Comer v. Schriro

Volume 1 of 2

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
OPINION
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding

Submitted March 7, 2007*
San Francisco, California

Filed March 15, 2007

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Alex Kozinski, Pamela Ann Rymer, Andrew J. Kleinfeld,
Kim McLane Wardlaw, William A. Fletcher,
Raymond C. Fisher, Richard A. Paez, Richard C. Tallman,
Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee,
Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.

*The En Banc Court finds this case suitable for decision without further
oral argument. See Circuit Advisory Committee Note to Ninth Circuit
Rules 35-1 to 35-3, Note 3 (after the en banc court is chosen, the judges
on the panel decide whether there will be oral argument).

3113
3114 COMER v. SCHRIRO
Per Curiam Opinion;
Concurrence by Judge Paez;
Dissent by Judge Pregerson
3116 COMER v. SCHRIRO
COUNSEL

Denise I. Young, Tucson, Arizona; Julie S. Hall, Tucson, Ari-
zona, for the petitioner-appellant.

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

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

OPINION

PER CURIAM:

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

We review the District Court’s finding that Comer is com-
petent 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 deter-
1
Cf. Godinez v. Moran, 509 U.S. 389, 400 (1993) (“In addition to deter-
mining whether a defendant who seeks to waive counsel is competent, a
 COMER v. SCHRIRO 3117
mine (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 vol-
untary. 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,

trial court must satisfy itself that the waiver of his constitutional rights is
knowing and voluntary”); Moran v. Godinez, 57 F.3d 690, 698 (9th Cir.
1995), amending 40 F.3d 1567 (9th Cir. 1994) (“Whether a waiver of con-
stitutional rights was made knowingly and voluntarily is a mixed question
of law and fact which we review de novo”); Crandell v. Bunnell, 25 F.3d
754 (9th Cir. 1994) (per curiam) (reviewing de novo petitioner’s claim that
he did not voluntarily waive his right to counsel in state municipal pro-
ceedings); United States v. Amano, 229 F.3d 801, 803 (9th Cir. 2000)
(reviewing Miranda waiver de novo).
2
“There were no arguments to be heard or evidence to be taken” at the
sentence imposition hearing; it “was the time for the [sentencing] Court’s
rendition of the special verdict, a copy of which was furnished to both
counsel.” See September 22, 1998 Arizona Superior Court Order at 3 (dis-
missing second state post-conviction petition); see also August 2, 1996
3118 COMER v. SCHRIRO
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 came within his reach. The doctor considered it a poten-
tially 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

District Court Order at 27 (rejecting argument that Comer’s physical
appearance at the April 11, 1988 imposition of sentence hearing could
have affected Comer’s sentence for the state trial court “had already deter-
mined the sentence based on the evidence presented at a prior aggravation/
mitigation hearing”).
3
See August 2, 1996 District Court Order at 27; see also September 22,
1998 Arizona Superior Court Order at 3 (state trial court, in its order dis-
missing second state post-conviction petition as procedurally barred, noted
that Comer “brought the whole situation on himself”).
 COMER v. SCHRIRO 3119
opinion, Comer was competent and conscious throughout all
of the court proceedings on April 11, 1988.

The complete transcript of the April 11, 1988 pronounce-
ment 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
4
See 4/11/88 complete RT; see also September 22, 1998 Arizona Supe-
rior Court Order at 3 (state trial court, in its order dismissing second state
post-conviction petition as procedurally barred, noted that on April 11,
1988 it had determined that Comer was conscious and aware of the pro-
ceedings and there was no issue as to Comer’s competency); see also
August 2, 1996 District Court Order at 27 (District Court found that “the
record of the sentencing proceeding itself shows that [Comer] was compe-
tent”).
3120 COMER v. SCHRIRO
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 aggra-
vated, 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. 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 Amend-
ment. The District Court ruled that Comer’s appearance at
sentencing claims were unexhausted and, after concluding
that Comer’s unexhausted claims were now procedurally pre-
 COMER v. SCHRIRO 3121
cluded 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
barred6 and ruled specifically that Comer’s appearance at sen-
tencing claims were procedurally barred.7 In 1999, the Ari-
zona Supreme Court denied Comer’s petition for review.8

B. Analysis

[1] 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 Gil-
more v. Utah, 429 U.S. 1012, 1016-17 (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 fed-
eral constitutional standards is not now before us”).

[2] 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)
5
See August 2, 1996 District Court Order at 26, 55.
6
In the penultimate sentence of its order dismissing the second state
post-conviction petition, the state trial court added: “Further, no colorable
claim has been presented, in that no material issue of law or fact exists
which would entitle [Comer] to relief in these proceedings.” See Septem-
ber 22, 1998 Arizona Superior Court Order at 10. A state court, however,
does not vitiate a procedural bar ruling by addressing the merits of a claim
in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).
7
See September 22, 1998 Arizona Superior Court Order at 4-5, 10.
8
See December 6, 1999 Arizona Supreme Court Order.
3122 COMER v. SCHRIRO
whether Comer’s decision to waive further proceedings is vol-
untary.9

[3] 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 no issue before this Court as to Comer’s competency.10
Cf. Gilmore, 429 U.S. at 1016-17 (1976) (Burger, C.J., con-
curring) (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 constitu-
tional rights is voluntary if, under the totality of the circum-
stances, it was the product of a free and deliberate choice
rather than coercion or improper inducement.12

Habeas counsel quote passages from Comer’s letters to
counsel and insist that Comer’s letters, in combination with
9
As previously noted, we assume without deciding that we review the
District Court’s voluntariness determination de novo. See supra p. 3116 &
note 1.
10
See Habeas Counsel’s November 22, 2006 Brief Re En Banc Review
(filed under seal) at 45-60. We unseal the sealed pages cited in this opin-
ion only to the extent that unsealing is necessary for purposes of this opin-
ion. The sealed materials, including the specific pages cited herein,
otherwise remain sealed.
11
See Habeas Counsel’s November 22, 2006 Brief Re En Banc Review
(filed under seal) at 45-60; cf. Comer, 230 F. Supp. 2d at 1064-72.
12
Cf. United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998)
(Miranda waiver); Whitmore v. Arkansas, 495 U.S. 149, 165 (1990)
(“That prerequisite for ‘next friend’ standing is not satisfied where an evi-
dentiary hearing shows that the defendant has given a knowing, intelligent,
and voluntary waiver of his right to proceed, and his access to court is oth-
erwise unimpeded”).
 COMER v. SCHRIRO 3123
prison deprivations and harsh prison conditions, show that
Comer’s decision to waive further proceedings is involuntary.

