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

After appealing the District Court’s denial of his 28 U.S.C. § 2254 petition, Petitioner Robert Comer (“Comer”) moved pro se to waive further federal proceedings, to terminate representation by his habeas counsel, and for dismissal of his appeal. A three-judge panel of our court remanded for the District Court to determine (1) whether Comer is competent to waive further proceedings and (2) whether he has chosen to do so voluntarily. See Comer v. Stewart, 215 F.3d 910 (9th Cir.2000). After extensive proceedings, the District *962 Court found that Comer is competent and his decision to waive further proceedings voluntary. See Comer v. Stewart, 230 F.Supp.2d 1016 (D.Ariz.2002).

We review the District Court’s finding that Comer is competent for clear error. See Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir.2001) (per curiam). We assume, without deciding, that we review de novo the District Court’s determination that Comer’s decision to waive further proceedings is voluntary. 1 Accordingly, we must now determine (1) whether the District Court clearly erred in finding Comer competent to waive further proceedings and (2) whether Comer’s decision to waive further…

concurring:

Although I concur in the order dismissing this appeal, I write separately to emphasize that, as part and parcel of the evaluation of whether a petitioner’s waiver is knowing and voluntary, the district court must ensure that the petitioner has an understanding of the viability of his legal claims, particularly if they have some likelihood of success. See, e.g., Godinez v. Moran, 509 U.S. 389 , 401 n. 12, 113 S.Ct. 2680 , 125 L.Ed.2d 321 (1993) (“The purpose of the ‘knowing and voluntary’ inquiry ... is to determine whether the defendant actually does understand the significance and consequences of a particular decision.”); O’Rourke v. Endell, 153 F.3d 560, 568 (8th Cir.1998) (holding that a waiver was not “knowing and voluntary” because “[t]he court never explained to [petitioner] the significance of his decision to waive his postconviction appeal. No one questioned him as to his understanding of the possible results of a successful appeal, which might have included not only a lesser sentence but a new trial with a potentially different outcome.”).

In the section of its ruling entitled, “Legal Position and Options Available and Rational Choices,” the district court…

dissenting:

I dissent for the reasons carefully and eloquently set forth in my brother Judge Warren Ferguson’s majority opinion filed on September 13, 2006. See Comer v. Schriro, 463 F.3d 934 (9th Cir.2006). That opinion, in which I wholeheartedly concurred, was withdrawn by the en banc court on December 29, 2006. See Comer v. Stewart, 471 F.3d 1359 (9th Cir.2006). Judge Ferguson’s opinion states in full:

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. The facts related to Comer’s crime, charges, and conviction are largely taken from the Supreme Court of Arizona’s 1990 decision in this case. See State v. Comer, 165 Ariz. 413 , 799 P.2d 333, 336-38 (1990).

. While Comer's habeas petition was pending, he filed a second petition for state post-conviction relief in state court challenging the constitutionality of his conviction and sentence. On September 22, 1998, the state trial court denied the petition on the ground that Comer's claims were procedurally precluded, and on December 6, 1999, the Arizona Supreme Court denied review.

. Specifically, these claims were: (1) the trial court's failure and refusal to sever counts (Claims I and II), (2) the prosecutor's misconduct in repeating the use of dehumanizing…

480 F.3d 960 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. Submitted March 7, 2007 * . Filed March 15, 2007. 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 the 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 MARY M. SCHROEDER, Chief Judge, HARRY PREGERSON, ALEX KOZINSKI, PAMELA ANN RYMER, ANDREW J. KLEINFELD, KIM McLANE WARDLAW, W. FLETCHER, RAYMOND C. FISHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges. PER CURIAM. 1 After appealing the District Court's denial of his 28 U.S.C. § 2254 petition, Petitioner Robert Comer ("Comer") moved pro se to waive further federal proceedings, to terminate…