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

III. Conclusion COMER, Robert Petitioner- Charles foregoing, we hold that

Based on the Appellant, may qualify payroll LTD Plan as a Xerox’s v. it than Bas- practice though pays even less Director, SCHRIRO, Dora B. of Ari- salary. full Because the district siri’s Corrections, Department zona contrary conclusion on court reached a Respondent-Appellee. question, it did not consider whether No. 98-99003. qualified the LTD Plan otherwise Appeals, United States Court payroll practice. therefore remand We Ninth Circuit. consider, the case for the district court to instance, Xerox’s LTD the first whether 17, Argued May and Submitted 2005. exempt payroll practice Plan is fact a Sept. Filed from ERISA. AND REMANDED.

REVERSED id.; by exercising plan. jurisdiction ERISA See v. & Decker Nord Black the court has Plan, (9th Disability rejected every jurisdictional Cir. considered and 2002). Nord, argues argument party might Xerox that each court has an that a raise. In Thus, obligation jurisdiction. to consider its argued party plan pay- that the neither jurisdiction, because both courts exercised practice question they any roll nor did raise Xerox asks us to conclude that both the Su jurisdiction as to the Neither of the court. preme Court and this court must have decid any court showed it indication that consid- plan plan ed that its was a covered under plan payroll practice. ered whether the was a payroll practice. ERISA and that it was not a Accordingly, presume we will not that the decided, silentio, courts considered and sub assuming plans Even that the at issue are payroll practice exception that the did not materially indistinguishable from the one at apply. here, See United States v. L.A. Tucker Truck argument presumes this issue too much. Lines, Inc., obligation A court has an to consider its own (1952) (''[A should, L.Ed. 54 is not bound jurisdiction, court] sponte, sua raise prior jurisdiction exercise of in a case where jurisdiction. doubts it has about its See WMX Miller, questioned passed Tech. it was not and it was sub Inc. F.3d Cir.1997). however, silentio.”). presumed, It cannot be Tucson, AZ;

Denise I. Young, Julie S. Hall, Tucson, AZ, for the petitioner-appel- lant. Kimerer, Phoenix, AZ;

Michael D. Holly Phoenix, AZ, Gieszl, special R. counsel for petitioner-appellant. Todd, Pressley Attorney

John Assistant General, Phoenix, AZ, respondent- for the appellee. PREGERSON,

Before HARRY FERGUSON, and WARREN J. PAMELA RYMER, Judges. ANN Circuit FERGUSON, Judge. Circuit prisoner, Arizona death row Robert (“Comer”), appealed Charles Comer District denial of his 28 Court’s U.S.C. § petition challenging 2254 habeas his con- capital viction and sentence for first de- murder, gree robbery, kidnapping, armed assault, assault, him in the It is sexual and head. unclear whether aggravated gun- Pritchard immediately died appeal Before sexual abuse. Comer’s however, shot wound or later on. Comer later heard, the State of Ari- could be “State”) stabbed him the neck. Comer then (the and Comer filed motions zona Emergency removed an Medical Techni- ex- appeal to dismiss the because Comer (“EMT”) badge cian from Pritchard’s to be On desire executed. pressed body hid pocket, and Pritchard’s Willis Court, the District Court remand from this murder, it covering with wood. After the evidentiary hearing and found held Comer and Willis drove to Pritchard’s competently and voluntari- Comer have campsite, they a number where stole of appeal right. Habeas ly waived his habeas as belongings, dog. Pritchard’s well as his challenges now that determination Counsel appeal. then proceeded Comer and Willis Smith, campsite of Jones Richard Jane and agree with the District Court that We campers they whom had met earlier that competently voluntarily waived Comer day. Remembering from en- their earlier right. By appeal upholding his habeas in pos- counter that and Smith were Jones however, waiver, would we marijuana, of quantity session a small permitting the State execute Comer “Arizona posed Drug Comer Willis any meaningful appellate without review of officers, Enforcement” ordered them claims, previously filed federal habeas at gunpoint. out of their tent Comer to a which would amount violation badge tied up flashed EMT and then to the Eighth Amendment U.S. Constitu- tape. duct Jones Smith wire and deny tion. We therefore the State’s and truck putHe them their and stole sever- Comer’s motions dismiss the al items from their tent. to review the District de- proceed Court’s Comer then drove Jones’s and Smith’s petition. nial Comer’s federal habeas truck, while Willis followed behind his. We hold that Comer’s sentence was in- time, stopped After a short Willis following grant valid and hereby writ Comer. When Jones asked to relieve her- corpus based on violation of Comer’s self, permitted her to do so but process rights due occurred when he accompanied into the and her woods sexu- nearly was sentenced to death while ally sexually He assaulted her. then as- naked, shackled, bleeding, and exhausted. in again saulted her front of the truck. to kill but threatened Smith Jones I. FACTUAL AND PROCEDURAL convinced him not to do in- so. Comer BACKGROUND1 left stead Smith the woods and drove off Grime with Jones. the truck ran out When gas, Comer and Jones to Wil- walked back deeply The facts of this case are disturb- lis, and the three of them then drove to- Comer, ing. companion Juneva Willis gether, along with two Willis’s children. (“Willis”), two and Willis’s children arrived During journey, this Comer shot killed Burnt campground Apache at the Corral sexually Pritchard’s dog, abused Jones Lake, Arizona on February 1987. The twice more. next evening, nearby Comer invited a Pritchard, camper, Larry to dine with him managed escape Jones while Comer Willis, and, meal, fixing after the picked Comer shot was his truck. She later was crime, Comer, charges, 1. The facts related Comer's this case. See State v. 165 Ariz. largely (1990). and conviction are taken from the 799 P.2d 336-38 Supreme Court of Arizona's 1990 decision in up by passing motorist and taken to the ble body. abrasions on his After asking Smith, too, both the court managed deputy prison sheriffs home. had and a psychi- atrist conscious, whether Comer was Burnt camp- to walk back to the Corral judge state trial sentenced him to death ground reported and had incident for the murder of Pritchard and to aggra- Department Safety. of Public vated, consecutive terms of imprisonment police quickly apprehended Comer and for the other offenses. Willis. On appeal, direct Supreme Arizona

Charges Court affirmed the convictions and sen- charged Comer and Willis were in Mari- Comer, tence. 799 P.2d at 350. copa County with the first degree murder State Post-Conviction Relief robbery and armed of Pritchard and the 24, 1991, On October Comer filed peti- robbery, kidnapping, aggravat- armed post-conviction tion for relief in state court ed assault of Jones and Smith. In addi- challenging constitutionality of his con- tion, charged Comer was with two counts viction and sentence. On November of sexual abuse and three counts of sexual superior court petition denied the assault of Jones. Willis subsequently pled on the ground that Comer’s claims were guilty to one count of kidnapping ex- largely precluded and waived. The Ari- change agreeing for testify against Supreme zona petition denied the charges against Comer. The other her 21, 1993, for review on September and the dropped. were petition Court denied the Convictions and Sentence 4,1994. for certiorari on April Comer was absent from the courtroom Federal Habeas Corpus Petition throughout his 1988 state trial capital for 19, 1994, July On Comer filed a federal days murder. After seven of hearing evi- petition habeas corpus with the District dence, jury guilty found Comer on all Court of Arizona. He later filed an counts. petition amended March on 1995.2 On physically present Comer was in the 2, 1996, August the District Court found courtroom for day the first time on the that Comer procedurally had defaulted sentencing. He was shackled to a I, II, all his except habeas claims Claims and, wheelchair except draped a cloth III(C) (in 111(A), 111(B)(1), V(A), part), genitals, over his he body was naked. His V(B), XIII, XX(C)(4), XX(D), which slumped to one side and his head largely concerned errors trial and inef- drooped toward his shoulder. He had visi- fective assistance of defense counsel.3 The (Claim 2. petition pending, epithets 111(A)), While Comer’s habeas was to characterize Comer petition (3) post-con- he filed a second prosecutor’s for state using the misconduct in in- challenging (Claim viction relief in state court during closing argument vective constitutionality 111(B)(1)),(4) of his conviction and sen- prosecutor’s misrepresenta- 22, 1998, September tence. On the state trial during closing argument tion of law and facts petition ground (Claim court denied the 111(C)),(5) on the the trial court's failure to procedurally precluded, Comer's claims were (Claim V(A)), (6) jurors strike two for cause 6, 1999, and on December Su- Arizona impairing the trial court’s error in Comer's preme Court denied review. (Claim peremptory challenges exercise of V(B)), (7) Supreme the Arizona Court's find- (1) Specifically, “helplessness 3. ag- these claims were: the trial of the victim” as an (Claim XIII), gravating court’s and sentencing failure refusal to sever counts factor for (Claims II), (2) (8) prosecutor's I and miscon- defense counsel’s failure to undertake an (Claim repeating dehumanizing duct adequate mitigation investigation the use of order, the District Pursuant our the merits considered District Court 1997, evidentiary hearing conducted an and, Court November on claims these discov- Following 2002. extensive March petition. habeas denied Comer’s the District ery three-day hearing, this Court Appeal to opinion that 90-page in a Court found filed Comer February On habeas competent to waive his was Comer peti- of his habeas timely notice of denial waiver was made right and that his appeal jurisdiction to hear has tion. This Court appealed the voluntarily. Habeas Counsel to 28 U.S.C. pursuant appeal Comer’s to this Court. judgment Court’s District § 2253. issuing briefing schedule delayed We Appeal Motion to Dismiss Intervening decided Schriro until the Court let- Comer sent filing appeal, his After Summerlin, 348, 124 S.Ct. 542 U.S. v. and to Attorney General to the State ters (holding that 159 L.Ed.2d 442 stating that he no judge the state trial Arizona, 584, 122 S.Ct. v. Ring appeal to be heard longer wanted his (2002), 2428, 153 apply did not L.Ed.2d 556 light In to die. expressing his desire final di retroactively already on cases letters, moved to dismiss the State these review). rect that this Court contending appeal Comer’s any aspect jurisdiction to determine lacked II. DISCUSSION pro filed a himself also of the case. Comer Validity A. The Waiver’s appeal. Comer’s se motion to dismiss Habeas originally appointed counsel—now Background opposed both State’s Counsel— the District to hold We asked Court and asked this Court Comer’s motions whether evidentiary hearing to determine the validi- procedure to determine order ap- his habeas competently Comer waived September On ty appeal. of Comer’s order, to our peal right. Pursuant Special appointed the District Court parties suggested District to both concerning represent Comer Counsel appoint- expert that a neutral evaluator appeals proceed his decision to end competency at the ed to assess Comer’s to execution. right, appeal time he waived Hearing Evidentiary suggest confer and parties and that allowed to va- candidates. The District Court subsequently decided This Court every place parties both to have access argument for oral cate the date incarcerated. The had lived while appeal and held Comer merits of Comer’s findings of fact abey- proposed submitted parties motion to dismiss Comer’s law, parties conclusions of and both held an evi- ance until the District Court object pro- other’s were allowed to to each separate questions dentiary hearing on The Dis- posed findings and conclusions. competent to termi- of whether Comer ostensibly undertook com- trict Court thus by counsel and waive representation nate adequate and, so, steps to ensure an prehensive if his condi- legal review whether compe- deci- factual determination confinement rendered those tions of Stewart, tency at the time he waived his habeas voluntary. sions Cir.2000). (9th appeal right. F.3d 910 (Claim XX(D)). XX(C)(4)), (9) petition appellate counsel’s failure issue raised in Comer's to raise on question before the District Court waive appeal right his habeas is a strictly whether, giving was full and fair consider- factual accept one that we clearly unless evidence, to all it ation could be erroneous. Massie ex rel. Kroll v. Wood- (9th by preponderance ford, 1192, Cir.2001) established of the evi- 244 F.3d Baal, dence that is competent (citing 731, waive Demosthenes v. 495 U.S. 735, legal further review his convictions and 110 S.Ct. 109 L.Ed.2d 762 (1990)). Specifically, sentences. we directed the The District Court rendered sev District Court determine “whether eral preliminary determinations to come to capacity appreciate po- [Comer] has his its conclusion that Comer competent was sition and make a rational choice with re- when he waived his habeas appeal right. spect continuing abandoning further analyze preliminary We each determina litigation or on the other hand whether he briefly tion here to assess whether or not disease, suffering is from a mental disor- it clearly erroneous. der, or may substantially defect which af- First, the District Court deter Comer, capacity fect his in the premises.” mined that its own court-appointed expert, (quoting Peyton, 215 F.3d Rees v. Johnson, Sally Dr. was significantly more 312, 314, qualified to competency render a opinion (1966) curiam)).4 L.Ed.2d 583 (per In ar- than Habeas expert, Counsel’s Dr. Terry determination, riving at this the District Comer, Krupers. F.Supp.2d at 1039. evaluations, Court reports, reviewed testi- The Court based this determination on mony psychiatrists from two psy- and one evidence as to experts’ qualifications, chologist, personal background, in particular that, on the fact unlike Dr. testimony and other witness and exhibits Johnson, Krupers Dr. had engaged never

to conclude that Comer did not suffer from in a forensic evaluation to determine the Comer, mental disease or defect. See competency of an inmate to be executed F.Supp.2d at 1061. previously nor conducted a forensic evalua tion of an inmate sentenced to death who Analysis

