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

463 F.3d 934 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 September 13, 2006. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Denise I. Young, Tucson, AZ; Julie S. Hall, Tucson, AZ, for the petitioner-appellant. Michael D. Kimerer, Phoenix, AZ; Holly R. Gieszl, Phoenix, AZ, special counsel for petitioner-appellant. John Pressley Todd, Assistant Attorney General, Phoenix, AZ, for the respondent-appellee. 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. FERGUSON, Circuit Judge. 1 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…

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, *940 aggravated assault, sexual assault, and sexual abuse. Before Comer’s appeal could be heard, however, the State of 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…

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 Rees 1 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 , 97 S.Ct. 436 , 50 L.Ed.2d 632 (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…