463 F.3d 934 (9th Cir. 2006), 98-99003, Comer v. Schriro

Docket Nº:98-99003.
Citation:463 F.3d 934
Party Name:Robert Charles COMER, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, of Arizona Department of Corrections, Respondent-Appellee.
Case Date:September 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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463 F.3d 934 (9th Cir. 2006)

Robert Charles COMER, Petitioner-Appellant,


Dora B. SCHRIRO, Director, of Arizona Department of Corrections, Respondent-Appellee.

No. 98-99003.

United States Court of Appeals, Ninth Circuit.

Sept. 13, 2006

Argued and Submitted May 17, 2005.

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Denise I. Young, Tucson, AZ; Julie S. Hall, Tucson, AZ, for the petitioner-appellant.

Michael D. Kimerer, Phoenix, AZ; Holly R. Gieszl, Phoenix, AZ, special counsel for petitioner-appellant.

John Pressley Todd, Assistant Attorney General, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-94-01469-ROS.


FERGUSON, Circuit Judge.

Arizona death row prisoner, Robert Charles Comer ("Comer"), appealed the District Court's denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction and capital sentence for first degree murder, armed robbery, kidnapping,

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aggravated assault, sexual assault, and sexual abuse. Before Comer's appeal could be heard, however, the State of Arizona (the "State") and Comer filed motions to dismiss the appeal because Comer expressed his desire to be executed. On remand from this Court, the District Court held an evidentiary hearing and found Comer to have competently and voluntarily waived his habeas appeal right. Habeas Counsel now challenges that determination on appeal.

We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State's and Comer's motions to dismiss the appeal and proceed to review the District Court's denial of Comer's federal habeas petition.

We hold that Comer's sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer's due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.



The facts of this case are deeply disturbing. Comer, his companion Juneva Willis ("Willis"), and Willis's two children arrived at the Burnt Corral campground in Apache Lake, Arizona on February 2, 1987. The next evening, Comer invited a nearby camper, Larry Pritchard, to dine with him and Willis, and, after the meal, Comer shot him in the head. It is unclear whether Pritchard died immediately from the gunshot wound or later on. Comer later stabbed him in the neck. Comer then removed an Emergency Medical Technician ("EMT") badge from Pritchard's pocket, and Willis hid Pritchard's body by covering it with wood. After the murder, Comer and Willis drove to Pritchard's campsite, where they stole a number of Pritchard's belongings, as well as his dog.

Comer and Willis then proceeded to the campsite of Jane Jones and Richard Smith, campers whom they had met earlier that day. Remembering from their earlier encounter that Jones and Smith were in possession of a small quantity of marijuana, Comer and Willis posed as "Arizona Drug Enforcement" officers, and ordered them out of their tent at gunpoint. Comer flashed the EMT badge and then tied up Jones and Smith with wire and duct tape. He put them in their truck and stole several items from their tent.

Comer then drove Jones's and Smith's truck, while Willis followed behind in his. After a short time, Willis stopped following Comer. When Jones asked to relieve herself, Comer permitted her to do so but accompanied her into the woods and sexually assaulted her. He then sexually assaulted her again in front of the truck. Comer threatened to kill Smith but Jones convinced him not to do so. Comer instead left Smith in the woods and drove off with Jones. When the truck ran out of gas, Comer and Jones walked back to Willis, and the three of them then drove together, along with Willis's two children. During this journey, Comer shot and killed Pritchard's dog, and sexually abused Jones twice more.

Jones managed to escape while Comer was fixing his truck. She was later picked

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up by a passing motorist and taken to the sheriff's home. Smith, too, had managed to walk back to the Burnt Corral campground and had reported the incident to the Department of Public Safety. The police quickly apprehended Comer and Willis.


Comer and Willis were charged in Maricopa County with the first degree murder and armed robbery of Pritchard and the armed robbery, kidnapping, and aggravated assault of Jones and Smith. In addition, Comer was charged with two counts of sexual abuse and three counts of sexual assault of Jones. Willis subsequently pled guilty to one count of kidnapping in exchange for agreeing to testify against Comer. The other charges against her were dropped.

Convictions and Sentence

Comer was absent from the courtroom throughout his 1988 state trial for capital murder. After seven days of hearing evidence, a jury found Comer guilty on all counts.

Comer was physically present in the courtroom for the first time on the day of his sentencing. He was shackled to a wheelchair and, except for a cloth draped over his genitals, he was naked. His body was slumped to one side and his head drooped toward his shoulder. He had visible abrasions on his body. After asking both the court deputy and a prison psychiatrist whether Comer was conscious, the state trial judge sentenced him to death for the murder of Pritchard and to aggravated, consecutive terms of imprisonment for the other offenses.

On direct appeal, the Arizona Supreme Court affirmed the convictions and sentence. Comer, 799 P.2d at 350.

State Post-Conviction Relief

On October 24, 1991, Comer filed a petition for post-conviction relief in state court challenging the constitutionality of his conviction and sentence. On November 10, 1992, the superior court denied the petition on the ground that Comer's claims were largely precluded and waived. The Arizona Supreme Court denied the petition for review on September 21, 1993, and the U.S. Supreme Court denied the petition for certiorari on April 4, 1994.

Federal Habeas Corpus Petition

On July 19, 1994, Comer filed a federal habeas corpus petition with the District Court of Arizona. He later filed an amended petition on March 16, 1995. 2 On August 2, 1996, the District Court found that Comer had procedurally defaulted on all his habeas claims except Claims I, II, III(A), III(B)(1), III(C) (in part), V(A), V(B), XIII, XX(C)(4), and XX(D), which largely concerned errors at trial and ineffective assistance of defense counsel. 3 The

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District Court considered the merits of these claims and, on November 20, 1997, denied Comer's habeas petition.

Appeal to this Court

On February 18, 1998, Comer filed a timely notice of denial of his habeas petition. This Court has jurisdiction to hear Comer's appeal pursuant to 28 U.S.C. § 2253.

Intervening Motion to Dismiss Appeal

After filing his appeal, Comer sent letters to the State Attorney General and to the state trial judge stating that he no longer wanted his appeal to be heard and expressing his desire to die. In light of these letters, the State moved to dismiss Comer's appeal contending that this Court lacked jurisdiction to determine any aspect of the case. Comer himself also filed a pro se motion to dismiss his appeal. Comer's originally appointed counsel--now Habeas Counsel--opposed both the State's and Comer's motions and asked this Court to order a procedure to determine the validity of Comer's appeal. On September 18, 2000, the District Court appointed Special Counsel to represent Comer concerning his decision to end his appeals and proceed to execution.

Evidentiary Hearing

This Court subsequently decided to vacate the date for oral argument on the merits of Comer's appeal and held the motion to dismiss Comer's appeal in abeyance until the District Court held an evidentiary hearing on the separate questions of whether Comer was competent to terminate representation by counsel and waive legal review and, if so, whether his conditions of confinement rendered those decisions voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000).

Pursuant to our order, the District Court conducted an evidentiary hearing in March 2002. Following extensive discovery and a three-day hearing, the District Court found in a 90-page opinion that Comer was competent to waive his habeas appeal right and that his waiver was made voluntarily. Habeas Counsel appealed the District Court's judgment to this Court.

We delayed issuing a briefing schedule until the Supreme Court decided Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), did not apply retroactively to cases already final on direct review).


A. The Waiver's Validity

1. Background

We asked the District Court to hold an evidentiary hearing to determine whether Comer competently waived his habeas appeal right. Pursuant to our order, the District Court suggested to both parties that a neutral expert evaluator be appointed to assess Comer's...

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