Comer v. Schriro ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT CHARLES COMER, 
Petitioner-Appellant,
No. 98-99003
v.
DORA B. SCHRIRO, Director, of  D.C. No.
CV-94-01469-ROS
Arizona Department of
ORDER
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
May 17, 2005—Pasadena, California
Filed August 10, 2006
Before: Harry Pregerson, Warren J. Ferguson, and
Pamela Ann Rymer, Circuit Judges.
Order;
Concurrence by Judge Ferguson;
Dissent by Judge Rymer
ORDER
Appellant Comer’s pro se motions received February 3,
2006, are ordered filed and are hereby denied.
9339
9340 COMER v. SCHRIRO
FERGUSON, Circuit Judge, with whom PREGERSON, Cir-
cuit Judge, joins, concurring:
Judge Rymer is correct in setting forth the tortured history
of this case. The case creates an issue that denigrates constitu-
tional rights, thus the delay in reaching a decision.
Comer wants to be executed. I maintain that the right to die
is not synonymous with the right to kill. Comer’s appointed
habeas corpus counsel demonstrated serious due process vio-
lations by the judicial system against Comer that must be
answered. The most troubling incident being that at his sen-
tencing hearing in state court, Comer was brought into the
courtroom battered, shackled, and naked except for a towel
over his genitals.
RYMER, Circuit Judge, dissenting:
After Comer’s habeas counsel filed a notice of appeal from
denial of his petition for a writ of habeas corpus on February
13, 1998, he sought to terminate counsel’s representation and
to withdraw his appeal. Acting on Comer’s requests, the state
moved to dismiss in April 2000. On June 6, 2000 we
remanded to the district court for an evidentiary hearing on
whether Comer was competent to do this, and to determine
whether his decision was voluntary. Comer v. Stewart, 215
F.3d 910 (9th Cir. 2000) (Comer I). The court held a three-
day evidentiary hearing and rendered its decision October 16,
2002 finding that Comer was competent and that his decision
to withdraw his appeal was voluntary. Comer v. Stewart, 230
F. Supp. 2d 1016 (D.Ariz. 2002).
Habeas counsel appealed this decision. Sua sponte, the
majority stayed further action pending the outcome of en banc
proceedings in Summerlin v. Stewart, 267 F.3d 926 (9th Cir.
2001), as to whether Ring v. Arizona, 536 U.S. 584 (2002),
COMER v. SCHRIRO 9341
was retroactive on collateral review. Comer v. Stewart, 312
F.3d 1157 (9th Cir. 2002) (Comer II). I disagreed with this
order, id. at 1158, but regardless, once the Supreme Court
definitively ruled that Ring does not apply retroactively to
habeas petitions, Schriro v. Summerlin, 542 U.S. 348 (2004),
rev’g Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (en
banc), there was no excuse for not ruling on the state’s motion
to dismiss. However, again sua sponte, the majority on Janu-
ary 20, 2005 ordered the parties to brief whether Comer can
waive his pending habeas appeal if the district court erred in
denying his original habeas petition and his constitutional
rights were in fact violated during his state trial. They did, and
we heard oral argument on May 17, 2005.
We are now mid-way through 2006 without a ruling on the
motions on which we reserved judgment on June 6, 2000.
More than a year has gone by since oral argument. Not sur-
prisingly, Comer has filed papers complaining about this
court’s inaction. He repeats the request that his habeas law-
yers be removed, and that all papers filed by habeas counsel
since November 2000 be striken. Comer asks that this panel
either rule or turn the case over to another panel. The state
agrees that the court should expeditiously rule on the matter
before it.
So do I. There is no reason for not ruling; we have had
plenty of time to give full and fair consideration to all sides
of all issues. Comer and the people of Arizona are entitled to
a decision, and we have a duty to render one. See In re Blod-
gett, 502 U.S. 236, 239 (1992) (per curiam).
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