Dr. Johnson, the independent psychiatric expert appointed
by the District Court, toured the prison and interviewed
Comer for numerous hours. In Comer’s district court testi-
mony, Comer agreed with Dr. Johnson’s opinion that
although prison conditions contributed to Comer’s decision to
waive further proceedings, the prison conditions were not the
most significant factor nor were they so harsh as to cause him
to abandon his natural desire to live. Comer acknowledged
that he had been through tough times when in prison, yet he
had “a hard time seeing that” prison conditions could make
him do anything. The conditions were harsh, but Comer
observed that when he stays out of trouble the conditions get
“unharsh.” Despite harsh prison conditions, Comer insists he
is competent to “pull” his appeals and his decision to do so
is voluntary.13

[4] As there is no dispute regarding Comer’s competency,
the District Court did not err in accepting Comer’s testimony
that prison conditions are not the major factor in his decision
to waive further proceedings nor are they so harsh as to force
him to abandon a natural desire to live.14 Cf. Dawson v.
Mahoney, 451 F.3d 550, 551-52 (9th Cir. 2006) (state court
did not err in accepting competent capital petitioner’s testi-
mony regarding the effect of prison conditions on his decision
to waive further proceedings over habeas counsel’s arguments
that petitioner’s reactions to harsh prison conditions rendered
his decision involuntary).
13
See State’s August 25, 2004 ER 2 at 478-79, 514, 524 (filed under
seal) & State’s August 25, 2004 ER 3 at 686-697, 712 (filed under seal).
14
When the District Court determined that Comer’s decision to waive
further proceedings is a voluntary one, the District Court implicitly
accepted Comer’s testimony as sincere and credible. See Comer, 230 F.
Supp. 2d at 1071.
3124 COMER v. SCHRIRO
[5] Because Comer is competent and has voluntarily
decided to waive further proceedings, we grant his pro se
motions to waive further proceedings, to terminate representa-
tion by habeas counsel, and for dismissal of his appeal.

APPEAL DISMISSED.

PAEZ, Circuit Judge, concurring:

Although I concur in the order dismissing this appeal, I
write separately to emphasize that, as part and parcel of the
evaluation of whether a petitioner’s waiver is knowing and
voluntary, the district court must ensure that the petitioner has
an understanding of the viability of his legal claims, particu-
larly if they have some likelihood of success. See, e.g.,
Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993) (“The pur-
pose of the ‘knowing and voluntary’ inquiry . . . is to deter-
mine whether the defendant actually does understand the
significance and consequences of a particular decision.”);
O’Rourke v. Endell, 153 F.3d 560, 568 (8th Cir. 1998) (hold-
ing that a waiver was not “knowing and voluntary” because
“[t]he court never explained to [petitioner] the significance of
his decision to waive his postconviction appeal. No one ques-
tioned him as to his understanding of the possible results of
a successful appeal, which might have included not only a
lesser sentence but a new trial with a potentially different out-
come.”).

In the section of its ruling entitled, “Legal Position and
Options Available and Rational Choices,” the district court
discussed whether Comer understood the claims raised in his
habeas petition and their potential for success. Comer v. Stew-
art, 230 F. Supp. 2d 1016, 1061-63 (D. Ariz. 2002). The court
recounted in detail how “Mr. Comer testified plainly and logi-
cally that he understands that the merits of his habeas appeal
are legally strong . . . and he is aware that the Ninth Circuit
 COMER v. SCHRIRO 3125
expressed concerns about his conviction and sentence.” Id. at
1061. The court concluded that “Mr. Comer’s testimony
makes clear that he is aware that he may have a good chance
for reversal of the death sentence and perhaps even the con-
viction,” but that he wished to halt his legal challenges even
so. Id. at 1062. The court further explained that it had initially
been “naturally perplexed with and skeptical of Mr. Comer’s
decision” but was convinced after the hearing that “his deci-
sion is a rational one.” Id. In light of the district court’s thor-
ough findings, including its finding that Comer understood his
legal claims, the district court appropriately determined that
Comer’s decision to end his appeal was knowing and volun-
tary.

PREGERSON, Circuit Judge, dissenting:

I dissent for the reasons carefully and eloquently set forth
in my brother Judge Warren Ferguson’s majority opinion filed
on September 13, 2006. See Comer v. Schriro, 463 F.3d 934
(9th Cir. 2006). That opinion, in which I wholeheartedly con-
curred, was withdrawn by the en banc court on December 29,
2006. See Comer v. Stewart, 471 F.3d 1359 (9th Cir. Dec 29,
2006). Judge Ferguson’s opinion states in full:

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 chal-
lenging his conviction and capital sentence for first
degree murder, armed robbery, kidnapping, aggra-
vated 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
3126 COMER v. SCHRIRO
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 com-
petently 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 pre-
viously 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 pro-
ceed 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.

I. FACTUAL AND PROCEDURAL
BACKGROUND1

Crime

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
1
The facts related to Comer’s crime, charges, and conviction are largely
taken from the Supreme Court of Arizona’s 1990 decision in this case. See
State v. Comer, 799 P.2d 333, 336-38 (Ariz. 1990).
 COMER v. SCHRIRO 3127
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 Prit-
chard’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 gun-
point. 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.
3128 COMER v. SCHRIRO
Jones managed to escape while Comer was fixing
his truck. She was later picked up by a passing
motorist and taken to the sheriff’s home. Smith, too,
had managed to walk back to the Burnt Corral camp-
ground and had reported the incident to the Depart-
ment of Public Safety. The police quickly
apprehended Comer and Willis.

Charges

Comer and Willis were charged in Maricopa
County with the first degree murder and armed rob-
bery of Pritchard and the armed robbery, kidnapping,
and aggravated assault of Jones and Smith. In addi-
tion, 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 kid-
napping 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.
 COMER v. SCHRIRO 3129
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 ineffec-
tive assistance of defense counsel.3 The District
2
While Comer’s habeas petition was pending, he filed a second petition
for state post-conviction relief in state court challenging the constitutional-
ity of his conviction and sentence. On September 22, 1998, the state trial
court denied the petition on the ground that Comer’s claims were proce-
durally precluded, and on December 6, 1999, the Arizona Supreme Court
denied review.
3
Specifically, these claims were: (1) the trial court’s failure and refusal
to sever counts (Claims I and II), (2) the prosecutor’s misconduct in
repeating the use of dehumanizing epithets to characterize Comer (Claim
III(A)), (3) the prosecutor’s misconduct in using invective during closing
argument (Claim III(B)(1)), (4) the prosecutor’s misrepresentation of law
3130 COMER v. SCHRIRO
Court considered the merits of these claims and, on
November 20, 1997, denied Comer’s habeas peti-
tion.

Appeal to this Court

On February 18, 1998, Comer filed a timely notice
of appeal to the Ninth Circuit challenging the Dis-
trict Court’s 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 con-

and facts during closing argument (Claim III(C)), (5) the trial court’s fail-
ure to strike two jurors for cause (Claim V(A)), (6) the trial court’s error
in impairing Comer’s exercise of peremptory challenges (Claim V(B)), (7)
the Arizona Supreme Court’s finding of “helplessness of the victim” as an
aggravating factor for sentencing (Claim XIII), (8) defense counsel’s fail-
ure to undertake an adequate mitigation investigation (Claim XX(C)(4)),
and (9) appellate counsel’s failure to raise on appeal any issue raised in
Comer’s habeas petition (Claim XX(D)).
 COMER v. SCHRIRO 3131
cerning 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 repre-
sentation 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 Dis-
trict 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 Coun-
sel 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 (2004) (holding that Ring v. Arizona,
536 U.S. 584 (2002), did not apply retroactively to
cases already final on direct review).

