480 F.3d 960 (9th Cir. 2007), 98-99003, Comer v. Schriro

Docket Nº:98-99003.
Citation:480 F.3d 960
Party Name:Robert Charles COMER, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, of Arizona Department of Corrections, Respondent-Appellee.
Case Date:March 15, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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480 F.3d 960 (9th Cir. 2007)

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.

March 15, 2007

Submitted March 7, 2007 [*].

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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 the 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.



After appealing the District Court's denial of his 28 U.S.C. § 2254 petition, Petitioner Robert Comer ("Comer") moved pro se to waive further federal proceedings, to terminate representation by his habeas counsel, and for dismissal of his appeal. A three-judge panel of our court remanded for the District Court to determine (1) whether Comer is competent to waive further proceedings and (2) whether he has chosen to do so voluntarily. See Comer v. Stewart, 215 F.3d 910 (9th Cir.2000). After extensive proceedings, the District

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Court found that Comer is competent and his decision to waive further proceedings voluntary. See Comer v. Stewart, 230 F.Supp.2d 1016 (D.Ariz.2002).

We review the District Court's finding that Comer is competent for clear error. See Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir.2001) (per curiam). We assume, without deciding, that we review de novo the District Court's determination that Comer's decision to waive further proceedings is voluntary. 1 Accordingly, we must now determine (1) whether the District Court clearly erred in finding Comer competent to waive further proceedings and (2) whether Comer's decision to waive further proceedings is voluntary. Comer's waiver of proceedings has a long history which we briefly summarize below.

A. Background

1. Comer's Waivers at Trial and Sentencing

Comer was charged with one count of first degree murder, three counts of armed robbery, two counts of aggravated assault, two counts of kidnaping, two counts of sexual abuse, and three counts of sexual assault. After Comer waived his presence at his 1988 trial, the jury found him guilty on all counts.

Comer also waived his presence at the April 8, 1988 mitigation/aggravation sentencing hearing where the parties presented evidence and argument regarding whether Comer should be sentenced to death or to life in prison.

Nor did Comer want to appear at the April 11, 1988 hearing for the pronouncement of his sentence. 2 Arizona state law, however, required that Comer be present when his sentence was pronounced. On the day of the pronouncement, Comer refused to voluntarily attend the hearing. He barricaded his cell door with a mattress and threatened jail staff with a 10-inch shank. Jail correctional officers, in order to disarm Comer and extract him from his cell, sprayed Comer with water from a fire-hose with a 150-pound water pressure capacity. Even when being sprayed with the fire hose, Comer still fought back.

A prison doctor, one day after the incident, testified that he was present at the jail on April 11, 1988 when Comer refused to come out of his cell. It was clear to the doctor that Comer was "willing and able" to do serious bodily harm to anyone who

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came within his reach. The doctor considered it a potentially lethal situation, to both Mr. Comer as well as any of the guards there, that was handled in a "very humane manner with no one getting hurt." 3 The District Court later concluded that Comer gave officers no choice but to remove Comer from his cell by force.

After finally disarming Comer, jail correctional officers brought Comer to the sentencing courtroom in a wheelchair, his head slumped to one side, apparently unclothed except for a blanket covering his lap, with a contusion on his forehead. At the trial court's request, a medical doctor checked Comer to see if Comer was conscious and aware. In the doctor's opinion, Comer was competent and conscious throughout all of the court proceedings on April 11, 1988.

The complete transcript of the April 11, 1988 pronouncement of sentence supports the doctor's opinion that Comer understood the proceedings. 4 Despite his physical appearance, Comer was responsive to the judge's questions. For example, when told by the prison doctor that he (Comer) was "in court in front of the Judge," Comer responded "I know." When the trial judge asked Comer, "I know you don't want to be here today, is that right?," Comer responded: "We made it though, huh?" When the Court replied "I guess we did but I'll tell you--," Comer interjected "With a little help from my friends, man." The trial court then explained to Comer:

Arizona law requires that you have to be here at the time of sentencing and that is why you are here. [¶] I wish I could accommodate your wish not to be here but because the law says you have to be here. That is why they had to bring you up. Do you understand that?

