Robert Charles Comer v. Terry L. Stewart, Director, Department of Corrections

312 F.3d 1157 Robert Charles COMER, Petitioner-Appellant, v. Terry L. STEWART, Director, Department of Corrections, Respondent-Appellee. No. 98-99003. United States Court of Appeals, Ninth Circuit. Filed December 16, 2002. Peter J. Eckerstrom, Esq., Tucson, AZ, Julie S. Hall, Esq., Tucson, AZ, for Petitioner-Appellant. John Presley Todd, Office of the Attorney General, Civil Division, Phoenix, AZ, for Defendant-Appellee. Before PREGERSON, FERGUSON and RYMER, Circuit Judges. Order by Judge FERGUSON; Dissent by Judge RYMER. ORDER FERGUSON, Circuit Judge: 1 Robert Charles Comer is a prisoner of the State of Arizona who is subject to execution. 2 A petition for writ of habeas corpus was filed in his behalf challenging the constitutionality of his state conviction and death sentence. The district court denied the petition and that decision was appealed to this court. The State of Arizona moved and Mr. Comer requested this court to dismiss the appeal. Mr. Comer states that he wants to be executed. 3 This court determined that the motion to dismiss be held in abeyance until the district court determined the validity of Mr. Comer's purported decision to withdraw his appeal. Comer v.…

Order by Judge FERGUSON; Dissent by Judge RYMER

ORDER

Robert Charles Comer is a prisoner of the State of Arizona who is subject to execution.

A petition for writ of habeas corpus was filed in his behalf challenging the constitutionality of his state conviction and death sentence. The district court denied the petition and that decision was appealed to *1158 this court. The State of Arizona moved and Mr. Comer requested this court to dismiss the appeal. Mr. Comer states that he wants to be executed.

This court determined that the motion to dismiss be held in abeyance until the district court determined the validity of Mr. Comer’s purported decision to withdraw his appeal. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000) The district court in accordance with the mandate held an extensive evidentiary hearing. Before the court are the findings that Mr. Comer was competent and his decision to abandon his appeal was voluntary.

In the meantime, the Supreme Court in Ring v. Arizona, 122 S.Ct. 2428 (2002) declared the Arizona Death Penalty Statute unconstitutional. An en banc panel of this court has been drawn in Summerlin v. Stewart, 267 F.3d 926 to determine whether Ring should be…

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,…