II. DISCUSSION

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
3132 COMER v. SCHRIRO
order, the District Court suggested to both parties
that a neutral expert evaluator be appointed to assess
Comer’s competency at the time he waived his
habeas appeal right, and that the parties confer and
suggest candidates. The District Court allowed both
parties to have access to every place Comer had
lived while incarcerated. The parties submitted pro-
posed findings of fact and conclusions of law, and
both parties were allowed to object to each other’s
proposed findings and conclusions. The District
Court thus ostensibly undertook comprehensive
steps to ensure an adequate factual determination of
Comer’s competency at the time he waived his
habeas appeal right.

The question before the District Court was
whether, giving full and fair consideration to all of
the evidence, it could be established by a preponder-
ance of the evidence that Comer is competent to
waive further legal review of his convictions and
sentences. Specifically, we directed the District
Court to determine “whether [Comer] has capacity to
appreciate his position and make a rational choice
with respect to continuing or abandoning further liti-
gation or on the other hand whether he is suffering
from a mental disease, disorder, or defect which may
substantially affect his capacity in the premises.”
Comer, 215 F.3d at 917 (quoting Rees v. Peyton, 384
U.S. 312, 314 (1966) (per curiam)).4 In arriving at
4
As the District Court noted, the three-part Rees test to determine the
capacity of an inmate to make a waiver decision has been simplified as
follows by the Fifth Circuit in Rumbaugh v. Procunier, 753 F.2d 395, 398-
99 (5th Cir. 1985):
(1) Is the person suffering from a mental disease or defect?
(2) If the person is suffering from a mental disease or defect,
does that disease or defect prevent him from understanding his
legal position and the options available to him?
 COMER v. SCHRIRO 3133
this determination, the District Court reviewed eval-
uations, reports, testimony from two psychiatrists
and one psychologist, Comer’s personal background,
and other witness testimony and exhibits to conclude
that Comer did not suffer from mental disease or
defect. See Comer, 230 F. Supp. 2d at 1061.

2. Analysis

a. Competency

The District Court’s determination as to whether
Comer was competent to waive his habeas appeal
right is a strictly factual one that we accept unless
clearly erroneous. Massie ex rel. Kroll v. Woodford,
244 F.3d 1192, 1194 (9th Cir. 2001) (citing Demos-
thenes v. Baal, 495 U.S. 731, 735 (1990)). The Dis-
trict Court rendered several preliminary
determinations to come to its conclusion that Comer
was competent when he waived his habeas appeal
right. We analyze each preliminary determination

(3) If the person is suffering from a mental disease or defect
which does not prevent him from understanding his legal position
and the options available to him, does the disease or defect, nev-
ertheless, prevent him from making a rational choice among his
options?
If the answer to the first question is no, the court need go no
further, the person is competent. If both the first and second ques-
tions are answered in the affirmative, the person is incompetent
and the third question need not be addressed. If the first question
is answered yes and the second question is answered no, the third
question is determinative; if yes, the person is incompetent, and
if no, the person is competent.
Comer, 230 F. Supp. 2d 1016, 1036-37 (quoting Rumbaugh, 753 F.2d at
398-99); accord Lonchar v. Zant, 978 F.2d 637, 641-42 (11th Cir. 1992);
Ford v. Haley, 195 F.3d 603, 615 (11th Cir. 1999).
3134 COMER v. SCHRIRO
here briefly to assess whether or not it was clearly
erroneous.

First, the District Court determined that its own
court-appointed expert, Dr. Sally Johnson, was sig-
nificantly more qualified to render a competency
opinion than Habeas Counsel’s expert, Dr. Terry
Krupers. Comer, 230 F. Supp. 2d at 1039. The Court
based this determination on evidence as to the
experts’ qualifications, in particular on the fact that,
unlike Dr. Johnson, Dr. Krupers had never engaged
in a forensic evaluation to determine the competency
of an inmate to be executed nor previously con-
ducted a forensic evaluation of an inmate sentenced
to death who wanted to dismiss his appeal. Id. More-
over, the Court found Dr. Johnson’s investigation to
be thorough and her questions especially relevant.
Id. at 1040. Given the clear difference in expert qual-
ifications between Dr. Johnson and Dr. Krupers, as
well as Dr. Johnson’s relatively superior investiga-
tion, the Court did not clearly err in affording greater
weight to Dr. Johnson’s opinions.

Second, the District Court determined that Comer
did not suffer from Major Depressive Disorder. The
Court based this determination on the accuracy of
Dr. Johnson’s differential diagnoses of Comer’s var-
ious apparent depressive episodes. Specifically, with
respect to Comer’s first apparent depressive episode
in May 1999, the Court found as credible Dr. John-
son’s attempt to distinguish the differential diagnosis
of bereavement from the symptoms that Dr. Krupers
attributed to a major depressive episode. See id. at
1042-43. With respect to Comer’s second apparent
depressive episode in Spring 2001, the Court found
as credible Dr. Johnson’s attempt to distinguish the
differential diagnosis of a general medical condition
from the symptoms that Dr. Krupers attributed to a
 COMER v. SCHRIRO 3135
second major depressive episode. See id. at 1043-44.
Finally, with respect to Comer’s apparent bouts of
depression between his two purported episodes, the
Court found as credible Dr. Johnson’s explanation
that Comer sought attention by narrating his feelings
and that he did not deny his symptoms of depression,
as Dr. Krupers had argued. See id. at 1047-48. Given
the failure of Dr. Krupers to assess possible differen-
tial diagnoses for Comer’s apparent depressive epi-
sodes, and the confidence with which Dr. Johnson
attested to such diagnoses, the District Court did not
clearly err in concluding that Comer did not suffer
from Major Depressive Disorder.

