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 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 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 *966 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 Medicai/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 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 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (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 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (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.

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 *967 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 Ku-pers’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 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 *968 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.

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 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.

Ill

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 , 97 S.Ct. 436 , 50 L.Ed.2d 632 (1976), disem-powers 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 *969 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 resolution 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 conviction 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. Ha-beas counsel appear to acknowledge this but to argue otherwise, believing they “must assume from the [cjourt’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 *970 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 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, 97 S.Ct. 436 . 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, 97 S.Ct. 436 (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 , 97 S.Ct. 436 (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 , 97 S.Ct. 436 (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.

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

*971 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 Mend” 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, 86 S.Ct. 1505 ; Whitmore, 495 U.S. at 165-66 , 110 S.Ct. 1717 ; 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 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 cer-tiorari 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.

. Rees v. Peyton, 384 U.S. 312 , 86 S.Ct. 1505 , 16 L.Ed.2d 583 (1966) (per curiam) (remanding for the district court to determine mental competence of a death-row inmate who sought to withdraw petition for certiorari).

. Rees 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 , 86 S.Ct. 1505 . 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, 113 S.Ct. 2680 , 125 L.Ed.2d 321 (1993); see also Whitmore v. Arkansas, 495 U.S. 149, 166 , 110 S.Ct. 1717 , 109 L.Ed.2d 135 (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).

. 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.”

. Counsel 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.

. See also Evans v. Bennett, 440 U.S. 1301 , 99 S.Ct. 1481 , 59 L.Ed.2d 756 (1979) (in chambers opinion by Rehnquist, Circuit Justice, referring “next friend” application to the full court in light of the dissents in Gilmore but *971 the Court denying it); Lenhard v. Wolff, 444 U.S. 807 , 100 S.Ct. 29 , 62 L.Ed.2d 20 (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, 100 S.Ct. 29 ); Hammett v. Texas, 448 U.S. 725 , 100 S.Ct. 2905 , 65 L.Ed.2d 1086 (1980) (per cu-riam) (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, 100 S.Ct. 2905 (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.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).