2. wanted to dismiss appeal. his Id. More Competency a. over, the Court found Dr. Johnson’s inves The District Court’s tigation thorough determination to be questions and her as to whether Comer was competent especially relevant. Id. at 1040. Given noted, three-part As the District making among rational choice options? capacity Rees test to determine the of an in no, question If the answer to the first mate to is make a waiver decision has been further, go person court need no is simplified as follows Fifth Circuit in competent. If both the first and second Procunier, Rumbaugh v. 753 F.2d 398-99 affirmative, questions are answered in the (5th Cir.1985): person incompetent is and the third (1) person suffering Is the from a mental question need not be addressed. If the first disease or defect? question yes is answered and the second (2) person suffering If the is from a mental no, question question is answered the third defect, disease or does that disease or defect determinative; yes, person is if is in- prevent understanding legal him from no, competent, person compe- and if is position options and the available to him? tent. person suffering If the Comer, from a mental F.Supp.2d (quot- 1036-37 disease or prevent defect which does 398-99); ing Rumbaugh, 753 F.2d at accord understanding legal position Zant, him from Lonchar v. 978 F.2d 641-42 him, options Cir.1992); and the available to does the Haley, Ford defect, nevertheless, (11th Cir.1999). prevent disease or him diagnoses, in expert qualifications such the District Court did not

the clear difference clearly in Krupers, concluding err Comer did Dr. Johnson and Dr. as between Major from Depressive not suffer Disor- relatively superior Dr. Johnson’s well as der. clearly err the Court did not investigation, Dr. John- affording greater weight to Third, the District Court deter opinions. son’s mined that Comer did not suffer from (“PTSD”). Disorder Post-Traumatic Stress

Second, Court deter District The Court based this determination on Dr. that Comer not suffer from mined did Krupers’s inability apply accurately to Major Depressive Disorder. The Court In particular, criteria for DSM-IV PTSD.5 accuracy this determination on based questioned Krupers’s the Court Dr. failure diagnoses of of Dr. Johnson’s differential identify to evidence with respect credible apparent depressive epi Comer’s various group symptoms to the third of PTSD respect with to Com Specifically, sodes. related to arousal.” “increased Id. apparent depressive episode in er’s first Court, According 1052. Dr. Kru to 1999, the as credible Dr. May Court found to pers needed with establish sufficient attempt distinguish to the differ Johnson’s certainty that Comer suffered from or two diagnosis of from the ential bereavement the following symptoms more of related Dr. symptoms Krupers attributed (1) difficulty “increased arousal”: falling or episode. at 1042- major depressive See id. (2) staying asleep; irritability or outbursts respect ap 43. With Comer’s second (3) (4) anger; difficulty concentrating; parent depressive episode Spring hypervigilance; exaggerated star found as credible Dr. Johnson’s the Court response. however, Krupers, tle Id. Dr. distinguish diag attempt to the differential merely speculated prisoners that “most a general nosis of medical condition from difficulty situation” would have [Comer’s] symptoms Krupers Dr. attributed falling asleep to rebut Dr. and failed John major depressive episode. to a See second testimony son’s Comer’s as factors Finally, respect id. at 1043-44. (5). (4) and Id. While it is unclear from apparent depression be Comer’s bouts of opinion just the Court’s narrowly how purported two episodes, tween his defined, are DSM-IV criteria for PTSD Court found as credible Dr. Johnson’s ex clearly the District Court did not err in planation that Comer attention sought dismissing as Dr. unspecific Krupers’s fac feelings narrating his and that he did not applications tual of the criteria to Comer’s deny symptoms of depression, Dr. symptoms. Krupers argued. had id. at 1047-48. See failure of Krupers Given the Dr. to assess Lastly, the District Court deter possible differential diagnoses mined not suffer Comer did (“SHU”) depressive and the apparent episodes, con Segregated Housing syn Unit which fidence with Dr. Johnson attested to drome. Court this determina- based 'nightmares’.... The District noted that backs' and The second group symptoms require [ajpart experience, pa- . . . that a from some traumatic groups '[p]ersistent[ly] the DSM-IV three tient avoid[s] describes stimuli associ- PTSD, symptoms for and one or more of ated with the trauma.' ... [The third group patient each must be suffered group symptoms[requires] per- of] that the diagnosis establish a of PTSD. The first experiences son 'increased arousal' not group symptoms patient that the is present before trauma. 'persistently reexperienc[ing]' the traumatic Comer, (citations 230 F.Supp.2d at 1051-52 specific in at least event one of various omitted) ways[,including recurring severe] ‘flash-

945 tarily tion on Dr. Johnson’s and Comer’s testi- waived his appeal right. habeas See mony contradicting Krupers’s findings Dr. Amano, United States 229 F.3d concerning syndrome. SHU Id. at 1057. (9th Cir.2000). accepted

The Court identified and the fol- We directed the District Court to deter- lowing symptoms characteristic of SHU mine “whether purported [Comer’s] deci- syndrome: anxiety, free-floating massive sion legal [to waive further is vol- review] derealization, hyperresponsiveness, diffi- untary” and “whether [Comer’s] conditions culty memory, with concentration and states, confinement punishment acute confusional ideas of reference constitute so persecutory (paranoia), idealation harsh he has been forced to abandon compulsion. Id. at 1056. The Court then Comer, a natural desire to live.” 215 F.3d findings affirmed Dr. Johnson’s that Com- at 917. The District Court determined symptoms er did not exhibit these at all or voluntary Comer’s waiver was necessary at least not to the level to make the conditions of his confinement adequate showing of SHU. See id. at “have not had a substantial effect nor have 1057. they rendered his decision involuntary.” particular importance Of to the District Comer, F.Supp.2d at 1071. prior Court was Dr. Johnson’s work with previously We legal summarized the patients in segregated housing units and standard to determine voluntariness of the fact that testimony Comer’s own did waiver: not corroborate Dr. Krupers’s findings. though Krupers qualified Id. Even Dr. Court has held that a disorder, opinion offer his on the he did waiver of a petitioner’s “right pro- prior experience have in diagnosing or unless, ceed” is not among valid other treating inmates who suffered from SHU factors, it “knowing, intelligent, and syndrome in way that Dr. Johnson Arkansas, voluntary.” Whitmore v. had.6 While this fact alone does not ren- 149, 165, der Dr. findings Johnson’s more accurate added). L.Ed.2d (emphasis than Dr. it Krupers’s, does make it more if, “A voluntary waiver is under the to- difficult to find the Court’s determination tality circumstances, was the [it] syndrome Comer did not have SHU product of a free and deliberate choice clearly erroneous, particularly since than improper rather coercion or induce- rigorous there are no DSM-IV criteria for Doe, ment.” United States v. 155 F.3d diagnosing syndrome. SHU See id. (9th Cir.1998). 1070, 1074 Put different-

1055. ly, involuntary a decision is if it stems sum, In preliminary the District Court’s from coercion—either mental physi- erroneous, clearly determinations are not See, States, e.g., Brady cal. v. United demonstrating that the Court did not 742, 754, clearly determining err that Comer (1970). Indeed, L.Ed.2d 747 courts have competently waived his recognized that a decision to waive the right. pursue legal remedies is invol- b. Voluntariness duress, if it untary results from includ- See, e.g., conditions of confinement.

We review de novo the District Armontrout, Court’s determination that Comer volun- Smith v. Krupers prison Cross-examination of Dr. included treat inmates in who suffer from what "Q: Doctor, No, following exchange: you you syndrome? do term SHU A: I don’t." in were Cir.1987) my in case and that we merits (reviewing for er