Third, the District Court determined that Comer
did not suffer from Post-Traumatic Stress Disorder
(“PTSD”). The Court based this determination on
Dr. Krupers’s inability to apply accurately the DSM-
IV criteria for PTSD.5 In particular, the Court ques-
tioned Dr. Krupers’s failure to identify credible evi-
dence with respect to the third group of PTSD
symptoms related to “increased arousal.” Id. at 1052.
According to the Court, Dr. Krupers needed to estab-
lish with sufficient certainty that Comer suffered
from two or more of the following symptoms related
to “increased arousal”: (1) difficulty falling or stay-
5
The District Court noted that
[a]part from some traumatic experience, the DSM-IV describes
three groups of symptoms for PTSD, and one or more of each
group must be suffered by the patient to establish a diagnosis of
PTSD. The first group of symptoms is that the patient is ‘persis-
tently reexperienc[ing]’ the traumatic event in at least one of vari-
ous specific ways[, including recurring or severe] ‘flashbacks’
and ‘nightmares’ . . . . The second group of symptoms . . . require
that a patient ‘[p]ersistent[ly] avoid[s] stimuli associated with the
trauma.’ . . . [The third group of] symptoms [requires] that the
person experiences ‘increased arousal’ not present before trauma.
Comer, 230 F. Supp. 2d at 1051-52 (citations omitted)
3136 COMER v. SCHRIRO
ing asleep; (2) irritability or outbursts of anger; (3)
difficulty concentrating; (4) hypervigilance; and (5)
exaggerated startle response. Id. Dr. Krupers, how-
ever, merely speculated that “most prisoners in
[Comer’s] situation” would have difficulty falling
asleep and failed to rebut Dr. Johnson’s and Comer’s
testimony as to factors (4) and (5). Id. While it is
unclear from the Court’s opinion just how narrowly
the DSM-IV criteria for PTSD are defined, the Dis-
trict Court did not clearly err in dismissing as unspe-
cific Dr. Krupers’s factual applications of the criteria
to Comer’s symptoms.

Lastly, the District Court determined that Comer
did not suffer from Segregated Housing Unit
(“SHU”) syndrome. The Court based this determina-
tion on Dr. Johnson’s and Comer’s testimony contra-
dicting Dr. Krupers’s findings concerning SHU
syndrome. Id. at 1057. The Court identified and
accepted the following characteristic symptoms of
SHU syndrome: massive free-floating anxiety,
hyperresponsiveness, derealization, difficulty with
concentration and memory, acute confusional states,
ideas of reference and persecutory idealation (para-
noia), and compulsion. Id. at 1056. The Court then
affirmed Dr. Johnson’s findings that Comer did not
exhibit these symptoms at all or at least not to the
level necessary to make an adequate showing of
SHU. See id. at 1057.

Of particular importance to the District Court was
Dr. Johnson’s prior work with patients in segregated
housing units and the fact that Comer’s own testi-
mony did not corroborate Dr. Krupers’s findings. Id.
Even though Dr. Krupers was qualified to offer his
opinion on the disorder, he did not have prior experi-
ence in diagnosing or treating inmates who suffered
 COMER v. SCHRIRO 3137
from SHU syndrome in the way that Dr. Johnson had.6
While this fact alone does not render Dr. Johnson’s
findings more accurate than Dr. Krupers’s, it does
make it more difficult to find the Court’s determina-
tion that Comer did not have SHU syndrome to be
clearly erroneous, particularly since there are no rig-
orous DSM-IV criteria for diagnosing SHU syn-
drome. See id. at 1055.

In sum, the District Court’s preliminary determi-
nations are not clearly erroneous, demonstrating that
the Court did not clearly err in determining that
Comer competently waived his habeas appeal right.

b. Voluntariness

We review de novo the District Court’s determi-
nation that Comer voluntarily waived his habeas
appeal right. See United States v. Amano, 229 F.3d
801, 803 (9th Cir. 2000).

We directed the District Court to determine
“whether [Comer’s] purported decision [to waive
further legal review] is voluntary” and “whether
[Comer’s] conditions of confinement constitute pun-
ishment so harsh that he has been forced to abandon
a natural desire to live.” Comer, 215 F.3d at 917.
The District Court determined that Comer’s waiver
was voluntary and that the conditions of his confine-
ment “have not had a substantial effect nor have they
rendered his decision involuntary.” Comer, 230 F.
Supp. 2d at 1071.

We previously summarized the legal standard to
determine voluntariness of waiver:
6
Cross-examination of Dr. Krupers included the following exchange:
“Q: Doctor, do you treat inmates in prison who suffer from what you term
SHU syndrome? A: No, I don’t.”
3138 COMER v. SCHRIRO
The Supreme Court has held that a waiver
of a petitioner’s “right to proceed” is not
valid unless, among other factors, it is
“knowing, intelligent, and voluntary.”
Whitmore v. Arkansas, 495 U.S. 149, 165
(1990) (emphasis added). “A waiver is vol-
untary if, under the totality of circum-
stances, [it] was the product of a free and
deliberate choice rather than coercion or
improper inducement.” United States v.
Doe, 155 F.3d 1070, 1074 (9th Cir. 1998).
Put differently, a decision is involuntary if
it stems from coercion — either mental or
physical. See, e.g., Brady v. United States,
397 U.S. 742, 754 (1970). Indeed, courts
have recognized that a decision to waive
the right to pursue legal remedies is invol-
untary if it results from duress, including
conditions of confinement. See, e.g., Smith
v. Armontrout, 812 F.2d 1050, 1058-59 (8th
Cir. 1987) (reviewing for error the district
court’s determination on whether petition-
er’s particular conditions of confinement
rendered his decision to waive appeals
involuntary); . . . Grossclose ex rel. Harries
v. Dutton, 594 F. Supp. 949, 961 (M.D.
Tenn. 1984) (“In the judgment of this
Court, the conditions of confinement
inflicted on Mr. Harries are so adverse that
they have caused him to waive his post-
conviction remedies involuntarily”).

Comer, 215 F.3d at 917-18.

From the record, it is clear that Comer’s waiver
was a “product of a free and deliberate choice.” Doe,
155 F.3d at 1074. At the evidentiary hearing, Comer
clearly expressed his willingness to withdraw his
 COMER v. SCHRIRO 3139
appeal in spite of the fact that Habeas Counsel
informed him that his appeal had a strong prospect
of success (“Julie [Hall] came down and said I had
some real good merits in my case and that we were
in the Ninth Circuit.”). Special Counsel fully
informed Comer that he could possibly receive a
new sentence or a new trial, or even be found not
guilty, if his appeal were to be heard.7 Special Coun-
sel further informed Comer that it would be much
tougher for the State to retry him because of the
amount of delay in the proceedings.8 Moreover, Spe-
7
[Special Counsel]: You’ve heard and we’ve talked a lot about
what could happen if your habeas is considered by the appellate
courts. And I think you have said that you believe, from every-
thing you’ve been told and everything that you’ve read, that you
have a good — good prospects for a new sentencing. Right?
[Comer]: Yes, ma’am.
[Special Counsel]: So that would mean — if you got a new —
another sentencing, do you understand, then, that you may not get
the death penalty?
[Comer]: Yes, ma’am.
[Special Counsel]: And you may even get a new trial.
[Comer]: Yes.
[Special Counsel]: You could — you could have a not guilty ver-
dict in your favor and you’d be out on the street, right?
[Comer]: No.
[Special Counsel]: Why not?
[Comer]: I wouldn’t put all the people through another trial. I’d
just go up there, plead guilty. . . . There’s no sense to it. That’s
what I mean. I’ve already been lawfully convicted.
8
[Special Counsel]: You understand that if the government were
to try this case 13 years later or by the time this decision is made,
habeas decision is made, and if it was made in your favor, that
there would be enormous amount of delay in the proceedings
before they tried you?
[Comer]: It could be, yes, ma’am.
3140 COMER v. SCHRIRO
cial Counsel informed Comer that he would not be
able to change his mind once he waived his habeas
appeal (“[Special Counsel]: Do you understand that
if you are allowed to drop your appeal that you may
not be allowed to reinstate it afterwards if you
change your mind? [Comer]: Yes, sir”). Perhaps
most significantly, the District Court itself made
clear to Comer that his decision to waive his appeal
was his own and would necessarily result in his death.9

