding turned on the petitioner’s

lack of standing. Id. at 1014, 1016-17. In that case, convicted

defendant Gary Mark Gilmore directed his attorneys not to

appeal his conviction or sentence and to withdraw an appeal

that had previously been filed without his consent, by

appointed trial counsel. Id. at 1015, n.4. However, four days

before Gilmore’s scheduled execution, his mother, Bessie Gilmore, filed an application for a stay of execution, claiming to

be acting as her’s son’s “next friend.” Id. at 1013. Mr. Gilmore, by and through his attorneys, then filed a response,

challenging his mother’s standing. 

A next friend is one who appears on behalf of a party “unable, usually because of mental incompetence or inaccessibility, to seek relief [himself.]” Whitmore, 495 U.S. at 162

(citations omitted). A “necessary condition for ‘next friend’

standing in federal court is a showing by the proposed ‘next

friend’ that the real party in interest is unable to litigate his

own cause due to mental incapacity, lack of access to court,

or other similar disability.” Id. at 165. The majority in Gilmore held that Mr. Gilmore had “made a knowing and intelligent waiver of any and all federal rights he might have

asserted,” and therefore did not consider the substance of the

claims his mother had raised as his next friend. Id., at 1013.

Whitmore, 495 U.S. 149, is another case, similar to Gilmore, that may at first appear relevant but is actually inapposite. In Whitmore, Jonas Whitmore sought to challenge the

validity of the sentence imposed on fellow death row inmate

Ronald Simmons, who had knowingly, intelligently, and voluntarily chosen to appeal neither his conviction nor his sentence. Id. at 151. The Supreme Court ruled that Whitmore

lacked standing, and dismissed the petition for lack of jurisdiction. Id. at 165-66. 

COMER v. SCHRIRO 11143
Notably, neither Gilmore nor Whitmore was decided without significant dissenting opinions: 

When a capital defendant seeks to circumvent procedures necessary to ensure the propriety of his conviction and sentence, he does not ask the State to permit

him to take his own life. Rather, he invites the State

to violate two of the most basic norms of a civilized

society—that the State’s penal authority be invoked

only where necessary to serve the ends of justice, not

the ends of a particular individual, and that punishment be imposed only where the State has adequate

assurance that the punishment is justified. The Constitution forbids the State to accept that invitation. 

Whitmore 495 U.S. at 173 (Marshall, J., dissenting, joined by

Brennan, J.); See Gilmore, 429 U.S. at 1018 (White, J., dissenting, joined by Marshall and Brennan, J.) (“[T]he consent

of a convicted defendant . . . does not privilege a State to

impose a punishment otherwise forbidden by the Eighth

Amendment.”).

But the remaining Justices in both cases expressly stated

that they were not reaching the issues addressed in the dissents. In Gilmore, 429 U.S. at 1017 (J. Stevens, concurring,

joined by J. Rehnquist), Justice Stevens’s concurrence

described Bessie Gilmore’s petition as one of a “third party

[who] has no standing to litigate an Eighth Amendment claim

or indeed any other claim on [the defendant’s] behalf.” Justice

Berger stated that the question raised in Justice White’s dissent was not before the Court. Id. at 1017 (J. Burger, concurring, joined by J. Powell). 

Similarly, in Whitmore, 495 U.S. at 151, 155 (internal quotations and punctuation omitted), Justice Rehnquist explained:

This case presents the question whether a third party

has standing to challenge the validity of a death sen11144 COMER v. SCHRIRO
tence imposed on a capital defendant who has

elected to forgo his right of appeal to the State

Supreme Court. . . . Our threshold inquiry into standing “in no way depends on the merits of the petitioner’s contention that particular conduct is illegal,” . . .

and we thus put aside for now Whitmore’s Eighth

Amendment challenge[.] 

Comer’s case is different. Comer himself initiated his current appeal and properly stands before this court in his own

right. Comer began the present federal habeas proceedings by

filing with the District Court a preliminary petition for writ of

habeas corpus, an application for appointment of counsel, and

a request for a stay of execution. As a majority of this panel

previously pointed out in its published opinion:

[Comer] signed the pleading himself, in which he

described the procedural history of his case and

alleged that, “I am being held in violation of my federal constitutional rights.” [He] specifically

requested that the district court appoint Peter J. Eckerstom, his current counsel, and John R. Hannah, Jr.,

of the Law Offices of the Federal Public Defender in

Arizona, to represent him. He also asked the court to

both provide his attorneys with sufficient time to file

an amended petition and to grant a stay of execution.

In support of his request for the appointment of

counsel, he signed an affidavit attesting to his indigence. 

When Mr. Comer returned to state court with his

federal constitutional claims, he personally verified

the petition and repeated that he had given his consent to his counsel to proceed. He stated on that form

that the petition contained every ground of which he

was aware for granting a writ of habeas corpus. Further, he wrote that “Peter J. Eckerstrom is authorized

COMER v. SCHRIRO 11145
to represent me in this matter. The pleadings he has

already filed are authorized by me.” 

Comer, 215 F.3d at 912. 

Comer himself filed opening and reply briefs in this Court

“rais[ing] serious questions about the constitutionality of his

conviction and sentence.” Comer, 215 F.3d at 912. In contrast, Gilmore never chose to appeal. Gilmore, 429 U.S. at

1015, n.4. We exercised 28 U.S.C. § 2253 jurisdiction over

Comer’s habeas petition in 2000, and oral argument pertaining to the merits of his claims had been scheduled prior to the

filing of any motion to dismiss the appeal. The State’s and

Habeas Counsel’s briefs concerning the merits of Comer’s

habeas petition are today pending before this Court. 

We now decide a question left unanswered by the Supreme

Court: whether the Constitution permits a state to execute a

capital defendant who wants to die but whose properly filed

federal habeas appeal has not yet been substantively

reviewed. We answer this question in the negative.

C. Comer’s Habeas Claims 

1. Standard of Review

[15] Because Comer filed his federal habeas petition in

1994, the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”) does not apply to his petition. See Lindh v.

Murphy, 521 U.S. 320, 327 (1997). We therefore apply preAEDPA standards of review. Woodford v. Garceau, 538 U.S.

202, 205 (2003). Under these standards “state court judgments

of conviction and sentence carry a presumption of finality and

legality and may be set aside only when a state prisoner carries his burden of proving that [his] detention violates the fundamental liberties of the person, safeguarded against state

action by the Federal Constitution.” Hayes v. Brown, 399 F.3d

972, 978 (9th Cir. 2005) (en banc). 

11146 COMER v. SCHRIRO
We review de novo the District Court’s denial of habeas

relief. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.

2003). 

2. Exhaustion

a. Federal Standard

[16] Consistent with our pre-AEDPA standard, habeas

relief shall not be granted unless it appears that a petitioner

has exhausted state remedies “or that there is either an

absence of available State corrective process or the existence

of circumstances rendering such process ineffective to protect

the rights of the prisoner.” 28 U.S.C. § 2254(b) (1994). For us

to pass on the merits of a constitutional claim, that claim must

first have been “fairly presented to the state courts.” Picard

v. Connor, 404 U.S. 270, 275 (1971) (internal quotation

marks and citation omitted); Casey v. Moore, 386 F.3d 896,

911 (9th Cir. 2004). 

[17] Even if a petitioner fails to raise a constitutional claim

in state court, the exhaustion requirement may be satisfied,

allowing us to address the claim on its merits, where the state

court itself exhausts the claim. In particular, where a state

court is required to review the record for federal constitutional

error, the state court’s determination that there was no error

constitutes sufficient state consideration of a constitutional

claim, which impliedly exhausts that claim in a way that is not

independent of federal law. See Ake v. Oklahoma, 470 U.S.

68, 74-75 (1985); Beam v. Paskett, 3 F.3d 1301, 1306-07 (9th

Cir. 1993), overruled on other grounds by Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir. 1999). A state court’s automatic review process does not necessarily exhaust all federal

constitutional claims. See Poland v. Stewart, 117 F.3d 1094,

1105-06 (9th Cir. 1997) (distinguishing Arizona’s fundamental error review provision as not providing implied exhaustion

of otherwise precluded constitutional claims). Rather, only

COMER v. SCHRIRO 11147
those claims that the state court is specifically required to

review are exhausted on the merits by that review. Id. at 1106.