1058-59 Circuit.”). fully in- Counsel Special determination Ninth court’s the district ror re- possibly that he could particular condi formed Comer petitioner’s whether trial, or his deci or a new rendered a new sentence of confinement ceive tions ... involuntary); were appeals guilty, appeal not if his to waive found sion even be Dutton, in- rel. Harries Counsel further Special ex heard.7 Groseclose to be (“In (M.D.Tenn.1984) 949, 961 be much F.Supp. that it would formed Comer Court, condi of this judgment retry him because for the tougher State on Mr. inflicted of confinement tions in delay proceedings.8 of the amount they have adverse that are so Harries Moreover, Special informed Com- Counsel post-conviction his him to waive caused change his he would not be able er that involuntarily”). remedies appeal his habeas once he waived mind you Do understand Comer, (“[Special Counsel]: 215 F.3d at 917-18. drop your appeal you that if are allowed record, it clear that Comer’s From the it may not be allowed to reinstate you that of a free and delib- “product was a waiver you change your if mind? afterwards Doe, at 1074. At erate choice.” sir”). Yes, Perhaps signifi- most [Comer]: clearly evidentiary hearing, ex- itself made clear cantly, the District Court willingness to withdraw pressed to waive his that his decision to Comer fact that Habeas in appeal spite necessarily and would was his own appeal him that his had informed Counsel this, all Com- (“Julie Despite in his death.9 result [Hall] of success strong prospect understood stressed how he good repeatedly er and said I had some real came down made, made and if it was we’ve habeas decision is You've heard and [Special Counsel]: 7. favor, your a lot about that would be enormous talked there delay proceedings before your in the happen if habeas is consid- amount of what could you appellate courts. And I think they you? ered tried believe, everything you said that have be, yes, It could ma'am. [Comer]: everything you've you've told and that been you [Special And understand that Counsel]: read, prospects you good good that have — long period of time memories fade over sentencing. Right? for a new government— and the Yes, ma'am. [Comer]: Yes, ma'am. [Comer]: [Special So that would mean—if Counsel]: [Special often much harder Counsel]:—it's you sentencing, do you got a new—another government prove their case. understand, then, may get you not Yes, ma'am. [Comer]: penalty? death Yes, time? And [Special Counsel]: second ma'am. [Comer]: —the destroyed you may get a could be and wit- [Special And even that evidence Counsel]: disappear could die? new trial. nesses could or Yes. [Comer]: Yes. [Comer]: you [Special You could Counsel]: [Special And those witnesses Counsel]: could— guilty your verdict in favor and have not you your re- were vital in trial —and who street, right? you'd be out on the your trial. member No. [Comer]: Yes. [Comer]: Why [Special not? Counsel]: may be around. [Special Counsel]:— people put all the I wouldn't [Comer]: quite possible. [Comer]: That's there, just go up through another trial. I’d guilty.... to it. plead There's no sense you do also under- Court]: And 9.[District already I mean. I've been law- That’s what you have [Comer] stand that the decision fully convicted. carry you Court to have asked this made out, level, my at is the one—one least if [Special You understand that Counsel]: to all decision which is most fundamental years try government were to this case 13 made, your beings, life. and that’s to end human the time this decision is later consequences of with- tion of significance the DOC about his degree of appeal, dangerousness and nevertheless want- drawing his the foreseeable future. See, (“I, heart, e.g., my He personally ed to do so. opinion verbalizes own my denial of appealed security precautions [the have not the extra are this.”). petition]. appealed any I never warranted in his case and takes some enjoyment in persistently attempting to record, it From the is also clear succeed in circumventing security inter- not “improperly] Comer’s waiver was ventions made the DOC. induced” based on the conditions of his Krupers reports: Dr. Doe, confinement. 155 F.3d at 1074. Mr. Comer feels compelled, symp- as a First, in pris Comer’s own violent actions disorder, tom of his mental to continual- on have contributed to his con continued shanks; ly manufacture his do- [metal] in finement restrictive conditions. Both gives so the DOC a rationale for Krupers’s Dr. Johnson’s and Dr. clinical requiring he live in ever more restrictive evaluations make this apparent. Dr. John conditions; and extremity of his con- reports: son ditions of confinement in turn exacer- of in- Review Mr. Comer’s behavioral bate the mental disorder that is re- (incident reports) fractions over the last (in in part) flected the compulsion to years major shows numerous .... psy- manufacture shanks [Comer’s] approximately minor violations. He had behaviors, chologically compelled to wit possession a dozen violations for shank-manufacturing and threatening of a In weapon. manufacture almost all staff, prevent him gaining even making cases this involved the of shanks improvements modest in his actual con- or at knives. On least two occasions he ditions of confinement. set fires in his cell.... He had several Based on Comer’s own willful and violent property violations destruction of or actions, it is difficult to see how the State . tampering equipment -... On one acted in him improperly placing in maxi- occasion he was involved in an actual and, mum confinement importantly, more attempted assault on another individual his (another inmate). how conditions confinement have improperly waiving coerced him into gradually, [Comer] has as the result of appeal. behavior, developed a reputation Second, being within the Arizona DOC as their the conditions Comer’s con- highest security risk and in danger- Department most finement the Arizona (ADOC) ous inmate. Special Management His intermittent manufac- Corrections (SMU) weapons II, harsh, ture of and periodic impulsive certainly Unit while are responses perceived verbal that are more than as no restrictive the conditions of threatening, unlikely make it that he in I his confinement SMU and California’s Prison,10 in changing percep- they unique would succeed Folsom nor are Yes, [Comer]: ma'am. Constitution. And we all have an obli- gation nobody You understand that? [District Court]: to ensure that does that un- Yes, ma'am, they fully [Comer]: I do. less have understood the conse- [District Court]: At least that's considered quences. You understand? Yes, to be the most fundamental decision that ma'am. [Comer]: anyone country. can make in this You un- 10. Comer was incarcerated in Folsom from derstand that? Yes, ma'am. 1979-1984 and in SMU I from 1988-1996. [Comer]: And He has remained in SMU II from 1996 until [District Court]: it’s embodied in throughout present. Constitution. You find it per- ference between death and other Comer himself estimates Comer. in II is prison cell SMU twice one-person punishment, missible form of ‘there is a in two-person cell Folsom large as his in the need for corresponding difference (“[I]f my and cut it you took cell now reliability in the that death determination half, bigger than our it would still be specif- in a appropriate punishment is the ” Folsom, had and at Folsom we two cells ic Zant v. Stephens, case.’ there”). sitting He further notes people 884-85, 103 S.Ct. 77 L.Ed.2d 235 clean, II is more easier see SMU North (quoting Woodson v. Car- of, dangerous quieter, out and less olina, 280, 305, I. II is “heav- than Folsom SMU SMU (1976)). “By protecting L.Ed.2d 944 even compared to with “much ni- en” “Folsom” crimes, those convicted of heinous ... conditions of confinement.”11 cer duty Amendment Eighth reaffirms references other inmates were Comer how to government respect dignity of “supermax confined units” SMU II Simmons, persons.” Roper all v. 543 they posed high as equally and how a 551, 560, 1183, 125 161 U.S. S.Ct. L.Ed.2d security He defines risk Comer. (2005). 1 context of conditions confinement inmate, and his what he fellow Robert Eighth provides: The Amendment (“Bonzai”), coming Wayne Vickers had to required, bail “Excessive shall not be nor (“You Wayne them had me and Robert imposed, fines excessive nor cruel un Vickers, everything Bonzai. earned We Const, punishments usual U.S. inflicted.” II], man, got [at we there SMU that’s how added). pro amend. VIII Its (emphasis there”). gotwe apply through tections the states Thus, because Comer’s waiver was Fourteenth Furman Amendment. v. product “the of a free and deliberate 239-40, 238, Georgia, 408 U.S. 92 S.Ct. choice rather than or improper coercion (1972). 2726, 33 L.Ed.2d 346 death “[T]he Doe, inducement,” 1074, 155 F.3d at penalty differently has been from treated District Court did not err in determining punishments” all other insofar as it cannot voluntarily waived his habeas “imposed without serious and calm be appeal right. ought proceed any reflection that deci B. Constitutionality The Waiver’s gravity finality.” Thomp sion of such Oklahoma, 815, 856, v. son 487 U.S. 108 capital A defendant’s waiver of 2687, (O’Con- 101 702 S.Ct. L.Ed.2d appeal requires particularly careful scruti J., nor, concurring). For a death sentence ny. Generally, jurisdiction lack “[w]e constitutional, Eighth Amend appeals entertain a where there was valid requires ment the sentence be im ap and enforceable waiver in a Jeronimo, posed non-arbitrary fashion. peal.” See United States v. 398 (9th Cir.2005). 153, 188, Georgia, Gregg F.3d How v. 1152-53 (1976). ever, qualitative “because there is a dif- 96 49 S.Ct. L.Ed.2d 859 mean, what, [Comer]: [SMU II] "Yeah. I is still that’s—I’ve been here at SMU II that's hell, god, paradise, you comparing years. you but start six or seven could tell And I you compare just just ago years it to SMU I there’s differences two much Folsom— —how big changed prison a different But SMU I was never conditions have in our [sic]. all anywhere being gotten just close to what Folsom of us over there. better It’s what, ago talking years years ago. big major change, was.... But we’re 23 two aNot like change talking big major was Folsom. SMU I was We’re 15 a between Folsom and to- II, years ago. talking day, you And then we’re SMU but can see it.” still

949 Indeed, state to Permitting petitions execute the 599 federal habeas adjudica a full defendant without capital submitted from to 1995 1973 challenging federal previously tion filed constitutionality sentences, death Eighth amounts to an Amendment appeal of them granted, nearly were 40%. “[Supreme] Court has re violation. Liebman, A James Broken S Ystem: Er- emphasized meaningful ap peatedly Capital Cases, 1973-1995, Rates In ror E- promotes review of pellate death sentences (1995). Between approxi- reliability consistency.” Clemons v. mately capital 70% of defendants who had 738, 749, Mississippi, 494 U.S. S.Ct. been denied federal habeas relief in dis- (1990). Meaningful 108 L.Ed.2d 725 prevailed trict court in federal courts of clearly review includes review on appellate Whitmore, appeal. 170-71,110 495 U.S. at Estelle, appeal. direct See Barefoot J., (Marshall, dissenting). Ha- 880, 887, L.Ed.2d review, therefore, beas significantly in- (1983) (“[Djirect pri creases the of a reliability death sentence. avenue for mary review of conviction or sentence, and cases penalty death are no contrast, In allowing a de But ... exception.”). “significant evidence review, to arbitrarily fendant waive such meaningful appel demonstrates it once has been properly initiated necessary capital late review case the defendant reviewing and the court beyond appellate process.” extends direct presented has been briefs with that dem Giarratano, 1, ray Mur v. 492 U.S. onstrate the defendant’s (1989) conviction or 24, 2765, L.Ed.2d 1 109 S.Ct. 106 (Stevens, J., may unconstitutional, sentence indeed be dissenting). violates the Eighth Amendment. The Especially meaningful ap vital is taking life, defendant is not his own he pellate capital review of a defendant’s ha coopting is of the power capi state’s petition. of habeas corpus beas “The writ punishment to system power tal kill—a is the fundamental instrument for safe must only be wielded accordance against guarding individual freedom arbi pro with Constitution’s fundamental trary lawless state action.” Harris v. justice, people’s tections. The interest Nelson, 290-91, 286, 394 89 U.S. S.Ct. forms of the pow which the basis state’s (1969). 1082, 22 L.Ed.2d 281 writ execute, to not easily er should be so “Congress’ expressed demonstrates inter right to commandeered. The die is not providing est in a federal forum for the rights synonymous right vindication of the to kill. constitutional with the Ross, prisoners.” 1, state Reed v. 468 U.S. strongly Comer once felt about his fed- (1984). 10, 2901, 104 S.Ct. 82 L.Ed.2d 1 attorneys— own eral habeas claims. His ‘static, narrow, corpus Habeas is “not a then habeas counsel—filed briefs that one remedy,’ formalistic which must but potentially panel alerted this serious ‘ability through retain the to cut barriers ” constitutional violations occurred dur- procedural of form and mazes.’ Murray sentencing proceed- Comer’s trial and Carrier, 501, 478, v. U.S. ings. To pretend gone claims have these (1986) 2639, (Stevens, J., 91 L.Ed.2d 397 away permit is to state to execute (citation omitted). concurring) Its “central who wrongfully.12 man has been sentenced is concern” “fundamental fairness.” The state should not able to 668, v. execute an Washington, Strickland U.S. (1984). 697, 2052, illegally 104 S.Ct. person. 80 L.Ed.2d convicted or sentenced II.C., infra, Section See "Comer's Habeas Claims.” sanctity of the duty preserve the tal Supreme Court so Pennsylvania theAs violation. Amendment from such Eighth counseled: eloquently de- capital review of a appellate Federal normally make may a defendant [W]hile is a vital petition federal habeas fendant’s voluntary waiver an informed arbitrary and in- himself, such protection against freedom personal rights penalty. way a substan- infliction of the death where consistent give must to do so involved; in such a is policy public tial abili- limiting a defendant’s note that We may fully feel court appeals case safe- unilaterally waive constitutional ty to seeking to reach an is- warranted ex- precedent. For is not without guards of the death imposition .... Because sue a rule upheld ample, finality, it in its irrevocable penalty is to waive not allow a defendant that does by which that the standards imperative jury trial without the consent right to a constitutionally fixed be that sentence is prosecution. court and of the See waiver con- beyond reproach____[T]he 24, States, 380 34- v. United Singer a means of intended as cept was never 783, L.Ed.2d 630 85 S.Ct. defendant choose allowing a criminal (“The right ability to waive a constitutional his own sentence. carry right it the ordinarily does McKenna, 476 Pa. v. Commonwealth opposite right.”). of that upon to insist (1978) (internal citations 383 A.2d right plead assert a may Nor an accused omitted).13 charge, thereby criminal guilty to choose his own allow a defendant To trial, jury to a absent waive his arbi- introduces unconscionable sentence a factual for the basis determination sys- capital punishment into the trariness 11(b)(3); P. FED. R. CRIM. plea. See Sumner, tem. See Massie States, McCarthy v. United Cir.1980). Permitting such waiver 466-67, 22 L.Ed.2d 418 defendant, justice sys- not the allows the (1969). McCarthy recognized Court procedural attendant safe- tem with its not be allowed to that a defendant should whom the state will guards, to determine of a whether he is convicted determine death, yet er- seeks execute. Comer crime, by guilty, if “his conduct pleading hearing prevent us sentencing in his rors charge.” fall actually not within the does if he is a member of knowing 467, Similarly, Comer Id. at 89 S.Ct. 1166. that the state is narrow class of individuals himself be allowed to sentence should not Gregg, 428 U.S. permitted to execute. See ful- properly if the state has not to death Indeed, 189, “the waiver at 96 S.Ct. 2909. who falls obligation filled its to determine position lofty so rule cannot exalted to who the narrow class of individuals within this Court to blind itself require as to punishment. capital deserve propriety allowing the real issue—the already implicitly recog- has This Circuit illegal conduct an execution of the state to our In McKenna, position. nized the correctness of 383 A.2d at 181. a citizen.” Schriro, Landrigan ignored we the de- judicial our and socie- cannot abdicate We concerns, death government it is not the inmate on the state of Because of similar 13. mandatory only accused who determines when Jersey row or the New has made review, prison- whether the State shall execute appellate but also at least one direct rather, er; that determi- the law itself makes post-conviction review. State v. round of 603, Martini, (1996). public in the re- nation. The has an interest 677 A.2d 1106 144 N.J. sentencing liability integrity death Jersey Supreme explained of a its The New preferences of decision that transcends the "For those who wish to un- decision thus: derstand, at defendants.” Id. explain we that under our form of individual attempt pending to waive his ha- through attorneys, fendant’s then filed a 638, appeal. beas 653 n. response, challenging his mother’s stand- Cir.2006) (en banc) (Bea, J., dissenting). ing. Instead, proceeding, in an en banc we held A next friend is one appears who Landrigan may have received ineffec- “unable, party behalf of a usually be during tive assistance of counsel his sen- cause of mental incompetence or inaccessi hearing tencing and remanded for an evi- bility, Whitmore, to seek relief [himself.]” dentiary hearing develop the facts of the (citations 162, 495 U.S. at 110 S.Ct. 1717 claim. Id. at 650. omitted). A “necessary condition for ‘next Thus, spite waiver, of Comer’s valid standing friend’ in federal court is a show