[Special Counsel]: And you understand that memories fade over
that long period of time and the government —
[Comer]: Yes, ma’am.
[Special Counsel]: — it’s often much harder for the government
to prove their case.
[Comer]: Yes, ma’am.
[Special Counsel]: — the second time? And that evidence could
be destroyed and witnesses could disappear or could die?
[Comer]: Yes.
[Special Counsel]: And those witnesses who were vital in your
trial — and you remember your trial.
[Comer]: Yes.
[Special Counsel]: — may not be around.
[Comer]: That’s quite possible.
9
[District Court]: And do you also understand that the decision
that you [Comer] have made and you have asked this Court to
carry out, at least at my level, is the one — one decision which
is most fundamental to all human beings, and that’s to end your
life.
[Comer]: Yes, ma’am.
[District Court]: You understand that?
[Comer]: Yes, ma’am, I do.
[District Court]: At least that’s considered to be the most funda-
mental decision that anyone can make in this country. You under-
stand that?
 COMER v. SCHRIRO 3141
Despite all this, Comer repeatedly stressed how he
understood the significance and consequences of
withdrawing his appeal, and nevertheless wanted to
do so. See, e.g., (“I, in my heart, have not appealed
[the denial of my habeas petition]. I never appealed
any of this.”).

From the record, it is also clear that Comer’s
waiver was not “improper[ly] induced” based on the
conditions of his confinement. Doe, 155 F.3d at
1074. First, Comer’s own violent actions in prison
have contributed to his continued confinement in
restrictive conditions. Both Dr. Johnson’s and Dr.
Krupers’s clinical evaluations make this apparent.
Dr. Johnson reports:

Review of Mr. Comer’s behavioral infrac-
tions (incident reports) over the last 13
years shows numerous major and minor
violations. He had approximately a dozen
violations for possession and manufacture
of a weapon. In almost all cases this
involved the making of shanks or knives.
On at least two occasions he set fires in his
cell . . . . He had several violations for
destruction of property or tampering with
equipment . . . . On one occasion he was
involved in an actual attempted assault on
another individual (another inmate).

[Comer]: Yes, ma’am.
[District Court]: And it’s embodied in the Constitution. You find
it throughout the Constitution. And we all have an obligation to
ensure that nobody does that unless they have fully understood
the consequences. You understand?
[Comer]: Yes, ma’am.
3142 COMER v. SCHRIRO
[Comer] has gradually, as the result of his
behavior, developed a reputation within the
Arizona DOC as being their highest secur-
ity risk and most dangerous inmate. His
intermittent manufacture of weapons and
periodic impulsive verbal responses that are
perceived as threatening, make it unlikely
that he would succeed in changing the per-
ception of the DOC about his degree of
dangerousness in the foreseeable future. He
personally verbalizes his own opinion that
the extra security precautions are warranted
in his case and takes some enjoyment in
persistently attempting to succeed in cir-
cumventing security interventions made by
the DOC.

Dr. Krupers reports:

Mr. Comer feels compelled, as a symptom
of his mental disorder, to continually manu-
facture [metal] shanks; his doing so gives
the DOC a rationale for requiring he live in
ever more restrictive conditions; and the
extremity of his conditions of confinement
in turn exacerbate the mental disorder that
is reflected (in part) in the compulsion to
manufacture shanks . . . . [Comer’s] psy-
chologically compelled behaviors, to wit
shank-manufacturing and threatening staff,
prevent him from gaining even modest
improvements in his actual conditions of
confinement.

Based on Comer’s own willful and violent actions,
it is difficult to see how the State acted improperly
in placing him in maximum confinement and, more
 COMER v. SCHRIRO 3143
importantly, how his conditions of confinement have
improperly coerced him into waiving his appeal.

Second, the conditions of Comer’s confinement in
the Arizona Department of Corrections (ADOC)
Special Management Unit (SMU) II, while certainly
harsh, are no more restrictive than the conditions of
his confinement in SMU I and California’s Folsom
Prison,10 nor are they unique to Comer. Comer him-
self estimates that his one-person prison cell in SMU
II is twice as large as his two-person cell in Folsom
(“[I]f you took my cell right now and cut it in half,
it would still be bigger than our cells at Folsom, and
at Folsom we had two people sitting in there”). He
further notes that SMU II is more clean, easier to see
in and out of, quieter, and less dangerous than Fol-
som or SMU I. SMU II is “heaven” compared to
“Folsom” with “much nicer . . . conditions of confine-
ment.”11 Comer references how other inmates were
confined in “supermax units” at SMU II and how
they posed equally as high a security risk as Comer.
He defines his conditions of confinement in the con-
text of what he and his fellow inmate, Robert Wayne
Vickers (“Bonzai”), had coming to them (“You had
me and Robert Wayne Vickers, Bonzai. We earned
everything we got there [at SMU II], man, that’s
how we got there”).
10
Comer was incarcerated in Folsom from 1979-1984 and in SMU I
from 1988-1996. He has remained in SMU II from 1996 until the present.
11
[Comer]: “Yeah. I mean, [SMU II] is still not paradise, but god, you
start comparing to Folsom — you compare it just to SMU I there’s a big
different [sic]. But SMU I was never anywhere close to being what Fol-
som was . . . . But we’re talking what, 23 years ago was Folsom. We’re
talking SMU I was 15 years ago. And then we’re talking SMU II, that’s
— I’ve been here at SMU II that’s what, six or seven years. And hell, I
could tell you differences just two years ago — how much conditions have
changed in our prison for all of us over there. It’s gotten better just from
two years ago. Not a big major change, like a big major change between
Folsom and today, but you can still see it.”
3144 COMER v. SCHRIRO
Thus, because Comer’s waiver was “the product
of a free and deliberate choice rather than coercion
or improper inducement,” Doe, 155 F.3d at 1074, the
District Court did not err in determining that Comer
voluntarily waived his habeas appeal right.

B. The Waiver’s Constitutionality

A capital defendant’s waiver of appeal requires
particularly careful scrutiny. Generally, “[w]e lack
jurisdiction to entertain appeals where there was a
valid and enforceable waiver of the right to appeal.”
United States v. Jeronimo, 398 F.3d 1149, 1152-53
(9th Cir. 2005). However, “because there is a quali-
tative difference between death and any other per-
missible form of punishment, ‘there is a
corresponding difference in the need for reliability in
the determination that death is the appropriate pun-
ishment in a specific case.’ ” Zant v. Stephens, 462
U.S. 862, 884-85 (1983) (quoting Woodson v. North
Carolina, 428 U.S. 280, 305 (1976)). “By protecting
even those convicted of heinous crimes, the Eighth
Amendment reaffirms the duty of the government to
respect the dignity of all persons.” Roper v. Sim-
mons, 543 U.S. 551, 560 (2005).