In Beam, we construed the Idaho Supreme Court’s automatic review of death sentences as impliedly exhausting constitutional claims not raised by the capital defendant on direct

appeal in state court. 3 F.3d at 1306-07.14 Because the Idaho

Supreme Court “ha[d] an affirmative duty to review the entire

record in a capital case to determine . . . whether ‘the sentence

of death was imposed under the influence of passion, prejudice, or any other arbitrary factor[,]’ [t]he state court must

[have] consider[ed] possible errors in sentencing that [were]

not raised by the defendant.” Id. (internal citation omitted).

The Idaho Supreme Court’s decision to affirm Beam’s death

sentence necessarily included an “antecedent determination of

federal law.” Id. at 1307. Thus, Beam’s challenge to the constitutionality of the use of an aggravating factor during sentencing was not procedurally defaulted. Id. 

b. Arizona Supreme Court’s Independent Review of

Capital Cases

[18] As in Beam, we look both to Arizona’s statutes and its

case law to determine the parameters of Arizona’s independent review of capital cases. “In capital cases, [the Arizona

Supreme Court] independently examine[s] the record to determine the existence of aggravating and mitigating circumstances and the propriety of imposing the death penalty.”

Comer, 799 P.2d at 348 (Ariz. 1990) (emphasis added). This

independent review specifically encompasses review of the

sentencing hearing and record as well as aggravating and mitigating circumstances to ensure, among other things, that

14The State contends that the Court’s decision in Teague v. Lane, 489

U.S. 288 (1989), bars retroactive application of Beam to Comer’s case.

We have held, however, that Teague does not apply to matters of federal

habeas jurisdiction, including our exhaustion analysis. Coe v. Thurman,

922 F.2d 528, 533-34 (9th Cir. 1991). 

11148 COMER v. SCHRIRO
“proper procedures were followed.” State v. Hill, 848 P.2d

1375, 1388 (Ariz. 1993) (citation omitted) (reviewing whether

the sentencing judge had an impermissible conflict that

required his recusal, as well as aggravating and mitigating circumstances); accord State v. Stuard, 863 P.2d 881, 896-97

(Ariz. 1993) (undertaking a “painstaking” examination of the

record to determine if the death penalty was erroneously

imposed); State v. Bible, 858 P.2d 1152, 1206 (Ariz. 1993);

see also State v. Watson, 628 P.2d 943, 946 (Ariz. 1981) (noting that the Arizona Supreme Court painstakingly reviews

death sentences to ensure the punishment is not inflicted in an

arbitrary and capricious manner). The Arizona Supreme Court

also ensures that the death penalty was not “imposed under

the influence of passion, prejudice, or any other arbitrary factors.” State v. Richmond, 560 P.2d 41, 51 (Ariz. 1977), overruled on other grounds by State v. Salazar, 844 P.2d 566

(Ariz. 1992); accord State v. Woratzeck, 657 P.2d 865, 871

(Ariz. 1982). This independent review process includes scrutiny of federal constitutional claims. State v. Brewer, 826 P.2d

783, 790-91 (1992) (undertaking independent review because,

among other matters, the Arizona Supreme Court must determine that under the Eighth and Fourteenth Amendments the

death penalty is not being inflicted in an arbitrary and capricious fashion). As the Arizona Supreme Court noted in

explaining its review, “[i]f the record reveals that the trial

court, for whatever reason, improperly sentenced a defendant

to death, we must overturn that sentence.” Id. at 791 (emphasis added).15

15We have recognized the thoroughness of the Arizona Supreme Court’s

independent review process in another context. See Gerlaugh v. Stewart,

129 F.3d 1027, 1045 (9th Cir. 1997) (finding that Arizona’s independent

review as to the “propriety and legality of the death penalty” justifies

counsel’s tactical decision to rely on that review instead of independently

raising claims related to defendant’s sentencing). 

COMER v. SCHRIRO 11149
c. Comer’s Impliedly Exhausted Habeas Claims

The District Court found seven of Comer’s present habeas

claims to be procedurally defaulted because Comer failed to

raise them in state court.16 As explained below, however,

under the Arizona Supreme Court’s independent review process, four of these seven claims were impliedly exhausted;

therefore, we may address the merits of those claims. 

The preceding discussion makes clear that during its independent review, the Arizona Supreme Court examines the

entire record, particularly the sentencing hearing, to determine

if any procedural errors occurred or other arbitrary factors

influenced the sentencing court’s decision to impose the death

sentence. The Arizona Supreme Court is clearly conscious of

its duty to respect the dictates of the Eighth and Fourteenth

Amendments and to ensure that the death penalty is not

imposed in an arbitrary and capricious fashion. 

Four of the claims Comer initially presented to the District

Court (Claims VIII, IX, X, and XI) relate to the procedural

conduct of his sentencing hearing, and directly implicate

Eighth and Fourteenth Amendment protections against the

arbitrary imposition of the death penalty. These claims were

also readily apparent from the record that the Arizona

Supreme Court painstakingly reviewed. Cf. Falcone v. Stewart, 120 F.3d 1082, 1084 n.2 (9th Cir. 1997) (constitutional

16Specifically, those claims include: (1) the unconstitutionality of the

trial court’s failure to follow a statutorily required procedure at a postcompetency hearing (Claim VIII), (2) the unconstitutionality of the trial

court’s conducting a post-competency hearing in Comer’s absence (Claim

IX), (3) the unconstitutionality of the trial court’s sentencing Comer while

unclothed and semi-conscious (Claims X and XI), (4) the insufficiency of

evidence to support the court’s finding that Comer committed the homicide for pecuniary gain (Claim XII), (5) the Arizona Supreme Court’s failure to consider the cumulative weight of Comer’s mitigation evidence

(Claim XIV), and (6) the Arizona death penalty statute’s failure to narrow

the class of defendants subject to the death penalty (Claim XVI). 

11150 COMER v. SCHRIRO
claims that are “readily apparent from the record” fall under

the penumbra of the automatic review process), vacated on

other grounds, 524 U.S. 947 (1998). Therefore, we hold that

they were impliedly exhausted, on their merits, by Arizona’s

independent review of Comer’s capital case. We examine the

implied exhaustion of each of these penalty-phase claims in

turn. 

First, Comer claims that the trial court violated his Fifth,

Sixth, and Fourteenth Amendment rights by not determining

his competency during the sentencing hearing, and not following a statutorily required procedure at a post-sentence

competency hearing (Claim VIII). Comer’s compromised

physical and mental condition during sentencing is readily

apparent from the record that was presented to the Arizona

Supreme Court. That record included a transcript of the sentencing hearing, which begins with the very question of

whether Comer is even conscious. This question arose

because Comer was presented to the court nearly naked,

shackled to a wheelchair, with his head slumped to the side,

and bleeding from a head wound. A videotape of the sentencing, demonstrating Comer’s condition, was also before the

Arizona Supreme Court. Furthermore, the record included a

transcript of the post-sentencing competency hearing, held the

next day, in which Comer’s competency during sentencing

was explicitly discussed. These transcripts and videotape gave

ample notice to the Arizona Supreme Court that Comer’s

competency was of concern during the sentencing hearing.

Additionally, to sentence a defendant while he is incompetent

is a federal due process violation. See Sailer v. Gunn, 548

F.2d 271, 273-74 (9th Cir. 1977); see also Pate v. Robinson,

383 U.S. 375, 378 (1966); Drope v. Missouri, 420 U.S. 162,

172 (1975). The Arizona Supreme Court’s decision not to

address this constitutional issue during its independent review

was an implicit rejection of any error. 

Second, Comer claims that the conduct of the post-sentence

competency hearing in his absence violated his Sixth, Eighth,

COMER v. SCHRIRO 11151
and Fourteenth Amendment rights (Claim IX). Again,

Comer’s absence from the post-sentence hearing is readily

apparent from the transcripts. A defendant has a constitutional

right to be present at any critical stage of his prosecution,

including at capital sentencing hearings, see Gardner v. Florida, 430 U.S. 349 (1977), and hearings to determine the

defendant’s competency, see Sturgis v. Goldsmith, 796 F.2d

1103, 1108 (9th Cir. 1986). Thus, by failing to address this

issue, the Arizona Court again impliedly rejected any error. 