we must review the merits of his habeas by proposed ‘next friend’ that the otherwise, appeal. claims on To do and real party interest litigate is unable to allow Comer to be executed despite the his own cause due to mental incapacity, sentence, infirmities would be to court, lack of access or other similar deny him dignity being treated fair- 165, disability.” Id. at 110 S.Ct. 1717. ly justly by a state that claims the The majority in Gilmore held that Mr. of life power person. and death over his Gilmore had “made a knowing and intelli The dissent contends that review of the gent waiver of and all rights federal he Eighth Amendment claim before us is asserted,” might have and therefore did Utah, foreclosed Gilmore v. 429 U.S. not consider the substance of the claims 436, (1976). 50 L.Ed.2d 632 his mother had raised as his next friend. However, the Gilmore Court never ad- Id., at 97 S.Ct. 436. dressed the presented constitutional claim Whitmore, petitioner, namely whether a state case, L.Ed.2d is another similar to provide mandatory must appellate review Gilmore, may appear at first relevant a capital defendant’s conviction and sen- Whitmore, actually inapposite. but is In despite tence the defendant’s desire to Jonas sought challenge Whitmore Gilmore, waive such review. See validity of imposed the sentence on fellow (“The 97 S.Ct. 436 ... question [of Simmons, death row inmate Ronald who Gilmore whether] is ‘unable’ as a matter of had knowingly, intelligently, and voluntari law to waive the right to[meaningful] state ly appeal chosen to neither his conviction appellate review ... simply is not before 151, nor his sentence. Id. at 110 S.Ct. us.”). 1717. The Court ruled that Gilmore, In holding the Court’s turned Whitmore standing, lacked and dismissed petitioner’s on the standing. lack of Id. at petition jurisdiction. the for lack of Id. at 1014, 1016-17, case, 97 S.Ct. 436. In that 165-66, 110 S.Ct. 1717. convicted Gary defendant Mark Gilmore Notably, neither Gilmore nor Whitmore attorneys directed his not appeal his was significant dissenting decided without conviction or sentence and to withdraw an opinions: appeal that previously had been filed with- capital When a defendant seeks to cir- consent,

out his appointed trial counsel. procedures necessary cumvent 1015, 4, to ensure However, Id. at n. 97 S.Ct. 436. the days propriety four of his conviction and sen- before Gilmore’s scheduled exe- tence, cution, mother, Gilmore, he does not ask the per- his Bessie State to filed an Rather, application stay execution, for a mit him to take claiming of his own life. he acting be as her’s son’s “next friend.” invites the State to violate two of the 1013, Gilmore, Id. at S.Ct. 436. Mr. most basic a society— norms of civilized in- Comer’s case is different. Comer himself penal authority be

that the State’s necessary the properly to serve initiated current and only where voked the justice, particu- not ends of a of in his own right. ends stands before this court individual, punishment lar federal began present the habeas ade- only where State has imposed by filing with District proceedings punishment that the quate assurance for petition a writ of preliminary justified. The Constitution forbids for application appoint- an corpus, accept that invitation. State to counsel, request stay a for ment of a at majority 495 U.S. of panel Whitmore of execution. As a this J., joined dissenting, by Bren- (Marshall, published in its previously pointed out Gilmore, nan, J.); at U.S. See opinion: (White, J., joined by dissenting, S.Ct. 436 himself, in signed pleading [Comer] J.) Brennan, (“[T]he consent Marshall procedural which histo- he described ... priv- of a defendant does convicted that, ry alleged of “I am his case punishment oth- ilege impose State being my held in violation federal by the Amend- Eighth erwise forbidden rights.” specifically [He] constitutional ment.”). court requested appoint that the district remaining Justices in both cases But the Eckerstom, counsel, Peter his current J. they not reach- expressly stated were Hannah, Jr., and John R. Law addressed the dissents. the issues Offices Federal Public Defender Gilmore, at In 97 S.Ct. 436 Arizona, him. represent He also (J. joined Stevens, concurring, by J. Rehn- provide asked to both at- the court quist), Stevens’s concurrence de- Justice torneys time to sufficient file an petition one of Bessie Gilmore’s scribed grant petition stay amended has party standing “third no [who] support In of his request execution. for litigate Eighth claim or an Amendment counsel, appointment signed he claim any other defen- [the indeed indigence. to his attesting affidavit Berger Justice stated that behalf.” dant’s] returned When Mr. Comer to state raised dis- question Justice White’s court with his federal constitutional sent not before the Court. Id. at claims, verified personally peti- he (J. Burger, concurring, 97 S.Ct. 436 given had repeated tion and that he Powell).

joined by J. proceed. counsel to He consent to his Whitmore, Similarly, in stated on that form that the petition (internal quotations every ground of which was contained he omitted), and punctuation Justice Rehn- aware a writ of granting habeas cor- quist explained: Further, pus. he wrote “Peter J. question presents This case whether to represent Eckerstrom is authorized standing party challenge third has to in pleadings me matter. The this he has validity imposed of a death sentence already by filed are authorized me.” capital on a defendant who has elected Comer, 215 F.3d at 912. appeal of forgo his to the State opening reply filed himself Our in- Supreme Court.... threshold “rais[ing] ques- briefs this Court serious “in quiry standing way depends no into constitutionality tions about the his con- petitioner’s on the merits of the conten- Comer, 215 viction and sentence.” F.3d particular illegal,” tion that conduct is contrast, 912. In never put ... thus aside Gilmore chose and we for now WThit- 1015, Gilmore, 4, appeal. 429 U.S. at n. 97 Eighth challenge!.] more’s Amendment

953 § exercised 28 U.S.C. 2253 S.Ct. 436. We Exhaustion jurisdiction petition over Comer’s habeas a. Federal Standard 2000, argument pertaining and oral pre-AEDPA Consistent with our stan- the merits of his claims had been sched- dard, habeas relief granted shall not be prior filing uled to the motion to it appears unless that a petitioner has appeal. dismiss the The State’s and Habe- exhausted state remedies “or that there is concerning as Counsel’s briefs the merits either absence of available State correc- petition today pend- are Comer’s habeas process tive or the existence of circum- ing before this Court. rendering stances such process ineffective protect rights prisoner.” question We now decide a left unan- 2254(b) (1994). § U.S.C. pass For us to swered Court: whether claim, the merits of a constitutional permits the Constitution state execute claim “fairly must first have been present- capital defendant who wants die but Connor, ed to the state courts.” Picard v. properly whose filed federal habeas 270, 275, 509, 404 U.S. 92 S.Ct. 30 L.Ed.2d yet (1971) (internal substantively has not been reviewed. quotation marks and omitted); Moore, citation Casey v. question negative. We answer this in the (9th Cir.2004). 896, F.3d petitioner Even if a C. Comer’s Habeas Claims fails to court, raise a constitutional claim in state 1. Standard Review requirement may exhaustion be satis fied, allowing us to address the claim on its Because Comer filed feder merits, where the state court itself ex 1994, al petition the Anti-Ter hausts the claim. In particular, where a Penalty rorism and Effective Death Act of state court required is to review the record (“AEDPA”) apply does not to his error, for federal constitutional the state petition. Murphy, See Lindh v. 521 U.S. court’s determination that there was no 320, 327, 2059, 117 S.Ct. 138 L.Ed.2d 481 error constitutes sufficient state consider (1997). pre-AEDPA We therefore apply claim, ation of a constitutional impli which edly way standards of review. v. exhausts that claim in a Gar Woodford not independent of federal law. Ake v. ceau, See 202, 205, 123 S.Ct. Oklahoma, 68, 74-75, 470 (2003). L.Ed.2d 363 Under these stan (1985); 84 L.Ed.2d 53 Beam v. Pask judgments dards “state court of conviction ett, (9th Cir.1993), 3 F.3d 1306-07 carry presumption sentence of finali grounds by Lambright overruled on other ty legality may only be set aside Stewart, (9th v. 191 F.3d Cir. prisoner when a state carries his burden of 1999). A state court’s automatic review proving that detention violates the [his] process necessarily does not exhaust all person, fundamental liberties of the safe federal constitutional claims. See Poland guarded against state action the Feder Stewart, v. 1105-06 Brown, Hayes al Constitution.” 399 Cir.1997) (distinguishing Arizona’s funda (9th Cir.2005) (en banc). F.3d provision pro mental error review as not viding implied exhaustion of pre otherwise We review de novo the District claims). Rather, only cluded constitutional Court’s denial of habeas relief. Alcala See those claims that the court specifi state (9th 862, Woodford, v. 334 F.3d 868 Cir. cally required to review are exhausted 2003). by the merits that review. Id. at 1106.

954 Hill, 313, Beam, State 174 Ariz. construed the Idaho Su- followed.” v. 848 we

In (citation (1993) omitted) 1375, 1388 P.2d of death automatic review preme Court’s (reviewing sentencing judge whether the constitu- impliedly exhausting as sentences required that impermissible had an conflict de- by capital not claims raised tional recusal, aggravating as well as in court. 3 on direct state fendant circumstances); mitigating accord v. State the Idaho Su- at 1306-07.14 Because F.3d Stuard, 881, 589, Ariz. 176 863 P.2d 896-97 duty to an affirmative “ha[d] Court preme (1993) “painstaking” exami- (undertaking in a case capital the entire record review if determine nation record to ... whether ‘the sentence of to determine penalty erroneously imposed); death was imposed the influence of was under death Bible, 549, 1152, 175 P.2d v. Ariz. 858 State arbitrary or prejudice, any other passion, (1993); Watson, see v. 129 1206 also State factor[,]’ state must con- [have] court [t]he 60, 943, (noting Ariz. 628 P.2d 946 sentencing in that possible errors sidered] painstak- Arizona Supreme that the Court not raised the defendant.” Id. [were] ingly reviews death sentences to ensure (internal omitted). Idaho citation Su- punishment inflicted in an is not arbi- decision to affirm Beam’s preme Court’s manner). trary capricious The Ari- necessarily included an death sentence Supreme ensures that zona Court also law.” “antecedent determination of federal penalty “imposed under death was not Thus, to the challenge at 1307. Beam’s Id. passion, influence of prejudice, oth- constitutionality aggrava- of of an the use Richmond, arbitrary v. er factors.” State during pro- ting sentencing factor 186, 41, (1977), 114 Ariz. 560 51 P.2d over- cedurally defaulted. Id. grounds other v. ruled on State Sala- zar, (1992); 399, 173 Ariz. P.2d 566 844 Supreme Indepen- Arizona Court’s b. Woratzeck, 452, Ariz. accord State v. 134 Review of Capital dent Cases (1982). 865, 657 P.2d This indepen- Beam, we As look both Arizona’s process dent review includes scrutiny of its case statutes and law to determine the federal constitutional claims. State v. independent of re- parameters Arizona’s Brewer, 170 Ariz. P.2d 790-91 “In capital capital view of cases. (1992) (undertaking independent review cases,[the Arizona inde- Supreme Court] because, matters, among other Arizona to deter- pendently examine[s] the record Supreme Court must determine under existence of and mit- aggravating mine the Eighth Fourteenth Amendments circumstances igating propriety and the penalty being the death is not inflicted in Comer, the death imposing penalty.” fashion). arbitrary and capricious As (Ariz.1990) added). (emphasis P.2d at 348 Supreme the Arizona noted in ex- independent specifically This en- review review, its plaining the record reveals “[i]f compasses sentencing review the hear- reason, court, that the trial whatever aggravating and record well as a defendant improperly sentenced ensure, among death, mitigating circumstances to we must overturn sentence.” added).15 things, “proper procedures (emphasis other were Id. at 791 Thurman, (9th 14. The State that the Court's deci- v. 533-34 contends F.2d Cir. Lane, 1991). Teague v. sion (1989), bars ret- L.Ed.2d 334 application thoroughness recognized roactive of Beam to Comer's case. 15. We have held, however, Teague independent We have does not the Arizona Court’s re jurisdic- apply process to matters federal habeas view context. See another Ger tion, Stewart, including analysis. laugh our Coe exhaustion Stewart, Impliedly c. Comer’s Exhausted Habe- 1084 n. 2 Cir.1997) (constitutional as Claims claims that are “readily apparent from the fall record” The District found seven of Court under penumbra the of the automatic re present claims to be pro process), view vacated on grounds, other cedurally defaulted because Comer failed L.Ed.2d to raise them in court.16 state As ex (1998). Therefore, they we hold that below, however, plained under the Arizona exhausted, were impliedly merits, on their Supreme independent pro Court’s review independent Arizona’s review of Com cess, four of these claims were impli seven capital er’s case. implied We examine the exhausted; therefore, edly may we ad exhaustion of of each these penalty-phase the dress merits of those claims. claims turn. preceding discussion makes clear review, during independent its First, the claims Comer that the trial Supreme Arizona Court examines the en- Fifth, Sixth, court violated his and Four record, particularly tire the sentencing rights teenth Amendment not deter hearing, to if procedural determine mining his competency during the sentenc arbitrary errors occurred or other factors ing hearing, following statutorily and not the sentencing influenced court’s decision required procedure at post-sentence the impose to death The Ari- sentence. (Claim VIII). competency hearing Com Supreme clearly zona Court is conscious of er’s compromised physical and mental con duty to respect its the dictates of the dition during sentencing is readily appar and Eighth Fourteenth Amendments and ent from presented the record was penalty to ensure that the death is not Supreme the Arizona Court. That record in an imposed arbitrary capricious and transcript included a sentencing of the fashion. hearing, which begins very ques tion of whether Comer is even conscious. of initially pre