The Eighth Amendment provides: “Excessive bail
shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S.
Const. amend. VIII (emphasis added). Its protections
apply to the states through the Fourteenth Amend-
ment. Furman v. Georgia, 408 U.S. 238, 239-40
(1972). “[T]he death penalty has been treated differ-
ently from all other punishments” insofar as it cannot
be “imposed without the serious and calm reflection
that ought to proceed any decision of such gravity
and finality.” Thompson v. Oklahoma, 487 U.S. 815,
856 (1988) (O’Connor, J., concurring). For a death
 COMER v. SCHRIRO 3145
sentence to be constitutional, the Eighth Amendment
requires that the sentence be imposed in a non-
arbitrary fashion. See Gregg v. Georgia, 428 U.S.
153, 188, 189 (1976).

Permitting a state to execute a capital defendant
without a full adjudication of his previously filed
federal habeas appeal amounts to an Eighth Amend-
ment violation. The “[Supreme] Court has repeatedly
emphasized that meaningful appellate review of
death sentences promotes reliability and consisten-
cy.” Clemons v. Mississippi, 494 U.S. 738, 749
(1990). Meaningful appellate review clearly includes
review on direct appeal. See Barefoot v. Estelle, 463
U.S. 880, 887 (1983) (“[D]irect appeal is the primary
avenue for review of a conviction or sentence, and
death penalty cases are no exception.”). But “signifi-
cant evidence . . . demonstrates that the meaningful
appellate review necessary in a capital case extends
beyond the direct appellate process.” Murray v.
Giarratano, 492 U.S. 1, 24 (1989) (Stevens, J., dis-
senting).

Especially vital is meaningful appellate review of
a capital defendant’s habeas petition. “The writ of
habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary
and lawless state action.” Harris v. Nelson, 394 U.S.
286, 290-91 (1969). The writ demonstrates “Con-
gress’ expressed interest in providing a federal
forum for the vindication of the constitutional rights
of state prisoners.” Reed v. Ross, 468 U.S. 1, 10
(1984). Habeas corpus is “not a ‘static, narrow, for-
malistic remedy,’ but one which must retain the
‘ability to cut through barriers of form and proce-
dural mazes.’ ” Murray v. Carrier, 477 U.S. 478,
501 (1986) (Stevens, J., concurring) (citation omit-
ted). Its “central concern” is “fundamental fairness.”
3146 COMER v. SCHRIRO
Strickland v. Washington, 466 U.S. 668, 697 (1984).
Indeed, of the 599 federal habeas petitions submitted
from 1973 to 1995 challenging the constitutionality
of death sentences, 237 of them were granted, or
nearly 40%. James Liebman, A BROKEN SYSTEM:
ERROR RATES IN CAPITAL CASES, 1973-1995, E-5
(1995). Between 1976 and 1983, approximately 70%
of capital defendants who had been denied federal
habeas relief in district court prevailed in federal
courts of appeal. Whitmore, 495 U.S. at 170-71
(Marshall, J., dissenting). Habeas review, therefore,
significantly increases the reliability of a death sen-
tence.

In contrast, allowing a defendant to arbitrarily
waive such review, once it has been properly initi-
ated by the defendant and the reviewing court has
been presented with briefs that demonstrate the
defendant’s conviction or sentence may indeed be
unconstitutional, violates the Eighth Amendment.
The defendant is not taking his own life, he is coopt-
ing the power of the state’s capital punishment sys-
tem to kill — a power that must only be wielded in
accordance with the Constitution’s fundamental pro-
tections. The people’s interest in justice, which
forms the basis of the state’s power to execute,
should not be so easily commandeered. The right to
die is not synonymous with the right to kill.

Comer once felt strongly about his federal habeas
claims. His own attorneys — then habeas counsel —
filed briefs that alerted this panel to potentially seri-
ous constitutional violations that occurred during
Comer’s trial and sentencing proceedings. To pre-
tend these claims have gone away is to permit the
state to execute a man who has been sentenced wrong-
fully.12 The state should not be able to execute an
12
See Section II.C., infra, “Comer’s Habeas Claims.”
 COMER v. SCHRIRO 3147
illegally convicted or sentenced person. As the Penn-
sylvania Supreme Court so eloquently counseled:

[W]hile a defendant may normally make an
informed and voluntary waiver of rights
personal to himself, his freedom to do so
must give way where a substantial public
policy is involved; in such a case an appeals
court may feel fully warranted in seeking to
reach an issue. . . . Because imposition of
the death penalty is irrevocable in its final-
ity, it is imperative that the standards by
which that sentence is fixed be constitution-
ally beyond reproach. . . . [T]he waiver con-
cept was never intended as a means of
allowing a criminal defendant to choose his
own sentence.

Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa.
1978) (internal citations omitted).13

To allow a defendant to choose his own sentence
introduces unconscionable arbitrariness into the cap-
ital punishment system. See Massie v. Sumner, 624
F.2d 72, 74 (9th Cir. 1980). Permitting such waiver
allows the defendant, not the justice system with its
attendant procedural safeguards, to determine whom
the state will execute. Comer seeks death, yet the
13
Because of similar concerns, the state of New Jersey has made manda-
tory not only direct appellate review, but also at least one round of post-
conviction review. State v. Martini, 677 A.2d 1106 (N.J. 1996). The New
Jersey Supreme Court explained its decision thus: “For those who wish to
understand, we explain that under our form of government it is not the
inmate on death row or the accused who determines when and whether the
State shall execute a prisoner; rather, the law itself makes that determina-
tion. The public has an interest in the reliability and integrity of a death
sentencing decision that transcends the preferences of individual defen-
dants.” Id. at 1107.
3148 COMER v. SCHRIRO
errors in his sentencing hearing prevent us from
knowing if he is a member of that narrow class of
individuals that the state is permitted to execute. See
Gregg, 428 U.S. at 189. Indeed, “the waiver rule
cannot be exalted to a position so lofty as to require
this Court to blind itself to the real issue—the propri-
ety of allowing the state to conduct an illegal execu-
tion of a citizen.” McKenna, 383 A.2d at 181. We
cannot abdicate our judicial and societal duty to pre-
serve the sanctity of the Eighth Amendment from
such violation. Federal appellate review of a capital
defendant’s federal habeas petition is a vital protec-
tion against such arbitrary and inconsistent infliction
of the death penalty.

