Robert Charles Comer v. Dora B. Schriro, Director, of Arizona Department of Corrections

458 F.3d 891 Robert Charles COMER, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, of Arizona Department of Corrections, Respondent-Appellee. No. 98-99003. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 17, 2005. Filed August 10, 2006. Denise I. Young, Esq., Julie S. Hall, Esq., Tucson, AZ, Michael D. Kimerer, Esq., Holly R. Gieszl, Esq., Kimerer & Derrick, PC, John Presley Todd, Office of the Attorney General, Phoenix, AZ, for Defendant-Appellee. Peter J. Eckerstrom, Esq., Tucson, AZ, for Petitioner-Appellant. Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-94-01469-ROS. Before HARRY PREGERSON, WARREN J. FERGUSON, and PAMELA ANN RYMER, Circuit Judges. ORDER 1 Appellant Comer's pro se motions received February 3, 2006, are ordered filed and are hereby denied. 2 FERGUSON, Circuit Judge, with whom PREGERSON, Circuit Judge, joins, concurring: 3 Judge Rymer is correct in setting forth the tortured history of this case. The case creates an issue that denigrates constitutional rights, thus the delay in reaching a decision. 4 Comer wants to be executed. I maintain that the…

ORDER

Appellant Comer’s pro se motions received February 3, 2006, are ordered filed and are hereby denied.

with whom PREGERSON, Circuit Judge, joins, concurring:

Judge Rymer is correct in setting forth the tortured history of this case. The case creates an issue that denigrates constitutional rights, thus the delay in reaching a decision.

Comer wants to be executed. I maintain that the right to die is not synonymous with the right to kill. Comer’s appointed habeas corpus counsel demonstrated serious due process violations by the judicial system against Comer that must be answered. The most troubling incident being that at his sentencing hearing in state court, Comer was brought into the courtroom battered, shackled, and naked except for a towel over his genitals.

dissenting:

After Comer’s habeas counsel filed a notice of appeal from denial of his petition for a writ of habeas corpus on February 13, 1998, he sought to terminate counsel’s representation and to withdraw his appeal. Acting on Comer’s requests, the state moved to dismiss in April 2000. On June 6, 2000 we remanded to the district court for an evidentiary hearing on whether Comer was competent to do this, and to determine whether his decision was voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000) (Comer I). The court held a three-day evidentiary hearing and rendered its decision October 16, 2002 finding that Comer was competent and that his decision to withdraw his appeal was voluntary. Comer v. Stewart, 230 F.Supp.2d 1016 (D.Ariz.2002).

*892 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 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), was retroactive on collateral review. Comer v. Stewart, 312 F.3d 1157 (9th Cir.2002) (Comer II). I disagreed with this order, id. at 1158 , but regardless, once the…