Third, Comer claims his sentencing while unclothed and

semi-conscious violated the due process clause of the Fourteenth Amendment (Claims X and XI). The egregious circumstances of Comer’s condition during sentencing are readily

apparent from both the trial transcript and the videotape presented to the Arizona Supreme Court. By not commenting on

this issue, the Arizona Court implicitly signaled its rejection

of any error. 

[19] We hold, therefore, that these four claims were

exhausted on their merits by the Arizona Supreme Court’s

independent review of Comer’s capital case. Comer’s three

other claims (Claims XII, XIV, and XVI) are neither as readily apparent from the record nor as clearly encompassed

within Arizona’s independent review. Thus, we do not find

them to be impliedly exhausted. We may proceed to decide

the merits of Comer’s impliedly exhausted claims without

remand to the District Court. See Beam, 966 F.2d at 1570-75;

Granberry v. Greer, 481 U.S. 129, 131 (1987) (noting that a

federal appellate court may appropriately decide the merits of

a habeas petition). 

Additionally, Comer argues that Arizona’s fundamental

error review exhausted most of the other claims he presented

to the District Court. We have held, however, that we will

only consider a claim to be exhausted by Arizona’s fundamental error review if it was explicitly noted in the briefs

presented to the state appellate court, or the state court men11152 COMER v. SCHRIRO
tions it is considering the claim sua sponte. See Moormann v.

Schriro, 426 F.3d 1044, 1057 (9th Cir. 2005). Because neither

occurred in this case, we affirm the District Court’s finding

that most of Comer’s other habeas claims were procedurally

defaulted. 

We now proceed to address on the merits Comer’s

impliedly exhausted and actually exhausted claims. First, we

will consider the four guilt-phase claims that Comer raises in

his appeal brief and that the District Court found were actually exhausted and thus not procedurally defaulted. Second,

we will address Comer’s penalty phase claims, which include

an actually exhausted claim of ineffective assistance of counsel and the four impliedly exhausted claims we have discussed in this section. 

COMER v. SCHRIRO 11153
Volume 2 of 2

COMER v. SCHRIRO 11155
3. Guilt-Phase Claims

Comer contends that his conviction should be set aside

because of several constitutional errors that occurred during

the guilt phase of his trial. Specifically, Comer claims that: (1)

the trial court’s failure to sever the Pritchard homicide count

from the Andrews and Brough kidnapping/robbery/sexual

assault counts violated his due process right to a fair trial; (2)

the trial court’s failure to sever the counts also violated his

constitutional right to testify; (3) the prosecutor’s misconduct

during closing argument deprived Comer of a fundamentally

fair trial; and (4) the trial court’s failure to strike two

venirepersons for cause denied Comer his Sixth Amendment

right to a fair and impartial jury. 

The District Court considered the merits of all four of these

claims and denied Comer’s habeas petition. We agree with the

District Court that Comer is not entitled to relief based upon

any of these claims; therefore, his conviction should stand and

we deny his habeas petition as to these guilt-phase claims. 

a. Severance

i. Due Process 

Comer’s first claim is that the trial court improperly joined

the Pritchard homicide count to the Andrews and Brough

kidnapping/robbery/sexual assault counts. Comer contends

that, because the evidence with regard to the Andrews and

Brough counts was stronger and more inflammatory than the

evidence relating to the first-degree murder count, he was

prejudiced by the joinder of the offenses since the inflammatory evidence had a substantial and injurious impact on the

jury’s determination regarding the first-degree murder count.

[20] “[T]he propriety of consolidation rests within the

sound discretion of the state trial judge.” Fields v. Woodford,

309 F.3d 1095, 1110 (9th Cir. 2002). Thus, we will not grant

11156 COMER v. SCHRIRO
habeas relief unless the joinder “actually render[ed] petitioner’s state trial fundamentally unfair and hence, violative of

due process.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.

2004) (citation omitted); Bean v. Calderon, 163 F.3d 1073,

1084 (9th Cir. 1998). “The requisite level of prejudice is

reached only if the impermissible joinder had a substantial

and injurious effect or influence in determining the jury’s verdict.” Davis, 384 F.3d at 638 (internal quotation marks and

citation omitted). We conclude that the joinder of the homicide and kidnapping/robbery/sexual assault counts did not

render Comer’s trial fundamentally unfair. 

Comer contends that the circumstances of his trial are analogous to those found in Bean v. Calderon, a case in which we

held that the joinder of two murder counts prejudiced the

defendant as to one of the counts. 163 F.3d at 1083-86. The

likelihood of prejudice in Bean, however, was much greater

than the likelihood that Comer was prejudiced by the joinder

of the homicide and kidnapping/robbery/sexual assault

counts. 

First, in Bean, we found that the evidence regarding the

separate murder counts at issue would not have been crossadmissible had the counts been tried separately. 163 F.3d at

1084. In contrast, the Arizona Supreme Court held that the

homicide and kidnapping/robbery/sexual assault counts were

properly joined because evidence pertaining to both sets of

offenses demonstrated that Comer was engaged in a common

scheme or plan to obtain money and supplies. Comer, 799

P.2d at 338-39 (Ariz. 1990). Thus, as Comer acknowledges,

at least some of the evidence presented at his trial was admissible as to all of the counts. This cross-admissibility of evidence significantly reduces the potential prejudice to Comer.

See, e.g., Davis, 384 F.3d at 638-39 (finding no prejudice to

the defendant when evidence was cross-admissible, the

weight of evidence for each count was roughly equivalent,

and the court gave a limiting instruction); cf. Leach v. Kolb,

911 F.2d 1249, 1258-60 (7th Cir. 1990) (holding that, even

COMER v. SCHRIRO 11157
when counts were not properly joined under state law, the

misjoinder was not prejudicial due to a limiting instruction

and strong evidence of guilt as to each charge). 

Second, the improperly joined counts in Bean consisted of

two murders. 163 F.3d at 1083. However, when the joined

offenses are different in nature, such as murder and

kidnapping/sexual assault, and specific evidence is presented

as to each crime, the risk of confusing or misleading the jury

is reduced. See United States v. Irvine, 756 F.2d 708, 712-13

(9th Cir. 1985). 

Third, the jury in Bean received only a very general

instruction that each count must be decided separately. 163

F.3d at 1083. In contrast, Comer’s jury was explicitly

instructed “to give separate consideration to each individual

count” and to “analyze what the evidence in each count shows

with respect to that individual count.” While this instruction

may not have been ideal, since the court subsequently

instructed that jury that some evidence might overlap between

the counts, it still acted to limit any prejudice. See Davis, 384

F.3d at 639 (“[A]ny prejudice was further limited through an

instruction directing the jury to consider each count separately.”). 

Finally, the evidence relating to Comer’s guilt of the Pritchard homicide count was strong, as was the evidence of the

kidnapping/robbery/sexual assault counts. In Bean, the prosecution was able to muster only scant evidence to convict Bean

of the second murder count, including a disputed fingerprint,

a matching hair, and testimony of a neighbor who saw Bean

hiding in some bushes across from the victim’s house several

weeks before the crime took place. 163 F.3d at 1085. Here,

in contrast, during closing argument Comer’s counsel admitted that Comer shot Pritchard. Comer’s defense was that the

shooting was an accident precipitated by Comer’s intoxication

at the time, and thus did not involve the premeditation necessary for a finding of first degree murder. The prosecution

11158 COMER v. SCHRIRO
presented substantial evidence to rebut this theory, including:

(1) the location of the wound, behind the ear, which suggested

a deliberate shooting; (2) testimony of Willis that, moments

before the shooting, Comer told her, “I’m going to blow him

away,” and that after the shooting Comer said “[s]ee what

I’ve done, I’m a cold and callous killer”; and (3) evidence that

Comer stabbed Pritchard in the throat after the shooting.

Comer counters that Willis’s testimony cannot be believed.

When faced with this argument in Sandoval v. Calderon,

however, we held that the issue of a witness’s credibility is for

the jury to decide. 241 F.3d 765, 772-73 (9th Cir. 2000). The

jury’s conviction of Comer on the first degree murder count

suggests it credited Willis’s testimony. Additionally, all parties agree that the evidence as to Comer’s guilt with regard to

the kidnapping/robbery/sexual assault counts was overwhelming. 