We note that limiting a defendant’s ability to uni-
laterally waive constitutional safeguards is not with-
out precedent. For example, the Supreme Court
upheld a rule that does not allow a defendant to
waive his right to a jury trial without the consent of
the court and of the prosecution. See Singer v.
United States, 380 U.S. 24, 34-35 (1965) (“The abil-
ity to waive a constitutional right does not ordinarily
carry with it the right to insist upon the opposite of
that right.”). Nor may an accused assert a right to
plead guilty to any criminal charge, and thereby
waive his right to a jury trial, absent a determination
of a factual basis for the plea. See FED. R. CRIM. P.
11(b)(3); McCarthy v. United States, 394 U.S. 459,
466-67 (1969). The McCarthy Court recognized that
a defendant should not be allowed to determine
whether he is convicted of a crime, by pleading
guilty, if “his conduct does not actually fall within
the charge.” Id. at 467. Similarly, Comer should not
be allowed to sentence himself to death if the state
has not properly fulfilled its obligation to determine
who falls within the narrow class of individuals who
deserve capital punishment.
 COMER v. SCHRIRO 3149
This Circuit has already implicitly recognized the
correctness of our position. In Landrigan v. Schriro,
we ignored the defendant’s attempt to waive his
pending habeas appeal. 441 F.3d 638, 653 n.2 (9th
Cir. 2006) (en banc) (Bea, J., dissenting). Instead, in
an en banc proceeding, we held that Landrigan may
have received ineffective assistance of counsel dur-
ing his sentencing hearing and remanded for an evi-
dentiary hearing to develop the facts of the claim. Id.
at 650.

Thus, in spite of Comer’s valid waiver, we must
review the merits of his habeas claims on appeal. To
do otherwise, and allow Comer to be executed
despite the infirmities in his sentence, would be to
deny him the dignity of being treated fairly and
justly by a state that claims the power of life and
death over his person.

The dissent contends that review of the Eighth
Amendment claim before us is foreclosed by Gil-
more v. Utah, 429 U.S. 1012 (1976). However, the
Gilmore Court never addressed the constitutional
claim presented by the petitioner, namely whether a
state must provide mandatory appellate review of a
capital defendant’s conviction and sentence despite
the defendant’s desire to waive such review. See Gil-
more, 429 U.S. at 1017 (“The question . . . [of
whether] Gilmore is ‘unable’ as a matter of law to
waive the right to [meaningful] state appellate
review . . . simply is not before us.”).

In Gilmore, the Court’s holding turned on the peti-
tioner’s lack of standing. Id. at 1014, 1016-17. In
that case, convicted defendant Gary Mark Gilmore
directed his attorneys not to appeal his conviction or
sentence and to withdraw an appeal that had previ-
ously been filed without his consent, by appointed
3150 COMER v. SCHRIRO
trial counsel. Id. at 1015, n.4. However, four days
before Gilmore’s scheduled execution, his mother,
Bessie Gilmore, filed an application for a stay of
execution, claiming to be acting as her’s son’s “next
friend.” Id. at 1013. Mr. Gilmore, by and through his
attorneys, then filed a response, challenging his
mother’s standing.

A next friend is one who appears on behalf of a
party “unable, usually because of mental incompe-
tence or inaccessibility, to seek relief [himself.]”
Whitmore, 495 U.S. at 162 (citations omitted). A
“necessary condition for ‘next friend’ standing in
federal court is a showing by the proposed ‘next
friend’ that the real party in interest is unable to liti-
gate his own cause due to mental incapacity, lack of
access to court, or other similar disability.” Id. at
165. The majority in Gilmore held that Mr. Gilmore
had “made a knowing and intelligent waiver of any
and all federal rights he might have asserted,” and
therefore did not consider the substance of the claims
his mother had raised as his next friend. Id., at 1013.

Whitmore, 495 U.S. 149, is another case, similar
to Gilmore, that may at first appear relevant but is
actually inapposite. In Whitmore, Jonas Whitmore
sought to challenge the validity of the sentence
imposed on fellow death row inmate Ronald Sim-
mons, who had knowingly, intelligently, and volun-
tarily chosen to appeal neither his conviction nor his
sentence. Id. at 151. The Supreme Court ruled that
Whitmore lacked standing, and dismissed the peti-
tion for lack of jurisdiction. Id. at 165-66.

Notably, neither Gilmore nor Whitmore was
decided without significant dissenting opinions:

When a capital defendant seeks to circum-
vent procedures necessary to ensure the
 COMER v. SCHRIRO 3151
propriety of his conviction and sentence, he
does not ask the State to permit him to take
his own life. Rather, he invites the State to
violate two of the most basic norms of a
civilized society—that the State’s penal
authority be invoked only where necessary
to serve the ends of justice, not the ends of
a particular individual, and that punishment
be imposed only where the State has ade-
quate assurance that the punishment is justi-
fied. The Constitution forbids the State to
accept that invitation.

Whittmore 495 U.S. at 173 (Marshall, J., dissenting,
joined by Brennan, J.); See Gilmore, 429 U.S. at
1018 (White, J., dissenting, joined by Marshall and
Brennan, J.) (“[T]he consent of a convicted defen-
dant . . . does not privilege a State to impose a pun-
ishment otherwise forbidden by the Eighth
Amendment.”).

But the remaining Justices in both cases expressly
stated that they were not reaching the issues
addressed in the dissents. In Gilmore, 429 U.S. at
1017 (J. Stevens, concurring, joined by J. Rehn-
quist), Justice Stevens’s concurrence described Bes-
sie Gilmore’s petition as one of a “third party [who]
has no standing to litigate an Eighth Amendment
claim or indeed any other claim on [the defendant’s]
behalf.” Justice Berger stated that the question raised
in Justice White’s dissent was not before the Court.
Id. at 1017 (J. Burger, concurring, joined by J. Pow-
ell).
COMER v. SCHRIRO 3153
Volume 2 of 2
3154 COMER v. SCHRIRO

Similarly, in Whitmore, 495 U.S. at 151, 155
(internal quotations and punctuation omitted), Justice
Rehnquist explained:

This case presents the question whether a
third party has standing to challenge the
validity of a death sentence imposed on a
capital defendant who has elected to forgo
his right of appeal to the State Supreme
Court. . . . Our threshold inquiry into stand-
ing “in no way depends on the merits of the
petitioner’s contention that particular con-
duct is illegal,” . . . and we thus put aside
for now Whitmore’s Eighth Amendment
challenge[.]

Comer’s case is different. Comer himself initiated
his current appeal and properly stands before this
court in his own right. Comer began the present fed-
eral habeas proceedings by filing with the District
Court a preliminary petition for writ of habeas cor-
pus, an application for appointment of counsel, and
a request for a stay of execution. As a majority of
this panel previously pointed out in its published
opinion:

[Comer] 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 constitu-
tional rights.” [He] specifically requested
that the district court appoint Peter J. Ecker-
 COMER v. SCHRIRO 3155
stom, his current counsel, and John R. Han-
nah, Jr., of the Law Offices of the Federal
Public Defender in Arizona, to represent
him. He also asked the court to both pro-
vide 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. Eck-
erstrom is authorized to represent me in this
matter. The pleadings he has already filed
are authorized by me.”

Comer, 215 F.3d at 912.