Comer responded: "Yeah."

After the trial court read to Comer the counts of conviction, the trial court noted that Comer had already served 431 days in custody. When asked "Does that number of days sound right to you, Mr. Comer?," Comer replied: "Yeah." The trial court then asked Comer whether there was "anything you want to say now before I pronounce sentence?" Comer responded: "Yeah. Are you going to sentence me for the piece, the tool?" The trial court replied "We are going to get into that later...."

After Comer twice more stated he had nothing he wished to say before the pronouncement of his sentence, the trial court sentenced Comer to death for the murder and to aggravated, consecutive terms of imprisonment on the remaining counts, resulting in a sentence of imprisonment totaling 339 years.

2. Comer's Claims Regarding His Appearance at Sentencing, Raised For First Time in Federal Habeas Proceedings, Were Later Expressly Ruled Procedurally Barred By State Courts

In 1990, the Arizona Supreme Court affirmed Comer's convictions and sentences.

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In 1993, the Arizona Supreme Court denied Comer's petition for review of the trial court's 1992 denial of Comer's first state post-conviction petition. Neither on direct appeal nor in his first state post-conviction petition did Comer claim that his constitutional rights were violated because his sentence was pronounced when he was nearly naked and slumped in a wheelchair.

Comer raised his appearance at sentencing claims for the first time in his amended 28 U.S.C. § 2254 petition filed in 1995 in federal district court. Specifically, Comer argued that (1) sentencing him while he was unclothed and semi-conscious violated the Fourteenth Amendment by impairing his Eighth Amendment right to allocution and (2) sentencing him while he was unclothed violated the Fourteenth Amendment. The District Court ruled that Comer's appearance at sentencing claims were unexhausted and, after concluding that Comer's unexhausted claims were now procedurally precluded by state court rule, denied Comer's motion to hold his 2254 petition in abeyance pending exhaustion. 5

When Comer later returned to state court and raised his appearance at sentencing claims in his second state post-conviction petition, the state trial court in 1998 dismissed the entire second state post-conviction petition as procedurally barred 6 and ruled specifically that Comer's appearance at sentencing claims were procedurally barred. 7 In 1999, the Arizona Supreme Court denied Comer's petition for review. 8

B. Analysis

If Comer is competent to waive further proceedings, then we need not, and indeed cannot, decide whether any of Comer's claims have merit or are procedurally barred because there is no dispute remaining between the parties. See Gilmore v. Utah, 429 U.S. 1012, 1016-17, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (Burger, C.J., concurring) (once a competent petitioner waives further review, the court lacks jurisdiction to consider other issues no matter their merit); see also Massie ex rel. Kroll, 244 F.3d at 1194 (whether petitioner's "conviction and sentence meet federal constitutional standards is not now before us").

Thus, the only questions before us now are (1) whether the District Court clearly erred in determining that Comer is competent, see Massie ex rel. Kroll, 244 F.3d at 1194, and (2) whether Comer's decision to waive further proceedings is voluntary. 9

The District Court, after extensive proceedings and a meticulous analysis, found Comer competent. See Comer, 230 F.Supp.2d at 1034-63. Because no party before this Court, including habeas counsel, disputes Comer's competency, there is

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no issue before this Court as to Comer's competency. 10 Cf. Gilmore, 429 U.S. at 1016-17, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (Burger, C.J., concurring) (federal courts have jurisdiction only over "cases and controversies" and lack jurisdiction over questions undisputed by the parties).

Habeas counsel argue instead that Comer's decision to waive further proceedings is involuntary and constitutionally invalid due to harsh prison conditions. 11 A waiver of constitutional rights is voluntary if, under the totality of the...

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