Comer v. Stewart, CV-94-1469-PHX-ROS.

Decision Date16 October 2002
Docket NumberNo. CV-94-1469-PHX-ROS.,CV-94-1469-PHX-ROS.
Citation230 F.Supp.2d 1016
PartiesRobert Charles COMER, Petitioner, v. Terry STEWART, et al., Respondents.
CourtU.S. District Court — District of Arizona

Michael D. Kimerer, Holly R. Gieszl, Kimerer & Derrick PC, Phoenix, AZ, Peter James Eckerstrom, Denise I. Young, Julie Singleton Hall, Tucson, AZ, for Petitioner.

Michael L. Brodsky, Office of the Attorney General, John Presley Todd, Phoenix, AZ, for Respondents.


(Death Penalty)

SILVER, District Judge.

The Court issued an Order on June 20, 2002, announcing its decision and finding that Petitioner Robert Comer was competent to dismiss habeas counsel and to forego further legal review, and that he made these decisions voluntarily. The Court issued an opinion setting forth its findings of fact and conclusions of law on July 29, 2002. This amended opinion is issued to correct typographical and grammatical errors.


Petitioner Robert Charles Comer ("Mr.Comer") is an Arizona inmate sentenced to death for murder. Following the denial by this Court of his petition for capital habeas relief, he filed an appeal with the Ninth Circuit Court of Appeals. Respondents filed a motion to dismiss the appeal based on pro se letters written by Petitioner and mailed by him to their counsel reflecting his desire to terminate appointed habeas counsel's ("habeas counsel") representation, forego further legal review and proceed to execution. Petitioner also sent a pro se motion to dismiss his appeal to the Ninth Circuit. Habeas counsel objected to the motions and asked the Ninth Circuit to establish a procedure to determine whether Petitioner was competent to terminate representation and waive his appeal and whether his decisions were rendered involuntary because of his conditions of confinement. The Ninth Circuit granted habeas counsel's request, suspended ruling on Petitioner's motions pending remand to this Court for an evidentiary hearing regarding Petitioner's competency and the voluntariness of his decisions.

An evidentiary hearing was conducted on March 26-28, 2002. Before discussing the evidence presented at the hearing and the legal basis for this Court's decisions, the Court summarizes the circumstances involved in the filing of this action, the appointment of counsel, the denial of habeas relief and appeal and pertinent post-remand events.

I. Procedural History

On July 19, 1994, Mr. Comer filed a motion for stay of execution with a petition for habeas relief and a motion for appointment of counsel, personally signed by him. (Dkt. 1.)1 The same day, a stay of execution was entered and John R. Hannah, then with the Federal Public Defender ("FPD"), and Peter Eckerstrom were appointed as counsel for Mr. Comer. On February 28, 1997, Denise I. Young of the FPD was substituted in place of Hannah. (Dkt. 105.) Mr. Comer filed an amended petition for habeas relief. (Dkt. 28.) The Court determined that certain of the claims in the amended petition were procedurally barred and that Mr. Comer was not entitled to relief on the merits of the remaining claims. (Dkts. 86 and 111.) Mr. Comer was granted a certificate of probable cause on March 3, 1998. (Dkt. 119.)

On June 6, 2000, the Ninth Circuit remanded this matter to this Court with instructions to hold an evidentiary hearing to determine whether Mr. Comer was competent to terminate representation by counsel and forego further legal review, and whether his conditions of confinement rendered those decisions involuntary. At that time, Mr. Comer had been an inmate in the custody of the Arizona Department of Corrections ("ADOC") for twelve years. Mr. Comer was housed in Cellblock 6 ("CB6") of the Arizona State Prison in Florence, Arizona, for several months in 1988. Between 1989 and 1996, Mr. Comer was housed in Special Management Unit I ("SMU I") in the Eyman Complex of the Arizona State Prison in Florence, Arizona. Since 1996, Mr. Comer has been housed in SMU II, also in the Eyman Complex.

On June 30, 2000, Julie Hall, formerly with the FPD, was substituted for the FPD as habeas co-counsel and filed a notice of appearance. (Dkt. 122.)

On or about July 18, 2000, Mr. Comer mailed pro se a letter to Assistant Arizona Attorney General Jon Anderson, who then represented Respondents.2 (Ex. A to Dkt. 123.) In the letter, Mr. Comer thanked Anderson for his efforts seeking dismissal of Mr. Comer's appeal and suggested that Anderson represent him in his efforts to dismiss his appeal. In those letters Mr. Comer claimed he did not want to meet with his lawyers; however, he acknowledged that his daughter had at some point asked him to meet with lawyers, which he did, and he acknowledged that he did "sign a few papers ... so Pete [Eckerstrom] can get paid." He further stated that he had only learned "a month ago or so" that his automatic direct appeal had ended some time before and that he had believed "those lawyers" with whom he had met were involved in the automatic direct appeal of his conviction. (Ex. A at 3 to Dkt. 123.) Mr. Comer accused habeas counsel of having disseminated lies about him by calling him "delusional" and "mentally damaged." (Id.) Mr. Comer provided Anderson with the names of corrections officers he thought could or would verify his competence. (Id.)