Four the claims Comer question This (Claims arose because Comer was VIII, sented the District Court naked, XI) presented nearly court X, IX, procedural relate to the wheelchair, shackled to a with his head sentencing hearing, conduct and di side, slumped to the bleeding from implicate rectly Eighth and Fourteenth videotape head wound. A of the sentenc protections against Amendment the arbi ing, condition, demonstrating Comer’s trary imposition death penalty. of the readily Supreme claims also before the Arizona apparent These were also Court. Furthermore, record that Arizona record Supreme included a tran painstakingly script reviewed. Falcone post-sentencing competency Cf. 1997) (Claim IX), (3) (finding independent Cir. er's Arizona's absence the unconstitu- "propriety legality as to the review tionality sentencing court's of the trial penalty” justifies death counsel's tactical deci (Claims while unclothed semi-conscious rely indepen on that sion review instead of XI), (4) insufficiency X and of evidence dently raising claims related to defendant's support finding court's Comer com- sentencing). pecuniary gain mitted the homicide (Claim XII), (5) the Arizona Court’s (1) Specifically, those claims include: weight failure to consider the cumulative unconstitutionality of the trial court’s failure (Claim XIV), mitigation Comer's evidence statutorily procedure required to follow at a (6) penalty the Arizona death statute's failure VIII), (Claim post-competency hearing subject to narrow the class defendants unconstitutionality of the trial court's con- (Claim XVI). penalty the death ducting hearing a post-competency in Com- 956 hold, therefore, four day, in Com- that these the next which We

hearing, held by ex- claims were exhausted on their merits during sentencing was competency er’s independent and the Arizona Court’s transcripts These plicitly discussed. case. capital to Arizona review Comer’s Comer’s notice videotape gave ample (Claims XII, XIV, and three other claims competency Supreme Court that Comer’s XVI) readily apparent are sentencing hear- neither during the was of concern clearly nor as Additionally, encompassed a defendant the record ing. to sentence review. independent is a due within Arizona’s incompetent federal while he is Gunn, Thus, impliedly we not find to be v. 548 do them process violation. See Sailer may Cir.1977); 271, proceed see also exhausted. We decide F.2d 273-74 Robinson, 375, 378, impliedly 86 of Comer’s exhausted 383 U.S. merits Pate v. (1966); 836, Drope v. claims without remand to District 15 L.Ed.2d 815 S.Ct. Beam, 1570-75; 162, 172, at Missouri, 420 U.S. Court. See Greer, (1975). 129, 131, 107 Granberry The Su- v. 481 U.S. 103 Arizona 43 L.Ed.2d (noting not to this 95 L.Ed.2d 119 preme decision address S.Ct. Court’s appellate during independent may appro- its that federal court constitutional issue rejection any priately peti- of habeas implicit decide merits review was tion). error.

Second, Additionally, argues claims Comer post-sentence Arizona’s' fundamental error ex competency conduct of the review Sixth, pre hausted of the he hearing in his absence violated his most other claims the District have Eighth, and Fourteenth Amendment sented to Court. We IX). (Claim held, however, only rights Again, Comer’s ab we will consider post-sentence hearing is funda sence from the claim be exhausted Arizona’s review if it was readily apparent transcripts. explicitly from the A mental error presented has constitutional noted the briefs the state defendant court, any stage of court men present prosecu appellate at critical the state tion, considering including capital sentencing sponte. hear tions it the claim sua Florida, Schriro, ings, Moormann v. see Gardner v. See F.3d (9th Cir.2005). (1977), oc L.Ed.2d Because neither case, curred in this we affirm the District hearings determine defendant’s Goldsmith, competency, finding that most of other Sturgis see Court’s Comer’s (9th Cir.1986). Thus, procedurally F.2d habeas claims were defaulted. issue, failing to address this the Arizona proceed now to address on the We rejected impliedly any error. again impliedly merits Comer’s exhausted Third, First, sentencing actually will Comer claims exhausted claims. we four guilt-phase while unclothed and semi-conscious violat- consider the claims process clause Four- in his brief and that ed the due Comer raises (Claims XI). actually teenth Amendment X and the District Court found were ex- thus de- egregious procedurally circumstances of Comer’s hausted and not Second, during sentencing readily ap- faulted. we address condition are will claims, phase trial an ac- parent transcript penalty from both the which include videotape presented tually Arizona exhausted claim of ineffective assis- By commenting impliedly four Supreme Court. on tance counsel and the issue, sig- claims have implicitly this the Arizona Court exhausted we discussed rejection naled error. this section. its (9th Cir.2002). Thus, 309 Guilt-Phase Claims F.3d grant we will not habeas relief unless the that his convic Comer contends joinder “actually petitioner’s rendered] of tion should set aside because several hence, fundamentally state trial unfair and during that occurred constitutional errors violative of process.” due Davis v. Wood phase Specifically, of guilt the his trial. (9th Cir.2004) (cita (1) ford, 384 F.3d the trial Comer claims that: court’s omitted); Calderon, failure to sever the Pritchard homicide tion v. Bean 163 F.3d Brough (9th Cir.1998). from the and count Andrews kid “The requisite napping/robbery/sexual assault counts vio prejudice level of is reached only if the trial; to a fair process right lated due impermissible joinder had a substantial (2) trial the court’s failure to sever the injurious and effect influence in deter right counts also violated constitutional Davis, mining jury’s the verdict.” (3) testify; prosecutor’s the misconduct (internal quotation F.3d at 638 marks and during deprived closing argument Comer omitted). citation We conclude that the trial; fundamentally of a fair and the joinder kidnap of the homicide and venireper trial court’s failure to strike two ping/robbery/sexual assault counts did sons cause Comer his Sixth denied fundamentally render Comer’s trial unfair. impartial Amendment to a fair and Comer contends the circumstances jury. analogous of his in trial are those found The District Court considered the mer- Calderon, Bean v. a case which we held all its of four of these claims and denied joinder the of two murder counts petition. agree Comer’s habeas We with prejudiced the defendant as to one the of the District Court that is not enti- Comer counts. 163 F.3d at 1083-86. The likeli- to relief of upon tled based these Bean, however, hood of prejudice was claims; therefore, his conviction should much greater than the likelihood that and deny petition stand we his habeas by joinder prejudiced was the of claims. guilt-phase to these kidnapping/robbery/sexu-

the homicide and a. Severance al assault counts. First, Bean,

i. Due found Process we that the evi- the regarding separate dence murder Comer’s first claim is that the trial court counts at issue not have cross- would been joined improperly the Pritchard homicide admissible had counts been sepa- tried Brough count to the Mdnap- Andrews and contrast, rately. at 1084. In counts. ping/robbery/sexual assault Com- Arizona that, held that er contends because evidence regard kidnapping/robbery/sexual to the homicide and Brough Andrews stronger counts was and more inflammato- properly joined assault counts were be- ry relating than the to the evidence first- pertaining cause evidence to both sets count, murder degree prejudiced he was offenses demonstrated that Comer en- was joinder of the offenses since the gaged in plan a common scheme or inflammatory evidence had a substantial Comer, money supplies. obtain injurious impact jury’s on the determi- (Ariz.1990). Thus, P.2d at 338-39 as Com- regarding first-degree nation murder er acknowledges, at least some of the evi- count. trial presented dence at his was admissible as to all of the counts. This cross-admissi- propriety

“[T]he consolida bility significantly evidence reduces tion rests within the sound discretion of See, e.g., trial v. judge.” Woodford, potential prejudice the state Fields Comer. took Davis, weeks before crime (finding prej- no house several F.3d 638-39 Here, was in con- when evidence 163 F.3d at 1085. place. udice the defendant cross-admissible, weight evidence trast, argument during closing Comer’s roughly equivalent, was for each count Pritch- admitted that Comer shot counsel instruction); gave limiting court ard. defense was that the shoot- cf. Kolb, 1258-60 Leach F.2d precipitated an accident Com- Cir.1990) that, (holding even when counts time, thus did er’s intoxication at the law, joined properly not under state were necessary premeditation not the involve misjoinder not due to a prejudicial the was finding degree for murder. The a first strong evidence of limiting and instruction prosecution presented substantial evidence charge). as to each guilt (1) the theory, including: to this rebut Second, joined in improperly the counts wound, ear, the location of the behind of two murders. 163 F.3d (2) Bean consisted shooting; suggested which a deliberate However, joined of- when the at that, testimony of moments before Willis nature, different such as fenses are her, to shooting, going the Comer told “I’m assault, and kidnapping/sexual murder and away,” blow him and that after the shoot- presented as to each specific evidence is “[sjee done, I’m said what I’ve Comer crime, misleading confusing the risk killer”; a callous evidence cold and jury v. the is reduced. See United States that in the Comer stabbed Pritchard Cir.1985). Irvine, (9th F.2d 712-13 shooting. the Comer counters throat after Third, jury only Bean received the testimony that cannot believed. Willis’s very general instruction that each count argument with When faced this Sando- at separately. must be decided F.3d Calderon, however, val we that the v. held was, contrast, jury ex- 1083. In Comer’s credibility for the issue of witness’s is give separate “to consid- plicitly instructed jury 241 F.3d 772-73 to decide. to to each individual count” and eration Cir.2000). jury’s conviction of Comer in each “analyze what the evidence count degree suggests murder count the first that respect shows with to individual testimony. it credited Willis’s Additional- may this count.” instruction While ly, agree that the as to parties all evidence ideal, court have been since the subse- regard kidnap- to guilt the jury that some evi- quently instructed ping/robbery/sexual assault counts was counts, overlap the it might dence between overwhelming. limit any prejudice. still acted to See strength evidence Given Davis, (“[A]ny prejudice 384 F.3d counts, against on all the cross- Comer limited an instruction through was further evidence, admissibility of the trial directing jury to each count consider instruction, limiting we hold separately.”). court’s was fundamen- Comer’s trial not rendered Finally, relating the evidence to Comer’s See, joinder tally unfair of the counts. guilt of the Pritchard homicide count was Davis, e.g., (holding at 638-39 no F.3d strong, kidnap- as was the evidence of when was prejudice to defendant evidence In ping/robbery/sexual assault counts. cross-admissible, weight of for evidence Bean, able to prosecution was muster roughly equivalent, each was count Bean only scant evidence to convict Fields, instruction); limiting gave court count, including disputed second murder (holding preju- at 1109-1110 no hair, F.3d matching testimony fingerprint, a was dice to defendant when evidence hiding in neighbor of a who saw Bean guilt the victim’s and evidence of some bushes across from cross-admissible Sandoval, strong); 241 F.3d surrounding all counts was circumstances his shoot (same). at 771-73 ing of Pritchard. he did not Because wish testify regarding the Andrews and Testify Right ii. counts, however, Brough he refrained claim, con In a related stand, taking or even attending testify tends that under the trial, because his motion for severance Fifth, Sixth, Fourteenth Amendments granted. In support was not of his motion the trial court refused violated when severance, specifical a defendant must to sever homicide count from the Pritchard identify ly testimony he would offer in Brough the Andrews and counts. so that defense the trial court can de testimony if that important termine asserting correct in Comer is enough justify testify in severance. See United process right he has a due Arkansas, Fenton, (1st own defense. Rock v. See States 2704, 44, Cir.2004) U.S. 107 97 L.Ed.2d 37 S.Ct. (holding that a bald assertion of (1987). however, testify, The to does right and unparticularized innocence claim as to guarantee to testi ability not a defendant’s credibility specific witness enough was not fy only to his to information favorable severance); to mandate United States v. Rock, 52, 483 at defense. U.S. 107 S.Ct. Alexander, 470, (7th 135 F.3d 477 Cir. (a testify 2704 who chooses to is defendant 1998) (requiring specific examples of the cross-examination); subject to United exculpatory testimony the defendant (1st Alosa, States v. 14 F.3d 696 Cir. court, give). would Before trial the Com 1994) (noting that the Fifth Amendment er’s counsel asserted that Comer would protects a right defendant’s to choose testify shooting that the was unintentional testify, whether to but “does not assure and details of give surrounding the cir testimony that will only the benefit the cumstances. Comer also have would re defendant”). defendant, therefore, A re by testimony denying futed Willis’s ability strategically tains the to decide he made the “I’m going ever statements to revealing dam testify whether to and thus cold, away” blow him and “I’m callous Rock, aging See information. regard killer.” Without additional details 53,107 S.Ct. 2704. would the circumstances Comer have However, joinder may of counts to, we find proffered testified this testimo unduly affect a defendant’s choice whether ny specific not to enough is mandate sev See, e.g., to testify. United v. Bol States erance. zano, (7th Cir.1990). 1283 To preju obtain severance because of Additionally, this did not have Comer effect, dicial a defendant “must show testifying need to refrain from strong important testimony he has to on give and “[A] to the Jones Smith counts. defen some refrain strong counts and need to convincing to dant fails make a demonstra from on those sev testifying he wants strong tion of a need to refrain from testi Nolan, ered.” See United States v. 700 when[,][w]ithout particular fying on counts (9th Cir.1983). F.2d Applying 483 testimony, govern the defendant’s] [the case, Nolan to we hold that Comer this to support ment offered sufficient evidence was not on his entitled to severance based counts.” jury’s verdict on these Bolza Fifth, Sixth, and Fourteenth Amendment no, (internal quotation F.2d at 1283 testify. omitted); accord United States v. marks (7th Freland, that, F.3d Cir.