[21] Given the strength of the evidence against Comer on

all counts, the cross-admissibility of that evidence, and the

trial court’s limiting instruction, we hold that Comer’s trial

was not rendered fundamentally unfair by joinder of the

counts. See, e.g., Davis, 384 F.3d at 638-39 (holding no prejudice to defendant when evidence was cross-admissible,

weight of evidence for each count was roughly equivalent,

and court gave a limiting instruction); Fields, 309 F.3d at

1109-1110 (holding no prejudice to defendant when evidence

was cross-admissible and evidence of guilt as to all counts

was strong); Sandoval, 241 F.3d at 771-73 (same).

ii. Right to Testify 

In a related claim, Comer contends that his right to testify

under the Fifth, Sixth, and Fourteenth Amendments was violated when the trial court refused to sever the Pritchard homicide count from the Andrews and Brough counts. 

Comer is correct in asserting that he has a due process right

to testify in his own defense. See Rock v. Arkansas, 483 U.S.

COMER v. SCHRIRO 11159
44 (1987). The right to testify, however, does not guarantee

a defendant’s ability to testify only to information favorable

to his defense. Rock, 483 U.S. at 52 (a defendant who chooses

to testify is subject to cross-examination); United States v.

Alosa, 14 F.3d 693, 696 (1st Cir. 1994) (noting that the Fifth

Amendment protects a defendant’s right to choose whether to

testify, but “does not assure that the testimony will only benefit the defendant”). A defendant, therefore, retains the ability

to decide strategically whether to testify and thus revealing

damaging information. See Rock, 483 U.S. at 53. 

[22] However, joinder of counts may unduly affect a defendant’s choice whether to testify. See, e.g., United States v.

Balzano, 916 F.2d 1273, 1283 (7th Cir. 1990). To obtain severance because of this prejudicial effect, a defendant “must

show that he has important testimony to give on some counts

and a strong need to refrain from testifying on those he wants

severed.” See United States v. Nolan, 700 F.2d 479, 483 (9th

Cir. 1983). Applying Nolan to this case, we hold that Comer

was not entitled to severance based on his Fifth, Sixth, and

Fourteenth Amendment right to testify. 

[23] Comer claims that, had the counts not been joined, he

would have testified to the circumstances surrounding his

shooting of Pritchard. Because he did not wish to testify

regarding the Andrews and Brough counts, however, he

refrained from taking the stand, or even attending the trial,

because his motion for severance was not granted. In support

of his motion for severance, a defendant must specifically

identify the testimony he would offer in his defense so that

the trial court can determine if that testimony is important

enough to justify severance. See United States v. Fenton, 367

F.3d 14, 22 (1st Cir. 2004) (holding that a bald assertion of

innocence and unparticularized claim as to witness credibility

was not specific enough to mandate severance); United States

v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998) (requiring

specific examples of the exculpatory testimony the defendant

would give). Before the trial court, Comer’s counsel asserted

11160 COMER v. SCHRIRO
that Comer would testify that the shooting was unintentional

and give details of the surrounding circumstances. Comer

would also have refuted Willis’s testimony by denying that he

ever made the statements “I’m going to blow him away” and

“I’m a cold, callous killer.” Without additional details regarding the circumstances Comer would have testified to, we find

this proffered testimony is not specific enough to mandate

severance. 

Additionally, Comer did not have a strong need to refrain

from testifying as to the Jones and Smith counts. “[A] defendant fails to make a convincing demonstration of a strong

need to refrain from testifying on particular counts when[,]

[w]ithout [the defendant’s] testimony, the government offered

sufficient evidence to support the jury’s verdict on these

counts.” Balzano, 916 F.2d at 1283 (internal quotation marks

omitted); accord United States v. Freeland, 141 F.3d 1223,

1227 (7th Cir. 1998). As discussed in the previous section, all

parties agree that the evidence with regard to the Jones and

Smith counts, which included the eyewitness testimony of

Jones, Smith, Willis, and Willis’s daughter, was overwhelming. Thus, Comer lacked a strong need to refrain from testifying to these counts. 

[24] For these reasons, the trial court did not violate

Comer’s Fifth, Sixth, and Fourteenth Amendment rights by

refusing to sever the Pritchard count from the Jones and Smith

counts.

b. Prosecutorial Misconduct

Comer’s next claim is that the prosecutor engaged in misconduct that violated Comer’s Fourteenth Amendment due

process rights by rendering his trial fundamentally unfair. In

particular, Comer takes issue with the prosecutor’s use of

dehumanizing epithets during closing argument. Comer

claims the remarks were both improper and impermissibly

appealed to the passion and prejudice of the jury. 

COMER v. SCHRIRO 11161
[25] As all of the other courts before us have done, we condemn the prosecutor’s remarks. At various times throughout

closing argument, the prosecutor repeatedly referred to Comer

as a “monster” and “filth,” analogized his crimes to a horror

movie, and once called Comer a “reincarnation of the devil.”

We also agree with the other courts, however, that the prosecutor’s remarks did not render Comer’s trial fundamentally

unfair. “[I]t is not enough that the prosecutors’ remarks were

undesirable or even universally condemned.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal quotation

marks omitted). Rather, we must decide “whether the prosecutors’ comments so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Id.

(internal quotation marks omitted). “[T]he appropriate standard of review for such a claim on writ of habeas corpus is

the narrow one of due process, and not the broad exercise of

supervisory power.” Id. (internal quotation marks omitted);

accord Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995).

First, we address Comer’s claim that the prosecutor’s dehumanizing epithets rendered his trial fundamentally unfair. The

prosecutor’s remarks regarding Comer are similar to those

uttered by the prosecutors in Darden. There, the prosecutors

called the defendant an “animal” and asserted that he should

be kept on a leash. 477 U.S. at 180 n.11 & n.12. The prosecutors also expressed their wish that Darden’s face had been

blown off during his crimes, and argued that Darden deserved

the death penalty to prevent him from ever terrorizing the

public again. Id. at 180 n.10 & n.12. Both Darden’s prosecutors and Comer’s prosecutor dehumanized their respective

defendants with these remarks. 

Nonetheless, in Darden, the Supreme Court held that the

prosecutors’ remarks did not deny the defendant a fundamentally fair trial for several reasons, including: the prosecutor

did not manipulate or misstate any evidence; many of the

remarks were responsive to comments made by the defense;

the trial court instructed the jurors that their decision “was to

11162 COMER v. SCHRIRO
be made on the basis of the evidence alone” and “the arguments of counsel were not evidence”; strong evidence of the

defendant’s guilt had been presented during the trial; and

defense counsel turned many of the prosecutors’ remarks

against them in defense counsel’s rebuttal. Id. at 181-82. 

Similarly, Comer’s prosecutor did not misstate or manipulate any evidence in making his objectionable remarks. The

trial court also instructed the jurors that their decision was to

be based only on the evidence produced in court, with evidence defined as witness testimony and exhibits. The jurors

were specifically admonished that the lawyers’ statements

during opening and closing argument were not evidence. Furthermore, they were instructed not to be “influenced by sympathy or prejudice.” And during his closing statement, the

prosecutor warned the jurors that his statements, and those of

defense counsel, were not “proof.” These admonishments and

instructions significantly limited any prejudice caused by the

prosecutor’s remarks. See, e.g., Furman v. Wood, 190 F.3d

1002, 1006 (9th Cir. 1999) (upholding the state court’s ruling

that the prosecutor’s improper statements did not render trial

fundamentally unfair because the prosecutor also told the jury

that his arguments were not evidence, and because the government presented a strong case against the defendant); Hall

v. Whitley, 935 F.2d 164, 165-66 (9th Cir. 1991) (holding that

the prosecutor’s improper comments were isolated moments

in a three day trial, and their effect was mitigated by the

judge’s instructions that closing arguments were not evidence,

and the strong proof of the defendant’s guilt). 

Additionally, as discussed earlier, there was strong evidence of Comer’s guilt. Comer claims that the prosecutor’s

remarks were intended to induce the jury to find that he had

premeditated an intent to shoot Pritchard. However, the prosecutor only once referred to Comer as a “monster” when discussing the murder count. All of the prosecutor’s other

objectionable remarks were made during his discussion of the

Andrews and Brough counts, on which there was overwhelmCOMER v. SCHRIRO 11163
ing evidence of Comer’s guilt. There was also strong evidence, including eyewitness testimony, regarding Comer’s

premeditation. Finally, any emotional impact that the prosecutor’s statements may have had on the jury likely only replicated the impact of earlier eyewitness testimony from the

victims and Willis. See Fields v. Woodford, 309 F.3d at 1109

(“[G]iven the eyewitness testimony about what [the defendant] did to [the victim], there is no reasonable probability

that the prosecutor’s emotional appeal affected the verdict.”).