On July 20, 2000, Respondents filed a motion for determination of counsel for Mr. Comer based in part on one of Mr. Comer's letters. (Dkt. 123.) On July 25, 2000, Mr. Comer filed pro se motions to attend any and all proceedings, and to either substitute new counsel or to allow him to represent himself. (Dkts. 124 and 126.)

A status hearing was held on August 25, 2000, on the motion for determination of counsel.3 Mr. Comer appeared by video-conference from a secure location in Florence Arizona. (Dkt. 131.) After hearing oral argument on the motion to disqualify, the Court denied the motion finding no basis to disqualify the Attorney General's Office based on its asserted interference with the attorney-client relationship, nor did the Court find a basis for an alleged violation of Mr. Comer's Fifth and Sixth Amendment rights. (Dkts. 136 & 138.)

The Court also considered whether the attorney-client relationship between Mr. Comer and habeas counsel had been irreconcilably broken. Habeas counsel explained that while the attorney-client relationship was strained because habeas counsel sought a determination that Mr. Comer was incompetent to abandon his appeal and dismiss them as counsel, they remained committed to appropriately representing what they believed to be Mr. Comer's "rational interests" pending a determination of Mr. Comer's competency and the voluntariness issue. (R.T. 8/25/00 at 50-51.)4 During a sealed portion of the hearing with only habeas counsel and Mr. Comer, Mr. Comer strenuously expressed his unwillingness to communicate or cooperate with habeas counsel if they questioned his decision to abandon his appeal, and his competence to do so. Habeas counsel opined that Mr. Comer was unlikely to cooperate with any attorney who did not accede to his decision.

On September 18, 2000, the Court granted Respondents' motion, but ordered habeas counsel to continue to represent Mr. Comer in connection with his habeas claims pending a determination of competency and voluntariness.5 (Dkt. 138.) Concomitantly, and in accordance with the procedure embraced by the Ninth Circuit in Mason v. Vasquez, 5 F.3d 1220, 1223 (9th Cir.1993), the Court appointed Michael Kimerer, Esq., a certified Arizona State Bar criminal specialist, whose firm is A-V rated, and who enjoys an excellent reputation in the legal community as special counsel, to represent Mr. Comer concerning his expressed decisions to end his appeals and proceed to execution.6 (Id.) The Court instructed Mr. Kimerer ("Special Counsel") to first assess whether he believed Mr. Comer intended to waive his appeal and, if he did, to continually reassess Mr. Comer's decision. If at any time Mr. Comer wavered in his decision, or if Mr. Kimerer determined that Mr. Comer was not competent or his decision was not voluntary, Mr. Kimerer was to immediately inform the Court.

On November 3, 2000, the Court ordered the Director of ADOC, Terry Stewart, to surrender custody of Mr. Comer to the United States Marshal ("USM") for transport to the United States Medical Facility in Springfield, Missouri, for a complete psychiatric/psychological evaluation of his mental competence.7 (Dkt. 140.) On December 8, 2000, the USM filed a motion to vacate the order to transport Mr. Comer to Springfield arguing that the Court lacked authority to compel it as a non-custodian to bear the expense of producing and transporting a state prisoner-witness for federal court proceedings under the All Writs Act, 28 U.S.C. § 1651. (Dkt. 145 at 1.) The Court denied the motion, but ordered Respondents to reimburse the USM for the costs of transporting Mr. Comer to Springfield. (Dkt. 146.) On January 31, 2001, Respondents filed a motion to stay or vacate portions of the November 3 Order, arguing that transporting Mr. Comer to and from Springfield posed an extreme security risk and that the cost of such transport, including appropriate security measures, would impose an undue hardship on Respondents. (Dkt. 151 at 1-2.) The risks posed by transportation allegedly would require "a USM Special Unit Squad ... to be brought to Arizona, and an aircraft, presently located in Louisiana, [would] need to be put into service solely for the purpose." (Id.) Respondents reported that the USM estimated the costs associated with such transport at between $30,000 and $50,000 for aircraft, fuel, and personnel. (Id.) In addition, Respondents pointed to Mr. Comer's crimes of conviction and the discipline record he had amassed, which ADOC believed warranted characterizing him as the most dangerous prisoner in its custody; his disciplinary record included a special expertise or proclivity for...

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