Comer claims had the counts 1998). joined, previous not would As sec been he have testified discussed process, is the narrow one of due corpus evidence tion, parties agree all counts, supervisory not the broad exercise of regard the Jones Smith testimony (internal eyewitness quotation included Id. marks power.” which Smith, Willis, Jones, daughter, Godinez, Willis’s omitted); Duckett accord Thus, lacked a Cir.1995). Comer overwhelming. F.3d testifying to strong need to refrain First, that the we address Comer’s claim these, counts. dehumanizing ren- epithets prosecutor’s reasons, the trial court did these For fundamentally The his trial unfair. dered Fifth, Sixth, Four- violate Comer’s are prosecutor’s regarding remarks rights by refusing Amendment teenth prosecutors uttered similar those the Pritchard count from Jones sever There, prosecutors called Darden. and Smith counts. an “animal” and asserted the defendant marks remarks were undesirable sally that the L.Ed.2d tor “[I]t crimes to a horror throughout closing before us both “monster” also der Comer’s fundamentally to the prosecutor engaged er gument. Comer claims ecutor’s dehumanizing olated Comer’s due b. Prosecutorial takes issue with repeatedly process rights agree improper condemned.” omitted). Rather, we passion not ^[25] Comer’s next prosecutor’s “reincarnation have remarks. with the other 168, 181, and enough As trial unfair. epithets and done, and referred Fourteenth Amendment “filth,” analogized his all of impermissibly appealed Darden argument, movie, the in mis-conduct fundamentally Misconduct prejudice we condemn that remarks did At (internal In particular, prosecutor’s rendering claim during the the the prosecutors’ courts, however, and once S.Ct. the or various v. remarks Comer other Wainwright, even the must of devil.” We closing ar quotation the the prosecu not ren his trial that vi univer unfair. decide courts use of called times Com pros were jury. as a were rors counsel’s rebuttal. had been the basis the ly fair cutors’ remarks strong from ever state defense counsel arguments defense; Darden’s that Darden’s face cutor dehumanized them dants with these remarks. during at 180 that he did deserved Nonetheless, not prosecutor that prosecutors at 180 n. 11 & n. responsive any held n. 10 trial evidence of the defendant’s deny should their decision the trial court prosecutors presented during evidence; terrorizing crimes, that the for several & the evidence alone” the defendant death counsel n. did not turned also against Id. comments Darden, penalty kept many of 106 S.Ct. 2464. Both prosecutors’ had expressed were and argued “was manipulate many reasons, including: instructed public again. respective 181-82, 106 them in defense been blown Comer’s not the to be made a leash. the fundamental of the made the that Darden prevent their wish evidence”; trial; and “the remarks remarks or mis the by prose prose- defen- guilt him and the ju Id. off not Similarly, prosecutor did Comer’s the so in prosecutors’ “whether comments any manipulate or misstate evidence the trial to make fected with unfairness as The making objectionable remarks. resulting of due conviction denial jurors that (internal trial court also instructed the quotation Id. marks process.” omitted). on the only their decision was to be based appropriate standard “[T]he court, produced review for such a claim on of habeas evidence with evidence writ (“[Gjiven testimony defined as witness and exhibits. at 1109 eyewitness testimony jurors specifically were admonished about what[the did to defendant] [the vic- lawyers’ during that open- statements tim], there is no probability reasonable closing argument and ing were not evi- prosecutor’s that the emotional appeal af- Furthermore, they dence. were instructed verdict.”). fected the by sympathy prej- to be “influenced Accordingly, we hold that while the statement, during closing udice.” And prosecutor’s remarks improper, they were jurors prosecutor warned the that his do not rise to the level of process a due statements, counsel, and those of defense Hall, violation. 165-66; See 935 F.2d at were not “proof.” These admonishments Skon, Kellogg (8th 176 F.3d 451-52 significantly instructions limited Cir.1999) (holding that the prosecutor’s im- prejudice prosecutor’s caused re- remarks, proper including calling the de- See, Wood, e.g., marks. Furman v. “monster,” deviant,” fendant a “sexual Cir.1999) F.3d (upholding “liar,” did not rise to the level of a due ruling the state court’s prosecu- process violation because of limiting jury improper tor’s statements did not render instructions, no attempt part on the of the trial fundamentally unfair because the prosecutor to manipulate or misstate the prosecutor jury also told the argu- evidence, heavy evidence of guilt). evidence, ments were not and because the government presented strong case Additionally, reject we against defendant); Hall v. Whitley, contention that these remarks were an (9th Cir.1991) (hold- 165-66 impermissible appeal to passion prosecutor’s improper com- prejudice jury. Comer cites North ments were isolated moments in a three ern Mariana Islands v. Mendiola for the trial, day mitigated their effect was proposition that “designed comments judge’s instructions closing argu- fears, passions, to the and vulnera evidence, ments were not strong the jury” may bilities of the grounds constitute proof guilt). of the defendant’s (9th for reversal. 976 F.2d 486-487 Additionally, earlier, as discussed there Cir.1992), grounds overruled on other strong guilt. was evidence of Comer’s Camacho, (9th George v. 119 F.3d 1393 Comer prosecutor’s claims that the re- Cir.1997). Mendiola, however, In “we em marks were intended to jury induce the phasized ... that the comment preju premeditated find that he had an intent to only dicial in view of the weakness of the However, shoot Pritchard. prosecutor case, prosecution’s the prosecutor’s disin only once referred to Comer as a “mon- genuity as to the whereabouts of the miss ster” discussing when the murder count. ing weapon, and the Government’s resort All of the prosecutor’s objectionable other to coercion to obtain evidence.” United during remarks were made his discussion Hinton, States v. 31 F.3d counts, of the Brough Andrews and Cir.1994) (explaining holding our in Men which there was overwhelming evidence of ). diola Because none of these factors are guilt. strong Comer’s There was also evi- present here, prosecutor’s we hold that the dence, including eyewitness testimony, re- remarks did not render Comer’s trial fun garding premeditation. Finally, Comer’s damentally unfair. impact emotional prosecutor’s may statements jury have had on the like- c. to Strike Venirepersons Refusal ly only replicated impact of earlier eyewitness testimony guilt-phase from the Comer’s fourth victims and claim Woodford, Willis. See Fields v. is that trial court’s failure to strike for his unclothed violated the Fourteenth Comer while venirepersons denied cause two jury as re- impartial fair and Amendment. to a and Fourteenth by the Sixth quired claim, fifth hold that As to Comer’s we two Comer contends Amendments. process Fourteenth Amendment due during venirepersons questioned of the circumstances rights were violated selection, Wilborn, were Thrailkill and jury he was to the sen- presented under which previous knowl- because their biased grant court. we his writ tencing Because and, case some of facts of the edge of basis, not corpus on we do of habeas this therefore, should have been dismissed sentencing-phase other address Comer’s the trial court refused cause. When claims. potential jurors, the two strike chal- preemptory two of used counsel During Sentenc- a. Comer’s Treatment jury. to remove them from the lenges failing trial if the court erred Even process contends that his due Comer venirepersons question, the two strike rights the Fourteenth Amendment under does constitute an unconsti- such error when violated he was sentenced were jury impartial denial of fair and tutional nearly barely naked and con- death while venirepersons jury. sit on the unless this of first scious. While issue Martinez-Salazar, United States Court, impression agree for this we L.Ed.2d 792 during that his treatment sentenc- (2000). Because Thrailkill and Wilborn and warrants ing “shocks conscience” jury, he not members of Comer’s

were of his sentence. reversal no harm. suffered constitutional “Regard requirements for the ‘inescapably imposes Due Process Clause d. Conclusion judgment this Court an exercise of upon reasons, foregoing For the we affirm proceedings the whole course of the upon District Court’s denial of Comer’s conviction) (resulting in a in order to as- petition guilt-phase as to claims. they whether offend canons certain those decency express and fairness which Penalty-Phase Claims justice of English-speaking peo- notions of holding our that sev Pursuant charged toward with the ples even those claims were penalty-phase eral Comer’s ” Rochin v. most heinous offenses.’ Califor- indepen impliedly exhausted Arizona’s nia, 165, 205, 169, 96 342 U.S. 72 S.Ct. case, capital dent review of we Comer’s (1952) (citation omitted). L.Ed. 183 Con- us five of have before claims error con- duct of state officials that “shocks the sentencing con hearing. Comer not be Id. at science” will tolerated. (1) sentencing that:' counsel tends his 205. S.Ct. (2) assistance; he rendered ineffective Subsequent given decisions have content constitutionally hearing a entitled to protection. particular, broad In to this his at the time competency to determine (3) courts found that the rou- numerous have a sentencing; post- the conduct of unjustified a shackling tine and defen- in his ab competency hearing sentence' dant, any stage proceedings, at of trial Sixth, his Eighth, sence violated (4) process. due Deck v. Mis- sen violates See rights; Fourteenth Amendment souri, 544 U.S. 125 S.Ct. tencing him while and semi-con unclothed (2005) allocution; that the visible (holding L.Ed.2d 953 impaired scious jury crime of a a sentencing capital shackling him for a defendant before during guilt Third, phase penalty phase of greatly shackles reduce defen- capital trial process violates due absent ability dant’s to communicate with counsel case-specific security justifications for the and participate in his own defense. Id. at Howard, shackling); United States 429 631, 2007; Howard, 125 S.Ct. see also (9th Cir.2005) (holding F.3d 843 that the 851; Duckett, F.3d at 67 F.3d at 747-48. shackling pretrial during detainees their Fourth, concern, and related to the third appearance magistrate first before a judge physical may restraints also confuse and process reasonably violates due unless re- defendant, embarrass impairing his Duckett, legitimate goal); lated to a Howard, mental faculties. 429 F.3d at (holding F.3d at 746-50 shackling 851; Duckett, 67 F.3d at 747-48. And during of a defendant the penalty phase of fifth, shackles may cause the defendant capital inherently trial is prejudicial and physical pain. and emotional Id. For these may only occur if circum- compelling reasons, Supreme we and the Court have justify shackling stances the need for unjustified concluded that shackling sub- courtroom). maintain order stantially interferes with a defendant’s Five basic considerations have led courts right to a fair and decent trial and sentenc- unjustified to conclude that shackling is a ing proceeding. First, process due violation. shackling foregoing apply reasons with even suggests to the trier of fact that the defen- greater force to the circumstances of Com- dangerous, dant adversely which er’s sentencing. presented Comer was impermissibly perception affects of the de- the sentencing only shackles, court not in way fendant that undermines the tri- naked, nearly only but a blanket cov- “ability weigh er’s accurately all rele- ering genitals, slumped to one side vant considerations —considerations in a wheelchair oozing with blood from his unquantifiable are often and elusive—when head wounds. His lack clothing re- it determines whether a defendant de- vealed to public the court and the Deck, serves death.” 544 U.S. at tattoos, graphic numerous and which cover 2007; Duckett, S.Ct. see also 67 F.3d at body. most of his responses And the he Thus, 748. “shackles can abe thumb [on] questions mustered to the court’s were Deck, death’s side of the scale.” cursory at best. (internal quotations S.Ct. 2007 omitted). shackled, presentation This of Comer— beaten, certainly increased Second, tattooed — shackling is an affront to the the perception dangerousness. of his If very “dignity judicial and decorum of pro- Comer had jury, been sentenced before a ceedings.” 631-32, 2007; Id. at these given circumstances would have rise Howard, Duckett, 851; 429 F.3d at Deck, prejudice. insurmountable See at 747-48. As ex- 544 U.S. at Because plained, courtroom’s formal dignity, “[t]he by however, Comer was a judge, sentenced which includes respectful the treatment of this Circuit has concluded that the of risk defendants, reflects the importance of the Howard, prejudice is lessened. See issue, ... gravity matter at and the with Nonetheless, F.3d at 850. a judge when is which any Americans consider deprivation asked to decide whether a defendant of an de liberty individual’s through criminal die, Deck, judge, serves to or the punishment.” any live like U.S. at jury, Depriving weigh S.Ct. 2007. a must those considerations that courtroom of such dignity public unquantifiable undermines confidence in are “often and elusive.” judicial proceedings. Deck, 633, 125 Id. 544 U.S. at 2007. It is S.Ct. cesses, just may as confuse any being, human no And shackles believe that