[26] Accordingly, we hold that while the prosecutor’s

remarks were improper, they do not rise to the level of a due

process violation. See Hall, 935 F.2d at 165-66; Kellogg v.

Skon, 176 F.3d 447, 451-52 (8th Cir. 1999) (holding that the

prosecutor’s improper remarks, including calling the defendant a “monster,” “sexual deviant,” and “liar,” did not rise to

the level of a due process violation because of limiting jury

instructions, no attempt on the part of the prosecutor to

manipulate or misstate the evidence, and heavy evidence of

guilt). 

Additionally, we reject Comer’s contention that these

remarks were an impermissible appeal to the passion and prejudice of the jury. Comer cites Northern Mariana Islands v.

Mendiola for the proposition that comments “designed to

appeal to the passions, fears, and vulnerabilities of the jury”

may constitute grounds for reversal. 976 F.2d 475, 486-487

(9th Cir. 1992), overruled on other grounds by George v.

Camacho, 119 F.3d 1393 (9th Cir. 1997). In Mendiola, however, “we emphasized . . . that the comment was prejudicial

only in view of the weakness of the prosecution’s case, the

prosecutor’s disingenuity as to the whereabouts of the missing

weapon, and the Government’s resort to coercion to obtain

evidence.” United States v. Hinton, 31 F.3d 817, 825 (9th Cir.

1994) (explaining our holding in Mendiola). Because none of

these factors are present here, we hold that the prosecutor’s

remarks did not render Comer’s trial fundamentally unfair.

11164 COMER v. SCHRIRO
c. Refusal to Strike Venirepersons

[27] Comer’s fourth guilt-phase claim is that the trial

court’s failure to strike for cause two venirepersons denied

Comer his right to a fair and impartial jury as required by the

Sixth and Fourteenth Amendments. Comer contends that two

of the venirepersons questioned during jury selection,

Thrailkill and Wilborn, were biased because of their previous

knowledge of some of the facts of the case and, therefore,

should have been dismissed for cause. When the trial court

refused to strike the two potential jurors, Comer’s counsel

used two of his preemptory challenges to remove them from

the jury. Even if the trial court erred in failing to strike the

two venirepersons in question, such error does not constitute

an unconstitutional denial of a fair and impartial jury unless

the venirepersons sit on the jury. United States v. MartinezSalazar, 528 U.S. 304 (2000). Because Thrailkill and Wilborn

were not members of Comer’s jury, he suffered no constitutional harm.

d. Conclusion 

[28] For the foregoing reasons, we affirm the District

Court’s denial of Comer’s habeas petition as to his guilt-phase

claims. 

4. Penalty-Phase Claims 

Pursuant to our holding that several of Comer’s penaltyphase claims were impliedly exhausted by Arizona’s independent review of Comer’s capital case, we have before us five

claims of error from Comer’s sentencing hearing. Comer contends that: (1) his sentencing counsel rendered ineffective

assistance; (2) he was constitutionally entitled to a hearing to

determine his competency at the time of sentencing; (3) the

conduct of a post-sentence competency hearing in his absence

violated his Sixth, Eighth, and Fourteenth Amendment rights;

(4) sentencing him while unclothed and semi-conscious

COMER v. SCHRIRO 11165
impaired his right to allocution; and (5) sentencing him for a

capital crime while unclothed violated the Fourteenth Amendment. 

As to Comer’s fifth claim, we hold that his Fourteenth

Amendment due process rights were violated by the circumstances under which he was presented to the sentencing court.

Because we grant his writ of habeas corpus on this basis, we

do not address Comer’s other sentencing-phase claims.

a. Comer’s Treatment During Sentencing

[29] Comer contends that his due process rights under the

Fourteenth Amendment were violated when he was sentenced

to death while nearly naked and barely conscious. While this

is an issue of first impression for this Court, we agree with

Comer that his treatment during sentencing “shocks the conscience” and warrants reversal of his sentence. 

“Regard for the requirements of the Due Process Clause

‘inescapably imposes upon this Court an exercise of judgment

upon the whole course of the proceedings (resulting in a conviction) in order to ascertain whether they offend those canons of decency and fairness which express the notions of

justice of English-speaking peoples even toward those

charged with the most heinous offenses.’ ” Rochin v. California, 342 U.S. 165, 169 (1952) (citation omitted). Conduct of

state officials that “shocks the conscience” will not be tolerated. Id. at 172. 

Subsequent decisions have given content to this broad protection. In particular, numerous courts have found that the

routine and unjustified shackling of a defendant, at any stage

of trial proceedings, violates due process. See Deck v. Missouri, 544 U.S. 622 (2005) (holding that the visible shackling

of a defendant before a jury during the guilt phase or penalty

phase of a capital trial violates due process absent casespecific security justifications for the shackling); United

11166 COMER v. SCHRIRO
States v. Howard, 429 F.3d 843 (9th Cir. 2005) (holding that

the shackling of pretrial detainees during their first appearance before a magistrate judge violates due process unless

reasonably related to a legitimate goal); Duckett, 67 F.3d at

746-50 (holding that the shackling of a defendant during the

penalty phase of a capital trial is inherently prejudicial and

may only occur if compelling circumstances justify the need

for shackling to maintain order in the courtroom). 

Five basic considerations have led courts to conclude that

unjustified shackling is a due process violation. First, shackling suggests to the trier of fact that the defendant is dangerous, which adversely and impermissibly affects perception of

the defendant in a way that undermines the trier’s “ability to

weigh accurately all relevant considerations — considerations

that are often unquantifiable and elusive — when it determines whether a defendant deserves death.” Deck, 544 U.S.

at 633; see also Duckett, 67 F.3d at 748. Thus, “shackles can

be a thumb [on] death’s side of the scale.” Deck, 544 U.S. at

633 (internal quotations omitted). 

Second, shackling is an affront to the very “dignity and

decorum of judicial proceedings.” Id. at 631-32; Howard, 429

F.3d at 851; Duckett, 67 F.3d at 747-48. As the Supreme

Court explained, “[t]he courtroom’s formal dignity, which

includes the respectful treatment of defendants, reflects the

importance of the matter at issue, . . . and the gravity with

which Americans consider any deprivation of an individual’s

liberty through criminal punishment.” Deck, 544 U.S. at 631.

Depriving a courtroom of such dignity undermines public

confidence in judicial proceedings. Id. 

[30] Third, shackles greatly reduce a defendant’s ability to

communicate with counsel and participate in his own defense.

Id. at 631; see also Howard, 429 F.3d at 851; Duckett, 67

F.3d at 747-48. Fourth, and related to the third concern, physical restraints may also confuse and embarrass the defendant,

impairing his mental faculties. Howard, 429 F.3d at 851;

COMER v. SCHRIRO 11167
Duckett, 67 F.3d at 747-48. And fifth, shackles may cause the

defendant physical and emotional pain. Id. For these reasons,

we and the Supreme Court have concluded that unjustified

shackling substantially interferes with a defendant’s right to

a fair and decent trial and sentencing proceeding. 

[31] The foregoing reasons apply with even greater force to

the circumstances of Comer’s sentencing. Comer was presented to the sentencing court not only in shackles, but nearly

naked, with only a blanket covering his genitals, and slumped

to one side in a wheelchair with blood oozing from his head

wounds. His lack of clothing revealed to the court and the

public his numerous and graphic tattoos, which cover most of

his body. And the responses he mustered to the court’s questions were cursory at best. 

[32] This presentation of Comer — shackled, beaten, and

tattooed — certainly increased the perception of his dangerousness. If Comer had been sentenced before a jury, these circumstances would have given rise to insurmountable

prejudice. See Deck, 544 U.S. at 633. Because Comer was

sentenced by a judge, however, this Circuit has concluded that

the risk of prejudice is lessened. See Howard, 429 F.3d at

850. Nonetheless, when a judge is asked to decide whether a

defendant deserves to live or die, the judge, like any jury,

must weigh those considerations that are “often unquantifiable and elusive.” Deck, 544 U.S. at 633. It is hard to believe

that any human being, no matter how well-trained to be

impartial, would be entirely unaffected by the dehumanizing

impact of Comer’s appearance in the courtroom. 

