Comer v. Stewart

Decision Date06 June 2000
Docket NumberNo. 98-99003,98-99003
Citation215 F.3d 910
Parties(9th Cir. 2000) ROBERT CHARLES COMER, Petitioner-Appellant, v. TERRY L. STEWART, Director, Department of Corrections, Respondent-Appellee. Filed
CourtU.S. Court of Appeals — Ninth Circuit

Peter J. Eckerstrom, Tucson, Arizona; Julie S. Hall, Tucson, Arizona, for the petitioner-appellant.

Jon G. Anderson, Assistant Attorney General, Phoenix, Arizona, 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-94-1469-ROS

Before: Harry Pregerson, Warren J. Ferguson, and Pamela Ann Rymer, Circuit Judges.


FERGUSON, Circuit Judge:

An appeal is pending in this court from the district court's denial of Robert Charles Comer's habeas corpus petition challenging the constitutionality of his state conviction and death sentence. The State of Arizona has filed a motion to dismiss Mr. Comer's appeal, contending that we lack jurisdiction to determine any aspect of his case because he has recently stated that he no longer wants this or any other federal court to hear it. Mr. Comer has also filed a pro se motion to dismiss his appeal, in which he asserts many of the State's arguments and claims that he has not authorized his counsel to file any pleading on his behalf. Mr. Comer's counsel oppose these motions, asking that we order a "responsible procedure for determining" the validity of Mr. Comer's purported decision. We have vacated the date for oral argument on the merits of Mr. Comer's appeal. The motions will be held in abeyance until the district court holds an evidentiary hearing on the separate questions of whether Mr. Comer is competent to waive his appeal and, if so, whether his decision is voluntary. We publish this order because we believe that the public should be made aware of all matters pertaining to capital cases, including the reasoning underlying our decisions.


Mr. Comer was absent from the courtroom throughout his 1988 state trial for capital murder. After seven days of hearing evidence, a jury convicted him of one count of first degree murder, three counts of armed robbery, two counts of aggravated assault, two counts of kidnapping, two counts of sexual abuse, and three counts of sexual assault.

Mr. Comer was physically present in the courtroom for the first time on the day of 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 Mr. Comer was conscious, the state trial judge sentenced him to death.

Mr. Comer appealed to the Arizona courts for relief from his conviction and sentence. On direct appeal, the Arizona Supreme Court affirmed. He then filed a petition for postconviction relief in Arizona's Superior Court, which it denied. The Arizona Supreme Court denied his petition for review and the United States Supreme Court denied his petition for certiorari.

Mr. Comer initiated federal habeas corpus proceedings by filing in district court a preliminary petition for writ of habeas corpus, an application for appointment of counsel, and a request for a stay of execution. He signed the pleading himself, in which he described the procedural history of his case and alleged that, "I am being held in violation of my federal constitutional rights." Mr. Comer specifically requested that the district court appoint Peter Eckerstrom, his current counsel, and John R. Hannah, Jr., of the Law Offices of the Federal Public Defender in Arizona, to represent him. He also asked the court to both provide his attorneys with sufficient time to file an amended petition and to grant a stay of execution. In support of his request for the appointment of counsel, he signed an affidavit attesting to his indigence.

When Mr. Comer returned to state court with his federal constitutional claims, he personally verified the petition and repeated that he had given his consent to his counsel to proceed. He stated on that form that the petition contained every ground of which he was aware for granting a writ of habeas corpus. Further, he wrote that "Peter J. Eckerstrom is authorized to represent me in this matter. The pleadings he has already filed are authorized by me."

The federal district court denied his petition. He then appealed to this court for relief from the district court's decision. Although Mr. Comer's appeal raises serious questions about the constitutionality of his conviction and sentence, we must first decide the instant motions to dismiss the appeal.