hard to defendant, be impartial, a so too certain- matter how well-trained embarrass entirely unaffected the dehu- ly be a courtroom being would does wheeled into appearance in impact manizing of Comer’s Finally, nearly while naked exhausted. the courtroom. consideration, respect with to the fifth pain from his visi- physical Comer suffered effect com- dehumanizing

This was ble lacerations. fact that the final sentenc- pounded the hearing of the few times Com- was one demonstrates, foregoing As the judge. the appeared had before Comer er mili considerations that process due hearing pre-sentencing not attend the did tate the routine use of shackles against evi- aggravating mitigating at which during sentencing the trial and of defen only He presented. appeared was dence greater dants even force to the apply with briefly beginning before the court at the of under which was circumstances trial, phase his then his guilt of waived If those circumstances had sentenced. proceeding. for of the presence the rest been Comer had been hand different —if Thus, before court presence cuffed, in yet fully physically clothed and during sentencing hearing his final was violate, sentencing— he attended when judge of the times the had to one few into inquire then we would need further confront the individual over whom he held for reasons Comer’s condition because power of and death. Yet the cir- life may justified by shackling special even meeting, far hu- cumstances of this from security circumstances such as concerns. Comer, him of manizing digni- deprived Deck, 2007; at ty. Howard, F.3d at 851. cannot con We Furthermore, appearance of justification, ceive reasonable how naked, bleeding, this shackled man was a ever, escorting bleeding naked dignity affront severe to the and decorum capital into a courtroom for a defendant judicial We proceedings. have nev sentencing hearing. We hold that Comer’s being er before read of a man sentenced to process he rights due were violated when death, court, or even to a under presented shackled, nearly while sentenced such circumstances. Even inmates soli naked, bleeding, and exhausted. tary dignitary confinement have interest Additionally, the of Com- circumstances See, being e.g., clothed. Maxwell v. sentencing inherently prejudi- er’s were so Mason, 361, 363, Cir. cial impact and their so difficult to divine 1981). If the formal dignity court’s is transcript, that, the trial as reflection of importance the matter cases, issue, Deck, shackling Comer “need not demon- at 544 U.S. at preservation dignity prejudice then strate actual make out a due Deck, important deciding most when whether process violation.” 544 U.S. at sentencing man lives or dies. Com are S.Ct. 2007. When life and death dignity er without such or decorum is un stake, subjective considerations such acceptable. the humanity dignity of a defendant sentencing will always influence deci- during sentencing

Comer’s condition sion, by judge jury. it is made whether ability to communicate also diminished his ability to The effect of Comer’s diminished only were counsel. Not his hands counsel, and the bound, communicate with jail psychiatrist but later nakedness, exhausted, mental of his exhaus- testified, impact Comer was which had tion, are unquantified shackling, on his also difficult pro- effect mental and Thus, beyond we cannot a measure. find unresolved constitutional issues underlying that the reasonable doubt circumstances of a death sentence when the defendant com- sentencing did not contribute to petently voluntarily waives his he For the sentence received. these rea- pursue an appeal; court, at the district sons, Comer is entitled to new sentenc- which went all out to conduct a compre- ing hearing. evidentiary hensive hearing and issued an extraordinarily detailed and comprehen- III. CONCLUSION sive, 90-page opinion setting forth its find- affirm We the District Court’s denial of ings and conclusions on the competence corpus petition Comer’s habeas toas decision; and voluntariness of Comer’s guilt phase of his trial. We reverse the himself, at Comer who repeatedly, has District denial of Court’s his writ of habeas competently intelligently tried for five corpus as to the penalty phase and remand years to choose what he wants to do. grant with instructions to writ as I dissent from this imposition raw the sentence begins unless Arizona resen- judicial power. tencing proceedings within a reasonable amount of time to be determined I District Court. petition Comer filed a for habeas relief part; AFFIRMED in in REVERSED appointment July of counsel on part and REMANDED. appointed Counsel were and eventu- ally the district court determined that he RYMER, Judge, Circuit concurring was not entitled to granted relief but part and dissenting part: probable certificate of cause on March need to—and may only We one —decide filed, 1998. A notice of appeal was but question: whether death row inmate Rob- Comer then sent several letters to the ert Comer is competent to withdraw his General, Attorney Arizona the Arizona tri- appeal from denial of petition for writ judge al who presided had trial over his corpus habeas and has done knowing- so him, and sentenced and the Arizona Su- ly voluntarily. agree All of us that the preme indicating that he had not question yes, answer to that based on authorized his habeas counsel to file the what the district court following found appeal with court this and that he wished hearing Rees1 that we ordered. This representation. terminate their Acting over, means that this case is because Com- communications, on Attorney these er’s waiver of further review of his habeas General filed a motion to controversy claims leaves no live dismiss Comer’s remain- appeal. between Comer and the pro State of Ari- Comer also filed a se motion zona. withdraw his and to terminate representation. counsel’s Rather

Nevertheless, majority reverses on than existing rule these motions on the the merits and orders the writ to issue. In record, we remanded to the district court doing, it thumbs this court’s nose so that it an evidentiary hearing could hold Court, the United States which to determine Utah, compe- whether Comer was made clear Gilmore v. 429 U.S. (1976), 97 S.Ct. tent to terminate forego L.Ed.2d 632 counsel and to jurisdiction that courts lack review, legal consider further and to determine Peyton, 1. Rees competence death-row inmate who curiam) (remand- (per 16 L.Ed.2d 583 certiorari). sought petition to withdraw ing for the district court to determine mental 966 choice on his own because it is his choice. voluntary. was Com

whether his decision (9th Cir.2000) Stewart, that the condi- Finally, v. the court concluded er I). (Comer confinement, tions while of Comer’s unde- harsh, niably not harsh that were so he appointed special The district court had a natural de- been forced abandon Comer; appointed indepen- counsel for sire to live. (Dr. Johnson, Sally Associate expert dent Psychiatrist of the Warden Medicai/Chief appealed counsel this decision. Habeas Division Federal Health Services majority stayed the further Sua sponte, Butner, in North Complex Correctional action the of en banc pending outcome Carolina), expert requested well as an as Stewart, proceedings in Summerlin v. (Dr. Terry Kupers, by habeas counsel (9th Cir.2001), F.3d 926 whether to evaluate private practice) psychiatrist Arizona, 584, 122 Ring S.Ct. v. U.S. competence and voluntariness of Com- the (2002), L.Ed.2d 556 invali which decision; prison the and and toured er’s judge-sentenc dated Arizona’s scheme of the where Comer is now inspected cell cases, ing in retroactive on capital was considering con- housed addition to the Stewart, collateral review. Comer v. day of his confinement from one. ditions (9th Cir.2002) (Comer II). F.3d 1157 evidentiary three-day hearing at It held definitively Supreme Once the Court ruled Comer, and experts, prison the two which retroactively that Ring apply does not testified. The district court ren- officials Summerlin, petitions, habeas Schriro v. 16, 2002, finding its decision October dered 159 L.Ed.2d and Ninth Circuit under (2004), Stewart, rev’g Summerlin law, meticulously surveyed, it which (9th Cir.2003) (en banc), 341 F.3d 1082 competent was his deci- ready motions to dismiss for resolu were appeal voluntary. his sion to withdraw However, majority, again tion. sua Dr. The court found that Johnson’s eval- sponte, briefing ordered on whether Com supported uation of Comer was better pending appeal er can waive his if habeas evidence record and more in denying court erred in his orig district accepted psychiatric accord with methods petition inal constitutional and his on Kuper’s. than Dr. Based Johnson’s rights during in fact his were violated state opinion, the district court found that Com- Order, January trial. 2005. Habeas depression, post- er does suffer from counsel, counsel, special disorder, Syn- stress traumatic SHU argu state complied we heard oral The drome. court concluded that Comer May ment 2005. his cognizant appeal, is the merits of question We must now on answer success, ability and of prospects its his which judgment we reserved on June change withdrawing mind about this appeal time before court rules.

It found Comer’s decision withdraw II ra- to execution is submit his feelings tional and based on principally A remorse for his crimes his belief argue Habeas counsel the district society punishment that he deserves the court improperly opin- credited Johnson’s imposed upon (despite person- has him However, ions Kupers. over those of opposition penalty). al the death credibility court’s places court that Comer determination well district found also weight ability supported Kupers to make this in the is not great record as understanding intellectual psychiatrist, legal op- has not of his trained as forensic setting, in a and con- tions. correctional worked a more limited examination of Com- ducted Habeas counsel contend that is Comer They than also fault the er Johnson. competent nonetheless not to his withdraw did not finding that Comer suffer court’s appeal alleged because mental his illnesses depression, relying mainly on Com-

