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 That opinion, in which I wholeheartedly concurred, was withdrawn by the en banc court on December 29, 2006.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 epithets to characterize Comer (Claim 111(A)), (3) the prosecutor’s misconduct in using invective during closing argument (Claim 111(B)(1)), (4) the prosecutor's misrepresentation of law and facts during closing argument (Claim 111(C)), (5) the trial court's failure to strike two jurors for cause (Claim V(A)), (6) the trial court’s error in impairing Comer’s exercise of peremptory challenges (Claim V(B)), (7) the Arizona Supreme Court's finding of "helplessness of the victim” as an aggravating factor for sentencing (Claim XIII), (8) defense counsel's failure to undertake an *969 adequate mitigation investigation (Claim XX(C)(4)), and (9) appellate counsel’s failure to raise on appeal any issue raised in Comer’s habeas petition (Claim XX(D)).

. As the District Court noted, the three-part Rees test to determine the capacity of an inmate to make a waiver decision has been simplified as follows by the Fifth Circuit in Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir.1985):

Comer, 230 F.Supp.2d 1016, 1036-37 (quoting Rumbaugh, 753 F.2d at 398-99 ); accord Lonchar v. Zant, 978 F.2d 637, 641-42 (11th Cir.1992); Ford v. Haley, 195 F.3d 603 , 615 (11th Cir.1999).

. The District Court noted that

Comer, 230 F.Supp.2d at 1051-52 (citations omitted)

. Cross-examination of Dr. Krupers included the following exchange:

. [Special Counsel]: You've heard and we’ve talked a lot about what could happen if your habeas is considered by the appellate courts. And I think you have said that you believe, from everything you’ve been told and everything that you’ve read, that you have a good— good prospects for a new sentencing. Right?

. [Special Counsel]: You understand that if the government were to try this case 13 years later or by the time this decision is made, habeas decision is made, and if it was made in your favor, that there would be enormous amount of delay in the proceedings before they tried you?

. [District Court]: And do you also understand that the decision that you [Comer] have made and you have asked this Court to carry out, at least at my level, is the one — one decision which is most fundamental to all human beings, and that's to end your life.

. Comer was incarcerated in Folsom from 1979-1984 and in SMU I from 1988-1996. He has remained in SMU II from 1996 until the present.

. [Comer]: “Yeah. I mean, [SMU II] is still not paradise, but god, you start comparing to Folsom — you compare it just to SMU I there's a big different [sic]. But SMU I was never anywhere close to being what Folsom was.... But we’re talking what, 23 years ago was Folsom. We’re talking SMU I was 15 years ago. And then we’re talking SMU II, that’s — I've been here at SMU II that’s what, six or seven years. And hell, I could tell you differences just two years ago — how much conditions have changed in our prison for all of .us over there. It's gotten better just from two years ago. Not a big major change, like a big major change between Folsom and today, but you can still see it.”

. See Section II.C., infra, "Comer’s Habeas Claims.”

. Because of similar concerns, the state of New Jersey has made mandatory not only direct appellate review, but also at least one round of post-conviction review. State v. Martini, 144 N.J. 603 , 677 A.2d 1106 (1996). The New Jersey Supreme Court explained its decision thus: "For those who wish to understand, we explain that under our form of government it is not the inmate on death row or the accused who determines when and whether the State shall execute a prisoner; rather, the law itself makes that determination. The public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants.” Id. at 1107.

. The State contends that the Court's decision in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), bars retroactive application of Beam to Comer's case. We have held, however, that Teague does not apply to matters of federal habeas jurisdiction, including our exhaustion analysis. Coe v. Thurman, 922 F.2d 528, 533-34 (9th Cir.1991).

. We have recognized the thoroughness of the Arizona Supreme Court’s independent review process in another context. See Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir.1997) (finding that Arizona’s independent review as to the "propriety and legality of the death penalty” justifies counsel's tactical decision to rely on that review instead of independently raising claims related to defendant’s sentencing).

. Specifically, those claims include: (1) the unconstitutionality of the trial court’s failure to follow a statutorily required procedure at a post-competency hearing (Claim VIII), (2) the unconstitutionality of the trial court’s conducting a post-competency hearing in Comer’s absence (Claim IX), (3) the unconstitutionality of the trial court’s sentencing Comer while unclothed and semi-conscious (Claims X and XI), (4) the insufficiency of evidence to support the court’s finding that Comer committed the homicide for pecuniary gain (Claim XII), (5) the Arizona Supreme Court’s failure to consider the cumulative weight of Comer’s mitigation evidence (Claim XIV), and (6) the Arizona death penalty statute's failure to narrow the class of defendants subject to the death penalty (Claim XVI).