The State claims in its motion that Mr. Comer does not wish to pursue further legal remedies. To bolster its argument that a hearing is unnecessary because Mr Comer is competent, the State attaches several letters that he has recently written. The first is a letter to Janet Napolitano, the Attorney General of Arizona. In the letter, Mr. Comer insists that he has never appealed his case, although, as described above, the record indicates otherwise. He also writes that he has never asked anyone to represent him, even though he in fact signed forms on two separate occasions requesting the district court to appoint his current counsel and authorizing them to proceed on his behalf. He next tells the Attorney General that he requested "that ZOG1 lawyer Denise Young and the other ZOG lawyer, the one they call the `attorney of record,' Julie Hall to pull my appeal." By contrast, his lead counsel, Peter Eckerstrom, asserts that he first received word of Mr. Comer's desire to waive federal review at the end of March, 2000, when a state judge forwarded letters from Mr. Comer expressing a desire to expedite his execution. Mr. Eckerstrom has also informed this court that Mr. Comer has never directly told him that he wishes to withdraw his consent from his lawyers to proceed. The petitioner's letter to the Attorney General adds that his lawyers are conspiring against him by acting on behalf of the "anti death penalty folks." He ends his letter by assuring the Attorney General that, "I'm sure if your people file a motion and there is something there from me in support of you all, well we should be able to get my happy feet on there [sic] merry way! One Nation under ZOG, AMEN!"

The State also attaches Mr. Comer's letter to the state judge who both presided over his trial and denied his state postconviction petition. He makes clear in this letter that he believes that there is a vast conspiracy, involving the judiciary, his counsel, and the Attorney General's Office, designed to prolong his life. He tells the judge, whom he calls "Ol Judge," that he "can see how all you little jews are getting rich here. You all just keep it rolling right along, collecting your dollars and rolling right along." He insists that, "NOBODY represents me for nothing," that he does not "believe in your ZOG system," and adds that, "your jew system applies not to me." Mr. Comer closes his letter by challenging the judge to "get together with your ZOG" people and obtain an execution warrant. He promises that, in exchange, "I'll get ya a free ticket, come see the show! Ha Ha Ha."

The State also attaches to its motion another letter from Mr. Comer to the state court judge. Mr. Comer maintains his belief that he has never once appealed his conviction and sentence nor asked his lawyers to proceed on his behalf. Although Mr. Comer's attorneys inform this court that they have previously visited and discussed his federal habeas corpus petition with him, he demands an explanation for why his appeal continues when, "I've never appealed anything and never asked for a lawyer nor ever saw any lawyers? " He suggests that the judge secure the services of a "ZOG bud" who might be willing to help him "over the curb!" He ends this letter by urging the state judge to, "think about it Ronnie. I know your hands are pretty much tied, but hell, even though you are a ZOG, you aren't half bad, so, please help me a little."

Finally, the State attaches a motion that Mr. Comer sent to the Supreme Court of Arizona requesting a warrant of execution. He twice insists in this motion that he has never appealed his case and adds that he has never asked for an attorney to represent him. He then claims that he instructed his attorney to withdraw his appeal, only to be ignored. He states that his lawyers are acting not in his interests, but for those of the "anti-death penalty focus agenda."

In addition to the State's motion to dismiss this appeal, we received Mr. Comer's pro se motion to dismiss, along with an accompanying note. Mr. Comer repeats, "I have never asked for nor required anyone to represent me." He writes that he knows that the "Attorney General has filled [sic] a motion also in this matter" and agrees with it. In the accompanying note, Mr. Comer writes that, "I have been incarcerated in a sensory deprivation unit for 12 year's [sic] now, longer than anyone in the United States . . . ." He concedes that such conditions have "been known to cause a few people to wig out," but insists that he is not one of them. He warns us that "some might point out that I `pace' my cell from morning to night," but asserts that he walks to avoid becoming "a veggie." He admits that "in a legal sense of sanity or competency, I may not be 100% sane or competent, but I assure you I'm not much less then [sic] 90%! Ask Anybody!" He stamps the note with a print of his right thumb "in case my `attorney of record' denies this is me," and signs it "Gypsy."


The State of Arizona has moved this court to dismiss Mr. Comer's appeal for want of jurisdiction.2 It argues that we do not have jurisdiction to order a hearing because his counsel have failed to present sufficient evidence showing that he is incompetent. Alternatively, it argues that the...

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