from prevent him making from rational choice years. writings er’s over the While some among options. They rely the upon Ku- may Comer’s letters exhibit some of the pers’s opinion posit that depression to depression, others do not. In symptoms leads to suicidal ideation which causes event, any supported by are findings Comer drop appeal to want his and report, testimony, Comer’s own Johnson’s However, submit to execution. there is no Judge Silver’s of Comer and observations evidence that Comer has ever tried to findings post- court. The court’s suicide, commit opportunities despite to do Syn- traumatic stress disorder and SHU so, or is importantly, suicidal. More much depression turn on the drome absence argument rejected same was made and clearly and are not erroneous the same in Dennis ex v. Budge, rel. Butko 378 F.3d its conclusion that Comer does not reason (9th Cir.2004). 880, say 892-93 To that an depression is not. suffer fight inmate who not to chooses execution does Regardless, the court found that Comer so he has lost hope because and Also, understanding legal has a rational of his wants to die say is circular. appears options. plainly This from the inmate who not to fight chooses execu- colloquy during with Comer tion making court’s is an irrational choice misses Rees, evidentiary hearing. point He understands which his is not concerned success, with appeal, claims on their chances of of the rationality decision but consequences next if with steps “capacity appreciate his the inmate’s succeed, options were to and what he his would and make rational choice Dennis, Kupers among do those circumstances. is also them.” 378 F.3d at 890.2 opinion has a rational There can question be no serious based Armontrout, competence question Rees articulated the Public Comm'n v. Defender 1050, Cir.1987) for the district determine (8th court to as "wheth- (recognizing F.2d appreciate capacity posi- er [Rees] has inquiry prisoner decision of under whether respect tion and make a choice rational with post-conviction sentence of to waive death continuing abandoning litigation or further product thought of a remedies is the rational suffering or on the other hand whether he is process rejecting argument that waiver disease, disorder, a mental from or defect any possibili should if there not be allowed is may substantially capacity which affect his ty product is a that the decision of mental 314, premises." at 384 U.S. 86 S.Ct. disease, defect); Rumbaugh disorder v. or cf. 1505. The Court later confirmed that Procunier, 395, " ” 398-99 Cir. phrase ‘rational choice’ in Rees means 1985) (breaking " Rees standard into three nothing different from ‘rational understand- (1) " questions: person suffering is the from Moran, ing.' 509 U.S. 398 n. Godinez defect; (2) so, mental disease if does or (1993); 113 S.Ct. L.Ed.2d 321 prevent disease or him under defect Arkansas, see also Whitmore v. standing legal position options (1990) L.Ed.2d not, available; or does that disease if (asking in “next case friend" whether the making prevent defect nevertheless him from prisoner capacity has to have a rational un- among options a rational choice not derstanding respect continuing —and question is that if the to the first answer abandoning litigation). We ad- further have no, See, Dennis, go the court no further because the approach. e.g., need hered to this 890; person competent). rel. F.3d see also Smith ex Missouri firmly convinced clearly the district court’s ble to upon the record findings are does not have its erroneous. findings that Comer be un- causes him to problem that mental sum, competent In to with- Comer is options to lack his or to understand able appeal his in that he does not suffer draw choice rational capacity the to make disease, disorder, a mental or defect from them. among does, his impair if he it does not but even legal options to his capacity understand B forego make rational to and to choice determining to whether In addition Further, legal his proceedings. further appeal his decision to withdraw Comer’s appeal to his volun- decision withdraw is competent, specifically we instructed was tary product it the a free and because is of to determine “whether court district an deliberate choice and unconstrained of confinement Mr. Comer’s conditions will, his uncoerced conditions of that he has punishment so harsh constitute in II. As has confinement SMU Comer to forced natural desire been to abandon voluntarily to with- competently and asked I, at “A waiv live.” Comer appeal and habeas draw his terminate if, totality of the voluntary under er is representation, he to counsel’s is entitled circumstances, product it was the of a free Accordingly, Attorney do so. Gener- choice rather than coercion and deliberate al’s, Comer’s, to motions dismiss Com- improper Id. at 917 inducement.” of appeal of the denial his habeas er’s Doe, F.3d (quoting v. United States petition the district court should (9th Cir.1998)). 1070, 1074 counsel Habeas granted. ruling that challenge the district court’s Ill confinement did the conditions of Comer’s grounds, not coerce his decision several Having that com- determined Comer is persuasive. none of which is to to withdraw his habeas petent decide First, they got a is point appeal out that Comer that his decision to do so voluntary, jurisdiction months of we lack take radio and television within six to hearing pending appeal action with to his evidentiary speculate respect away once other than to dismiss it. counsel privileges those will be taken Habeas litigation acknowledge There no evidence in their brief that “the order this ends. this, aby majority himself attributes these Comer entered Utah, in his own in improvements improvement Court Gilmore (1976), Next, behavior. habeas counsel contend 50 L.Ed.2d disem- stop be the reason for this powers remorse cannot true court intervene person if the opposes Comer’s decision because he such execution who is it penalty. They validly right [sic death also assert that is be executed waves ] appeal.” sug- vintage, Regardless, they of recent therefore must be a habeas However, “knowing” to the wasn’t be- response gest, fabrication. Comer’s waiver “knowing” stated it could until it is questions, district court’s Comer cause not be changed he has what will that his views have as known this court do with matured, They majority’s personal appeal. and he reconciled his surmise order, accep- January opposition penalty the death which asked coun- appropriate tance of his sel to assume that the district court erred punishment denying original peti- the crimes committed. The district habeas he Comer’s exploration and that were rights court’s conditions tion his constitutional trial, during and their effect on in fact his state Comer’s confinement violated impossi- his decision exhaustive. It is this court is of the view that Comer should so, they propose have a trial.3 If al of petition, new his habeas and his testimony way aget proper waiver of Comer’s evidentiary hearing reveals that he federal habeas is for this court was aware of the prospects and took the first to announce its intention to reverse the probability of reversal into account district court on its resolution reaching his decision to ap- withdraw his petition inquire and then to of peal. He left no doubt that he understood whether —with knowledge Comer of that good how a case habeas counsel thought he prospect relinquish elects to had; indeed, testified, they be- —he to and a new trial.4 reversal appeal “likely lieved his will be successful as to his death sentence” and “I think it cannot gainsaid

Of course be that if they’re right.” recognizes He that even if appeal Comer were to know how his would his conviction for murder is not over- out, come in position he would be a turned, might get he a different sentence. superior knowledge to that which he now displays He insight considerable into the every has. So would defendant who appeal issues on they and how apt are right by waives his constitutional to a trial play out. And he thought has through a in entering plea guilty position be a respond how he would in the event rever- superior if knowledge he knew advance short, sal were to occur. In as a matter of precisely how trial would turn out. fact, fully Comer’s decision is by informed every Likewise defendant who waives his risks, an understanding of the benefits and right by jury to be tried a would know consequences of pursuing the appeal. more if he knew deciding opt before for odds, Knowing the repeatedly has a bench trial he would fare in how front of adhered to his choice including, spe- as his each trier of fact. no question There is represented, cial counsel recently as as the waiver of constitutional right, day argument before in our court. trial, whether to or appeal, direct to be by jury, represented tried a or to be by preview, No one is entitled to a let alone counsel, competently must be and know- advisory opinion, from the court. Ha- ingly, voluntarily, made; intelligently appear beas counsel to acknowledge this suggested but no case has ever that a otherwise, argue but believing they waiver cannot if knowing be it is not in- [cjourt’s “must questions assume from the by hindsight. Every formed defendant preliminary its examination of the right has the a right long waive so case left it has confronted with [the] stark the court is satisfied that he is competent reality simply [that this is not a case in- and uncoerced and has taken the relevant but, volving a death sentence hypothesi, ex into account. considerations That is clear- a involving case an unconstitutional death ly the case here. circumstances,” “Under these sentence].” submit, they Comer was advised “it not counsel forbidden to adhere prospects for reversal on publish simply from deni- to that view or to it because objected majority’s January I to the truly 4. Counsel do not comment on a whether precisely phrasing ap- 2005 order because its knowing pan- can be decision made after the peared telegraph particular result. As it down, opinion el’s comes or whether it can out, interpreted turned habeas counsel only petition be after the full court acts on a indicating "preliminary order as consider- banc, rehearing for en or whether it needs to ation of the merits” that "left this Court of the Supreme wait until after Court has ruled that, appeal, view if Mr. Comer waives his he petition on a for writ of certiorari. waiving will be to a reversal of the judgment ruling District Court's and to a enti- tling him to a new trial.” yet had been penalty then a choice to death statute may make

Mr. Comer reviewed, view consequence and retroac- and that his counsels’ relinquish the eventually I it moot constitutional issues.” there was a chance that would tively many levels. trial court disagree on held unconstitutional. The rights. him of “Gilmore stated advised about Nothing ever be assumed should languish prison he did not ‘care any case from questions the outcome of day,’ another that the was his decision Questions can be asked posed judge. own, and had not the deci- that he made having nothing to do for a host of reasons drugs sion as result of influence of any predetermined view of the merits. way or as a he alcohol result posed if in this case questions But even the n. prison.” treated in Id. signal propounded those who did where C.J., He (Burger, concurring). go, coming might were from and them told the that he also Utah counsel, counsel, special and Comer any appeal and to with- opposed wished queries and their were well aware of appeal the previously draw filed without in implications, yet persisted Comer has establishing consent. the his With record appeal. his decision to withdraw habeas knowing intelligent a waiver Gil- Beyond this, the decision that habeas review, right appellate more’s to seek advisory, in contemplates counsel is either Justice was Chief concluded the Court meaningless, which case it or it is for is jurisdiction to the “next without entertain real, in it ignored. which case cannot be application no friend” because there was a final How Comer could “withdraw” from dispute and the present between Gilmore judgment ordering the writ to issue es- - Id. at State Utah. 97 S.Ct. capes Finally, importantly, me. and most C.J., (Burger, concurring). Justice White I, nothing majority, might or state footing dissented on the that “the consent can imply on the merits matter because a in a case of convicted defendant criminal jurisdiction say anything we have no to at privilege impose does not to State all. by the punishment otherwise forbidden Gilmore makes this clear. There Eighth Id. at Amendment.” S.Ct. Gilmore, Gary “next friend” of a convicted (White, J., dissenting). no He saw murderer had who been sentenced jurisdictional addressing barrier death, application stay filed an of exe- for friend” petition merits the “next be- in cution Court. The Court cause, view, in his Gilmore could not waive have standing noted she would had question, resolution the serious concern- only Gilmore, if had right who waived validity ing the constitutional of his death law, appeal incompetent under state sentence. major- to do so. The record convinced the However views forceful Justice White’s ity that he knowingly intelligently had be, may they in are just were dissent. We done that. 429 at U.S. 97 S.Ct. which, obliged to follow Court’s order Burger 436. As Chief Justice observed it, order, puts as habeas opinion concurring “disempowers in the counsel Court’s stop had this court intervene and such an knowledge right Gilmore full of his if appeal, including attorneys person that his be- execution the who to be execut- validly right lieved there habeas grounds ] were substantial ed waves to a [sic appeal, constitutionality appeal.”5 of Utah’s Bennett, referring application

5. See also Evans “next friend” to the full (in S.Ct. 59 L.Ed.2d 756 cham- light court in dissents but in Gilmore Justice, opinion by Rehnquist, bers Circuit seeking That Comer is to withdraw his Upholding Comer’s decision to terminate counsel, habeas himself—rather than next habeas and to ap- withdraw the seeking stay friend his stead to execu- peal though even he signed had filing onto ju- no Although it, tion—is of moment. was well within the district court’s dis- addressing risdictional basis for the issue event, cretion. In whether or not is different because the district court and (as habeas counsel are now terminated I jurisdiction we have over Comer’s are) they believe effectively are in the (until withdrawn), petition it is whereas a position friend,” of a “next Comer is not “next Mend” must establish standing to precluded withdrawing ap- his habeas action, bring inquiry the bottom line is peal simply on account of the fact that he competently the same: has the defendant originally had consented to filing counsel’s forego decided further relief his own Otherwise, it. Rees would not have come See, Rees, e.g., behalf. at U.S. There, out as it petition did. for cer- 1505; Whitmore, 165-66, tiorari was filed with the defendant’s con- 1717; Dennis, 378 F.3d at 888- sent but he thereafter directed counsel to withdraw it and to forego further legal proceedings. consequential Nor is it origi- that Comer nally appeared to consent to habeas coun- short, In we have no to reach the representation sel’s and to filing of merits. We must affirm the district papers in court. this Comer has moved to ruling. court’s And I would. counsel,

discharge habeas and the district

court found that .he competent to ter- representation

minate their

decision to do so was voluntary. He ex-

plained to the district court that even

though it looked inconsistent for him to file appeal

a notice of sought he to with-

draw, if he had it to again, do over know- knows,

ing what he now he would not have

appealed. said that signed he

form at the time for lawyer, not be- personally

cause he wanted to appeal. it); dissents, denying 732, Wolff, the Court Lenhard v. more and Lenhard id. at 29, J., (1979) (Marshall, dissenting)). 100 S.Ct. S.Ct. L.Ed.2d 20 (same, over dissent Justice Marshall assert- considering analogous problems Circuit cases See, in accordance with the Gilmore dissent e.g., are consistent with this rule. United Arevalo, that the consent of convicted defendant in a States v. 408 F.3d privilege Cir.2005) criminal does case the state to (holding appeal that once an is vol- impose dismissed, punishment an untarily unconstitutional appellate longer courts no right jurisdiction the defendant has no ap- to "state- have over the merits of the suicide,” peal, administered citing id. at law to the same effect 29); Texas, Fifth, Circuits); Hammett v. Sixth and Seventh United Jeronimo, (per 65 L.Ed.2d 1086 cu- States v. 1152-53 riam) (9th Cir.2005) (granting (recognizing motion of inmate appellate death-row petition jurisdiction to withdraw for a writ of certiorari court lacks to consider merits of any question compe- the absence of about his when there is a valid enforce- tence, reflecting over dissent appeal). views of the Gil- able waiver of the

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 13, 2006

Citation: 463 F.3d 934

Docket Number: 98-99003

Court Abbreviation: 9th Cir.