Comer v. Schriro

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2006
• Docket: 98-99003
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT CHARLES COMER,  Petitioner-Appellant, No. 98-99003 v. DORA B. SCHRIRO, Director, of  D.C. No. CV-94-01469-ROS Arizona Department of ORDER Corrections, Respondent-Appellee.  Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Argued and Submitted May 17, 2005—Pasadena, California

Filed August 10, 2006

Before: Harry Pregerson, Warren J. Ferguson, and Pamela Ann Rymer, Circuit Judges.

Order; Concurrence by Judge Ferguson; Dissent by Judge Rymer

ORDER

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

9339 9340 COMER v. SCHRIRO FERGUSON, Circuit Judge, with whom PREGERSON, Cir- cuit Judge, joins, concurring:

Judge Rymer is correct in setting forth the tortured history of this case. The case creates an issue that denigrates constitu- tional 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 vio- lations by the judicial system against Comer that must be answered. The most troubling incident being that at his sen- tencing hearing in state court, Comer was brought into the courtroom battered, shackled, and naked except for a towel over his genitals.

RYMER, Circuit Judge, 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).

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 (2002), COMER v. SCHRIRO 9341 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 Supreme Court definitively ruled that Ring does not apply retroactively to habeas petitions, Schriro v. Summerlin, 542 U.S. 348 (2004), rev’g Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (en banc), there was no excuse for not ruling on the state’s motion to dismiss. However, again sua sponte, the majority on Janu- ary 20, 2005 ordered the parties to brief 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. They did, and we heard oral argument on May 17, 2005.

We are now mid-way through 2006 without a ruling on the motions on which we reserved judgment on June 6, 2000. More than a year has gone by since oral argument. Not sur- prisingly, Comer has filed papers complaining about this court’s inaction. He repeats the request that his habeas law- yers be removed, and that all papers filed by habeas counsel since November 2000 be striken. Comer asks that this panel either rule or turn the case over to another panel. The state agrees that the court should expeditiously rule on the matter before it.

So do I. There is no reason for not ruling; we have had plenty of time to give full and fair consideration to all sides of all issues. Comer and the people of Arizona are entitled to a decision, and we have a duty to render one. See In re Blod- gett, 502 U.S. 236, 239 (1992) (per curiam). PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2006 Thomson/West.