[33] This dehumanizing effect was compounded by the fact

that the final sentencing hearing was one of the few times

Comer had appeared before the judge. Comer did not attend

the pre-sentencing hearing at which aggravating and mitigating evidence was presented. He only appeared briefly before

the court at the beginning of the guilt phase of his trial, then

waived his presence for the rest of the proceeding. Thus,

11168 COMER v. SCHRIRO
Comer’s presence before the court during his final sentencing

hearing was one of the few times the judge had to confront the

individual over whom he held the power of life and death. Yet

the circumstances of this meeting, far from humanizing

Comer, deprived him of his dignity. 

Furthermore, the appearance of this naked, bleeding, shackled man was a severe affront to the dignity and decorum of

the judicial proceedings. We have never before read of a man

being sentenced to death, or even presented to a court, under

such circumstances. Even inmates in solitary confinement

have a dignitary interest in being clothed. See, e.g., Maxwell

v. Mason, 668 F.2d 361, 363, 365 (8th Cir. 1981). If the

court’s formal dignity is a reflection of the importance of the

matter at issue, Deck, 544 U.S. at 631, then preservation of

that dignity is most important when deciding whether a man

lives or dies. The sentencing of Comer without such dignity

or decorum is unacceptable. 

[34] Comer’s condition during sentencing also diminished

his ability to communicate with his counsel. Not only were

his hands bound, but as the jail psychiatrist later testified,

Comer was exhausted, which had an unquantified effect on

his mental processes. And just as shackles may confuse and

embarrass a defendant, so too certainly does being wheeled

into a courtroom while nearly naked and exhausted. Finally,

with respect to the fifth consideration, Comer suffered physical pain from his visible lacerations. 

[35] As the foregoing demonstrates, the due process considerations that militate against the routine use of shackles

during the trial and sentencing of defendants apply with even

greater force to the circumstances under which Comer was

sentenced. If those circumstances had been different — if

Comer had been handcuffed, yet fully clothed and physically

inviolate, when he attended the sentencing — then we would

need to inquire further into the reasons for Comer’s condition

because even shackling may be justified by special circumCOMER v. SCHRIRO 11169
stances such as security concerns. Deck, 544 U.S. at 633;

Howard, 429 F.3d at 851. We cannot conceive of any reasonable justification, however, for escorting a naked and bleeding

defendant into a courtroom for a capital sentencing hearing.

We hold that Comer’s due process rights were violated when

he was sentenced while shackled, nearly naked, bleeding, and

exhausted. 

[36] Additionally, the circumstances of Comer’s sentencing

were so inherently prejudicial and their impact so difficult to

divine from the trial transcript, that, as in the shackling cases,

Comer “need not demonstrate actual prejudice to make out a

due process violation.” Deck, 544 U.S. at 635. When life and

death are at stake, subjective considerations such as the

humanity and dignity of a defendant will always influence the

sentencing decision, whether it is made by judge or jury. The

effect of Comer’s diminished ability to communicate with his

counsel, and the mental impact of his nakedness, exhaustion,

and shackling, are also difficult to measure. Thus, we cannot

find beyond a reasonable doubt that the circumstances of

Comer’s sentencing did not contribute to the sentence he

received. For these reasons, Comer is entitled to a new sentencing hearing. 

III. CONCLUSION

We affirm the District Court’s denial of Comer’s habeas

corpus petition as to the guilt phase of his trial. We reverse

the District Court’s denial of his writ of habeas corpus as to

the penalty phase and remand with instructions to grant the

writ as to the sentence unless Arizona begins resentencing

proceedings within a reasonable amount of time to be determined by the District Court. 

AFFIRMED in part; REVERSED in part and

REMANDED.

11170 COMER v. SCHRIRO
RYMER, Circuit Judge, concurring in part and dissenting in

part: 

We need to — and may only — decide one question:

whether death row inmate Robert Comer is competent to

withdraw his appeal from denial of his petition for writ of

habeas corpus and has done so knowingly and voluntarily. All

of us agree that the answer to that question is yes, based on

what the district court found following a Rees1 hearing that we

ordered. This means that this case is over, because Comer’s

waiver of further review of his habeas claims leaves no live

controversy remaining between Comer and the State of Arizona. 

Nevertheless, the majority reverses on the merits and orders

the writ to issue. In the doing, it thumbs this court’s nose at

the United States Supreme Court, which made clear in Gilmore v. Utah, 429 U.S. 1012 (1976), that courts lack jurisdiction to consider unresolved constitutional issues underlying a

death sentence when the defendant competently and voluntarily waives his right to pursue an appeal; at the district court,

which went all out to conduct a comprehensive evidentiary

hearing and issued an extraordinarily detailed and comprehensive, 90-page opinion setting forth its findings and conclusions on the competence and voluntariness of Comer’s

decision; and at Comer himself, who has repeatedly, competently and intelligently tried for five years to choose what he

wants to do. 

I dissent from this raw imposition of judicial power. 

I

Comer filed a petition for habeas relief and appointment of

1Rees v. Peyton, 384 U.S. 312 (1966) (per curiam) (remanding for the

district court to determine mental competence of a death-row inmate who

sought to withdraw petition for certiorari). 

COMER v. SCHRIRO 11171
counsel on July 19, 1994. Counsel were appointed and eventually the district court determined that he was not entitled to

relief but granted a certificate of probable cause on March 3,

1998. A notice of appeal was filed, but Comer then sent several letters to the Arizona Attorney General, the Arizona trial

judge who had presided over his trial and sentenced him, and

the Arizona Supreme Court indicating that he had not authorized his habeas counsel to file the appeal with this court and

that he wished to terminate their representation. Acting on

these communications, the Attorney General filed a motion to

dismiss Comer’s appeal. Comer also filed a pro se motion to

withdraw his appeal and to terminate habeas counsel’s representation. Rather than rule on these motions on the existing

record, we remanded to the district court so that it could hold

an evidentiary hearing to determine whether Comer was competent to terminate counsel and to forego further legal review,

and to determine whether his decision was voluntary. Comer

v. Stewart, 215 F.3d 910 (9th Cir. 2000) (Comer I). 

The district court appointed special counsel for Comer;

appointed an independent expert (Dr. Sally Johnson, Associate Warden Medical/Chief Psychiatrist of the Health Services Division of the Federal Correctional Complex in Butner,

North Carolina), as well as an expert requested by habeas

counsel (Dr. Terry Kupers, a psychiatrist in private practice)

to evaluate the competence and voluntariness of Comer’s

decision; and toured the prison and inspected the cell where

Comer is now housed in addition to considering the conditions of his confinement from day one. It held a three-day evidentiary hearing at which Comer, the experts, and two prison

officials testified. The district court rendered its decision

October 16, 2002, finding under Supreme Court and Ninth

Circuit law, which it meticulously surveyed, that Comer was

competent and that his decision to withdraw his appeal was

voluntary. 

The court found that Dr. Johnson’s evaluation of Comer

was better supported by the evidence in the record and more

11172 COMER v. SCHRIRO
in accord with accepted psychiatric methods than Dr. Kuper’s.

Based on Johnson’s opinion, the district court found that

Comer does not suffer from depression, post-traumatic stress

disorder, or SHU Syndrome. The court concluded that Comer

is cognizant of the merits of his appeal, of its prospects for

success, and of his ability to change his mind about withdrawing the appeal at any time before this court rules. It found that

Comer’s decision to withdraw his appeal and submit to execution is rational and based principally on his feelings of

remorse for his crimes and his belief that he deserves the punishment society has imposed upon him (despite his personal

opposition to the death penalty). The district court found that

Comer also places great weight on the ability to make this

choice on his own because it is his choice. Finally, the court

concluded that the conditions of Comer’s confinement, while

undeniably harsh, were not so harsh that he had been forced

to abandon a natural desire to live. 

Habeas counsel appealed this decision. Sua sponte, the

majority stayed further action pending the outcome of en banc

proceedings in Summerlin v. Stewart, 267 F.3d 926 (9th Cir.

2001), as to whether Ring v. Arizona, 536 U.S. 584 (2002),

which invalidated Arizona’s scheme of judge-sentencing in

capital cases, was retroactive on collateral review. Comer v.

