dissenting:

There is no excuse for not setting a briefing schedule and date for oral argument on the motions by Comer and the state to dismiss his appeal. No one except the majority disagrees.

In a nutshell: Through counsel, Comer filed an appeal from the district court’s denial of his habeas petition February 13, 1998. On April 6, 2000 the state filed a motion to dismiss Comer’s appeal based on letters Comer had written to the Arizona Attorney General and the state trial judge indicating that he did not want to be represented by counsel and that he wanted to have his appeal dismissed. Comer confirmed this in his own motion to this court on April 12, 2000.

On June 6, 2000 we remanded for an evidentiary hearing on whether Comer is competent to waive his appeal, and if so whether his decision is voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000). We held the motions to dismiss in abeyance “until the district court determines the validity of Mr. Comer’s purported decision to withdraw his appeal to this court.” Id at 918.

The district court went to extraordinary lengths to comply with both the letter and spirit of our mandate. It assured appointment of qualified experts, held an extensive evidentiary hearing at which Comer testified, went on a site visit, and made comprehensive findings and conclusions in a 90-page order issued on October 15, 2002. The court determined that Comer’s decision is competent and has been voluntarily made. The state has requested that we set a briefing schedule, which Comer’s habeas counsel does not oppose, and special counsel for Comer has also requested that we rule on the pending motions.

Entirely on its own, the majority has decided to wait to see whether Ring v. *1159 Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), is retroactive on collateral review. However, what happens to Ring , and whether it is or isn’t retroactive, has nothing to do with Comer’s competence to forego further review and the voluntariness of that decision. Even counsel appointed for Comer recognizes that briefing can proceed in spite of uncertainty about the effect of Ring .

We remanded for the district court to hold an evidentiary hearing on Comer’s competence and the voluntariness of his decision — and it did. The “district court determined] the validity of Mr. Comer’s purported decision to withdraw his appeal to this court.” This is what we held the motions by Comer and the state in abeyance/or.

Comer, the state, and the public are now entitled to a ruling.

I therefore vote to set a briefing schedule and date for oral argument; and dissent from the order refusing to do so.