Stewart, 312 F.3d 1157 (9th Cir. 2002) (Comer II). Once the

Supreme Court definitively ruled that Ring does not apply

retroactively to habeas petitions, Schriro v. Summerlin, 542

U.S. 348 (2004), rev’g Summerlin v. Stewart, 341 F.3d 1082

(9th Cir. 2003) (en banc), the motions to dismiss were ready

for resolution. However, the majority, again sua sponte,

ordered briefing on whether Comer can waive his pending

habeas appeal if the district court erred in denying his original

habeas petition and his constitutional rights were in fact violated during his state trial. Order, January 20, 2005. Habeas

counsel, Comer’s special counsel, and the state complied and

we heard oral argument May 17, 2005. 

We must now answer the question on which we reserved

judgment on June 6, 2000. 

COMER v. SCHRIRO 11173
II

A

Habeas counsel argue that the district court improperly

credited Johnson’s opinions over those of Kupers. However,

the court’s credibility determination is well supported in the

record as Kupers is not trained as a forensic psychiatrist, has

not worked in a correctional setting, and conducted a more

limited examination of Comer than Johnson. They also fault

the court’s finding that Comer did not suffer from depression,

relying mainly on Comer’s writings over the years. While

some of Comer’s letters may exhibit some of the symptoms

of depression, others do not. In any event, the findings are

supported by Johnson’s report, Comer’s own testimony, and

Judge Silver’s observations of Comer in court. The court’s

findings on post-traumatic stress disorder and SHU Syndrome

turn on the absence of depression and are not clearly erroneous for the same reason its conclusion that Comer does not

suffer depression is not. 

Regardless, the court found that Comer has a rational

understanding of his legal options. This plainly appears from

the court’s colloquy with Comer during the evidentiary hearing. He understands his claims on appeal, their chances of

success, the consequences and next steps if his appeal were to

succeed, and what he would do in those circumstances.

Kupers is also of the opinion that Comer has a rational intellectual understanding of his legal options. 

Habeas counsel contend that Comer is nonetheless not

competent to withdraw his appeal because his alleged mental

illnesses prevent him from making a rational choice among

the options. They rely upon Kupers’s opinion to posit that

depression leads to suicidal ideation which causes Comer to

want to drop his appeal and submit to execution. However,

there is no evidence that Comer has ever tried to commit suicide, despite opportunities to do so, or is suicidal. More

11174 COMER v. SCHRIRO
importantly, much the same argument was made and rejected

in Dennis ex rel. Butko v. Budge, 378 F.3d 880, 892-93 (9th

Cir. 2004). To say that an inmate who chooses not to fight

execution does so because he has lost hope and wants to die

is circular. Also, to say that an inmate who chooses not to

fight execution is making an irrational choice misses the point

of Rees, which is not concerned with the rationality of the

decision but with the inmate’s “capacity to appreciate his

options and make a rational choice among them.” Dennis, 378

F.3d at 890.2 There can be no serious question based upon the

record and the district court’s findings that Comer does not

have any mental problem that causes him to be unable to

understand his options or to lack the capacity to make a rational choice among them. 

2Rees articulated the competence question for the district court to determine as “whether [Rees] has capacity to appreciate his position and make

a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease,

disorder, or defect which may substantially affect his capacity in the premises.” 384 U.S. at 314. The Court later confirmed that the phrase “ ‘rational choice’ ” in Rees means nothing different from “ ‘rational

understanding.’ ” Godinez v. Moran, 509 U.S. 389, 398 n.9 (1993); see

also Whitmore v. Arkansas, 495 U.S. 149, 166 (1990) (asking in “next

friend” case whether the prisoner has capacity to have a rational understanding with respect to continuing or abandoning further litigation). We

have adhered to this approach. See, e.g., Dennis, 378 F.3d at 890; see also

Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F.2d

1050, 1057 (8th Cir. 1987) (recognizing inquiry as whether decision of

prisoner under sentence of death to waive post-conviction remedies is the

product of a rational thought process and rejecting argument that waiver

should not be allowed if there is any possibility that the decision is a product of mental disease, disorder or defect); cf. Rumbaugh v. Procunier, 753

F.2d 395, 398-99 (5th Cir. 1985) (breaking the Rees standard into three

questions: (1) is the person suffering from a mental disease or defect; (2)

if so, does that disease or defect prevent him from understanding his legal

position and the options available; (3) if not, does that disease or defect

nevertheless prevent him from making a rational choice among his options

— and noting that if the answer to the first question is no, the court need

go no further because the person is competent). 

COMER v. SCHRIRO 11175
B

In addition to determining whether Comer’s decision to

withdraw his appeal was competent, we specifically instructed

the district court to determine “whether Mr. Comer’s conditions of confinement constitute punishment so harsh that he

has been forced to abandon a natural desire to live.” Comer

I, 215 F.3d at 918. “A waiver is voluntary if, under the totality

of the circumstances, it was the product of a free and deliberate choice rather than coercion or improper inducement.” Id.

at 917 (quoting United States v. Doe, 155 F.3d 1070, 1074

(9th Cir. 1998)). Habeas counsel challenge the district court’s

ruling that the conditions of Comer’s confinement did not

coerce his decision on several grounds, none of which is persuasive. 

First, they point out that Comer got a radio and television

within six months of the evidentiary hearing and speculate

that those privileges will be taken away once this litigation

ends. There is no evidence of this, and Comer himself attributes these improvements to improvement in his own behavior. Next, habeas counsel contend that remorse cannot be the

true reason for Comer’s decision because he opposes the

death penalty. They also assert that it is of recent vintage,

therefore must be a fabrication. However, in response to the

district court’s questions, Comer stated that his views have

changed as he has matured, and he reconciled his personal

opposition to the death penalty with acceptance of his punishment as appropriate for the crimes he committed. The district

court’s exploration of the conditions of Comer’s confinement

and their effect on his decision was exhaustive. It is impossible to be clearly and firmly convinced that its findings are

erroneous. 

In sum, Comer is competent to withdraw his appeal in that

he does not suffer from a mental disease, disorder, or defect

but even if he does, it does not impair his capacity to understand his legal options and to make a rational choice to forego

11176 COMER v. SCHRIRO
further legal proceedings. Further, his decision to withdraw

his appeal is voluntary because it is the product of a free and

deliberate choice and an unconstrained will, uncoerced by the

conditions of his confinement in SMU II. As Comer has competently and voluntarily asked to withdraw his appeal and terminate habeas counsel’s representation, he is entitled to do so.

Accordingly, the Attorney General’s, and Comer’s, motions

to dismiss Comer’s appeal of the denial of his habeas petition

by the district court should be granted. 

III

Having determined that Comer is competent to decide to

withdraw his habeas appeal and that his decision to do so is

voluntary, we lack jurisdiction to take any action with respect

to his pending appeal other than to dismiss it. Habeas counsel

acknowledge in their brief that “the order entered by a majority of the Supreme Court in Gilmore v. Utah, 429 U.S. 1012

(1976), disempowers this court to intervene and stop such an

execution if the person who is to be executed validly waves

[sic] his right to a habeas appeal.” Regardless, they suggest,

Comer’s waiver wasn’t “knowing” because it could not be

“knowing” until it is known what this court will do with his

appeal. They surmise from the majority’s January 20, 2005

order, which asked counsel to assume that the district court

erred in denying Comer’s original habeas petition and that his

constitutional rights were in fact violated during his state trial,

that this court is of the view that Comer should have a new

trial.3 If so, they propose that the way to get a proper waiver

of Comer’s federal habeas appeal is for this court first to

announce its intention to reverse the district court on its reso3

I objected to the majority’s January 20, 2005 order precisely because

its phrasing appeared to telegraph a particular result. As it turned out,

habeas counsel interpreted the order as indicating a “preliminary consideration of the merits” that “left this Court of the view that, if Mr. Comer

waives his appeal, he will be waiving the right to a reversal of the District

Court’s judgment and to a ruling entitling him to a new trial.” 

COMER v. SCHRIRO 11177
lution of Comer’s habeas petition and then to inquire of

Comer whether — with knowledge of that prospect — he

elects to relinquish his right to reversal and a new trial.4

Of course it cannot be gainsaid that if Comer were to know

how his appeal would come out, he would be in a position of

superior knowledge to that which he now has. So would every

defendant who waives his constitutional right to a trial by

entering a plea of guilty be in a position of superior knowledge if he knew in advance precisely how his trial would turn

out. Likewise every defendant who waives his right to be tried

by a jury would know more if he knew before deciding to opt

for a bench trial how he would fare in front of each trier of

fact. There is no question that waiver of any constitutional

right, whether to trial, or direct appeal, to be tried by a jury,

or to be represented by counsel, must be competently and

knowingly, voluntarily, and intelligently made; but no case

has ever suggested that a waiver cannot be knowing if it is not

informed by hindsight. Every defendant has the right to waive

a right so long as the court is satisfied that he is competent

and uncoerced and has taken the relevant considerations into

account. That is clearly the case here. 

Comer was advised by his counsel of the prospects for

reversal on appeal from denial of his habeas petition, and his

testimony at the evidentiary hearing reveals that he was aware

of the prospects and took the probability of reversal into

account in reaching his decision to withdraw his appeal. He

left no doubt that he understood how good a case habeas

counsel thought he had; indeed, Comer testified, they believed

his appeal “likely will be successful as to his death sentence”

and “I think they’re right.” He recognizes that even if his con4Counsel do not comment on whether a truly knowing decision can be

made after the panel’s opinion comes down, or whether it can only be after

the full court acts on a petition for rehearing en banc, or whether it needs

to wait until after the Supreme Court has ruled on a petition for writ of

certiorari. 

11178 COMER v. SCHRIRO
viction for murder is not overturned, he might get a different

sentence. He displays considerable insight into the issues on

appeal and how they are apt to play out. And he has thought

through how he would respond in the event reversal were to

occur. In short, as a matter of fact, Comer’s decision is fully

informed by an understanding of the risks, benefits and consequences of pursuing the appeal. Knowing the odds, Comer

has repeatedly adhered to his choice including, as his special

counsel represented, as recently as the day before argument in

our court. 

No one is entitled to a preview, let alone an advisory opinion, from the court. Habeas counsel appear to acknowledge

this but to argue otherwise, believing they “must assume from

the [c]ourt’s questions that its preliminary examination of the

case has left it confronted with [the] stark reality [that this is

not simply a case involving a death sentence but, ex hypothesi, a case involving an unconstitutional death sentence].”

“Under these circumstances,” they submit, “it is not forbidden

to adhere to that view or to publish it simply because Mr.

Comer may then make a choice to relinquish the consequence

and retroactively moot the constitutional issues.” I disagree on

many levels. 

Nothing should ever be assumed about the outcome of any

case from questions posed by a judge. Questions can be asked

for a host of reasons having nothing to do with any predetermined view of the merits. But even if the questions posed in

this case did signal where those who propounded them were

coming from and might go, habeas counsel, special counsel,

and Comer were well aware of the queries and their implications, yet Comer has persisted in his decision to withdraw his

habeas appeal. Beyond this, the decision that habeas counsel

contemplates is either advisory, in which case it is meaningless, or it is for real, in which case it cannot be ignored. How

Comer could “withdraw” from a final judgment ordering the

writ to issue escapes me. Finally, and most importantly, nothing that the majority, or I, might state or imply on the merits

COMER v. SCHRIRO 11179
can matter because we have no jurisdiction to say anything at

all. 

Gilmore makes this clear. There a “next friend” of Gary

Gilmore, a convicted murderer who had been sentenced to

death, filed an application for stay of execution in the

Supreme Court. The Court noted that she would have had

standing only if Gilmore, who had waived his right to appeal

under state law, was incompetent to do so. The record convinced the majority that he had knowingly and intelligently

done just that. 429 U.S. at 1013. As Chief Justice Burger

observed in an opinion concurring in the Court’s order, Gilmore had full knowledge of his right to appeal, including that

his attorneys believed there were substantial grounds for

appeal, that the constitutionality of Utah’s death penalty statute had not yet been reviewed, and that in his counsels’ view

there was a chance that it would eventually be held unconstitutional. The trial court advised him of his rights. “Gilmore

stated that he did not ‘care to languish in prison for another

day,’ that the decision was his own, and that he had not made

the decision as a result of the influence of drugs or alcohol or

as a result of the way he was treated in prison.” Id. at 1015

n.4 (Burger, C.J., concurring). He also told the Utah Supreme

Court that he opposed any appeal and wished to withdraw the

appeal previously filed without his consent. With the record

establishing a knowing and intelligent waiver of Gilmore’s

right to seek appellate review, the Chief Justice concluded

that the Court was without jurisdiction to entertain the “next

friend” application because there was no present dispute

between Gilmore and the State of Utah. Id. at 1016 (Burger,

C.J., concurring). Justice White dissented on the footing that

“the consent of a convicted defendant in a criminal case does

not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment.” Id. at 1018 (White, J., dissenting). He saw no jurisdictional barrier to addressing the

merits of the “next friend” petition because, in his view, Gilmore could not waive resolution of the serious question concerning the constitutional validity of his death sentence.

11180 COMER v. SCHRIRO
However forceful Justice White’s views may be, they were in

dissent. We are obliged to follow the Court’s order which, as

habeas counsel puts it, “disempowers this court to intervene

and stop such an execution if the person who is to be executed

validly waves [sic] his right to a habeas appeal.”

5

That Comer is seeking to withdraw his habeas appeal himself — rather than a next friend seeking in his stead to stay

execution — is of no moment. Although the jurisdictional

basis for addressing the issue is different because the district

court and we have jurisdiction over Comer’s habeas petition

(until it is withdrawn), whereas a “next friend” must establish

standing to bring the action, the bottom line inquiry is the

same: has the defendant competently decided to forego further

relief in his own behalf. See, e.g., Rees, 384 U.S. at 314; Whitmore, 495 U.S. at 165-66; Dennis, 378 F.3d at 888-89. 

Nor is it consequential that Comer originally appeared to

consent to habeas counsel’s representation and to the filing of

5

See also Evans v. Bennett, 440 U.S. 1301 (1979) (in chambers opinion

by Rehnquist, Circuit Justice, referring “next friend” application to the full

court in light of the dissents in Gilmore but the Court denying it); Lenhard

v. Wolff, 444 U.S. 807 (1979) (same, over dissent by Justice Marshall

asserting in accordance with the Gilmore dissent that the consent of a convicted defendant in a criminal case does not privilege the state to impose

an unconstitutional punishment and that the defendant has no right to

“state-administered suicide,” id. at 815); Hammett v. Texas, 448 U.S. 725

(1980) (per curiam) (granting motion of death-row inmate to withdraw

petition for a writ of certiorari in the absence of any question about his

competence, over dissent reflecting views of the Gilmore and Lenhard dissents, id. at 732 (Marshall, J., dissenting)). 

Circuit cases considering analogous problems are consistent with this

rule. See, e.g., United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir.

March 26, 2005) (holding that once an appeal is voluntarily dismissed,

appellate courts no longer have jurisdiction over the merits of the appeal,

and citing law to the same effect in the Fifth, Sixth and Seventh Circuits);

United States v. Jeronimo, 398 F.3d 1149, 1152-53 (9th Cir. 2005) (recognizing that appellate court lacks jurisdiction to consider merits of an

appeal when there is a valid and enforceable waiver of the right to appeal).

COMER v. SCHRIRO 11181
papers in this court. Comer has moved to discharge habeas

counsel, and the district court found that he was competent to

terminate their representation and that his decision to do so

was voluntary. He explained to the district court that even

though it looked inconsistent for him to file a notice of appeal

that he sought to withdraw, if he had it to do over again,

knowing what he now knows, he would not have appealed.

Comer said that he signed the form at the time for his lawyer,

not because he personally wanted to appeal. Upholding

Comer’s decision to terminate habeas counsel, and to withdraw the appeal even though he had signed onto filing it, was

well within the district court’s discretion. In any event,

whether or not habeas counsel are now terminated (as I

believe they are) and are effectively in the position of a “next

friend,” Comer is not precluded from withdrawing his habeas

appeal simply on account of the fact that he had originally

consented to counsel’s filing it. Otherwise, Rees would not

have come out as it did. There, the petition for certiorari was

filed with the defendant’s consent but he thereafter directed

counsel to withdraw it and to forego further legal proceedings.

In short, we have no right to reach the merits. We must

affirm the district court’s ruling. And I would.

11182 COMER v. SCHRIRO