Comer himself filed opening and reply briefs in
this Court “rais[ing] serious questions about the con-
stitutionality of his conviction and sentence.” Comer,
215 F.3d at 912. In contrast, Gilmore never chose to
appeal. Gilmore, 429 U.S. at 1015, n.4. We exer-
cised 28 U.S.C. § 2253 jurisdiction over Comer’s
habeas petition in 2000, and oral argument pertain-
ing to the merits of his claims had been scheduled
prior to the filing of any motion to dismiss the
appeal. The State’s and Habeas Counsel’s briefs con-
cerning the merits of Comer’s habeas petition are
today pending before this Court.

We now decide a question left unanswered by the
Supreme Court: whether the Constitution permits a
3156 COMER v. SCHRIRO
state to execute a capital defendant who wants to die
but whose properly filed federal habeas appeal has
not yet been substantively reviewed. We answer this
question in the negative.

C. Comer’s Habeas Claims

1. Standard of Review

Because Comer filed his federal habeas petition in
1994, the Anti-Terrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”) does not apply to his
petition. See Lindh v. Murphy, 521 U.S. 320, 327
(1997). We therefore apply pre-AEDPA standards of
review. Woodford v. Garceau, 538 U.S. 202, 205
(2003). Under these standards “state court judgments
of conviction and sentence carry a presumption of
finality and legality and may be set aside only when
a state prisoner carries his burden of proving that
[his] detention violates the fundamental liberties of
the person, safeguarded against state action by the
Federal Constitution.” Hayes v. Brown, 399 F.3d
972, 978 (9th Cir. 2005) (en banc).

We review de novo the District Court’s denial of
habeas relief. See Alcala v. Woodford, 334 F.3d 862,
868 (9th Cir. 2003).

2. Exhaustion

a. Federal Standard

Consistent with our pre-AEDPA standard, habeas
relief shall not be granted unless it appears that a
petitioner has exhausted state remedies “or that there
is either an absence of available State corrective pro-
cess or the existence of circumstances rendering
such process ineffective to protect the rights of the
 COMER v. SCHRIRO 3157
prisoner.” 28 U.S.C. § 2254(b) (1994). For us to pass
on the merits of a constitutional claim, that claim
must first have been “fairly presented to the state
courts.” Picard v. Connor, 404 U.S. 270, 275 (1971)
(internal quotation marks and citation omitted);
Casey v. Moore, 386 F.3d 896, 911 (9th Cir. 2004).

Even if a petitioner fails to raise a constitutional
claim in state court, the exhaustion requirement may
be satisfied, allowing us to address the claim on its
merits, where the state court itself exhausts the
claim. In particular, where a state court is required to
review the record for federal constitutional error, the
state court’s determination that there was no error
constitutes sufficient state consideration of a consti-
tutional claim, which impliedly exhausts that claim
in a way that is not independent of federal law. See
Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985); Beam
v. Paskett, 3 F.3d 1301, 1306-07 (9th Cir. 1993),
overruled on other grounds by Lambright v. Stewart,
191 F.3d 1181, 1185 (9th Cir. 1999). A state court’s
automatic review process does not necessarily
exhaust all federal constitutional claims. See Poland
v. Stewart, 117 F.3d 1094, 1105-06 (9th Cir. 1997)
(distinguishing Arizona’s fundamental error review
provision as not providing implied exhaustion of
otherwise precluded constitutional claims). Rather,
only those claims that the state court is specifically
required to review are exhausted on the merits by
that review. Id. at 1106.

In Beam, we construed the Idaho Supreme Court’s
automatic review of death sentences as impliedly
exhausting constitutional claims not raised by the
capital defendant on direct appeal in state court. 3
F.3d at 1306-07.14 Because the Idaho Supreme Court
14
The State contends that the Court’s decision in Teague v. Lane, 489
U.S. 288 (1989), bars retroactive application of Beam to Comer’s case.
3158 COMER v. SCHRIRO
“ha[d] an affirmative duty to review the entire record
in a capital case to determine . . . whether ‘the sen-
tence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor[,]’
[t]he state court must [have] consider[ed] possible
errors in sentencing that [were] not raised by the
defendant.” Id. (internal citation omitted). The Idaho
Supreme Court’s decision to affirm Beam’s death
sentence necessarily included an “antecedent deter-
mination of federal law.” Id. at 1307. Thus, Beam’s
challenge to the constitutionality of the use of an
aggravating factor during sentencing was not proce-
durally defaulted. Id.

b. Arizona Supreme Court’s Independent
Review of Capital Cases

As in Beam, we look both to Arizona’s statutes
and its case law to determine the parameters of Ari-
zona’s independent review of capital cases. “In capi-
tal cases, [the Arizona Supreme Court]
independently examine[s] the record to determine
the existence of aggravating and mitigating circum-
stances and the propriety of imposing the death pen-
alty.” Comer, 799 P.2d at 348 (Ariz. 1990)
(emphasis added). This independent review specifi-
cally encompasses review of the sentencing hearing
and record as well as aggravating and mitigating cir-
cumstances to ensure, among other things, that
“proper procedures were followed.” State v. Hill,
848 P.2d 1375, 1388 (Ariz. 1993) (citation omitted)
(reviewing whether the sentencing judge had an
impermissible conflict that required his recusal, as

We have held, however, that Teague does not apply to matters of federal
habeas jurisdiction, including our exhaustion analysis. Coe v. Thurman,
922 F.2d 528, 533-34 (9th Cir. 1991).
 COMER v. SCHRIRO 3159
well as aggravating and mitigating circumstances);
accord State v. Stuard, 863 P.2d 881, 896-97 (Ariz.
1993) (undertaking a “painstaking” examination of
the record to determine if the death penalty was erro-
neously imposed); State v. Bible, 858 P.2d 1152,
1206 (Ariz. 1993); see also State v. Watson, 628
P.2d 943, 946 (Ariz. 1981) (noting that the Arizona
Supreme Court painstakingly reviews death sen-
tences to ensure the punishment is not inflicted in an
arbitrary and capricious manner). The Arizona
Supreme Court also ensures that the death penalty
was not “imposed under the influence of passion,
prejudice, or any other arbitrary factors.” State v.
Richmond, 560 P.2d 41, 51 (Ariz. 1977), overruled
on other grounds by State v. Salazar, 844 P.2d 566
(Ariz. 1992); accord State v. Woratzeck, 657 P.2d
865, 871 (Ariz. 1982). This independent review pro-
cess includes scrutiny of federal constitutional
claims. State v. Brewer, 826 P.2d 783, 790-91 (1992)
(undertaking independent review because, among
other matters, the Arizona Supreme Court must
determine that under the Eighth and Fourteenth
Amendments the death penalty is not being inflicted
in an arbitrary and capricious fashion). As the Ari-
zona Supreme Court noted in explaining its review,
“[i]f the record reveals that the trial court, for what-
ever reason, improperly sentenced a defendant to
death, we must overturn that sentence.” Id. at 791
(emphasis added).15

c. Comer’s Impliedly Exhausted Habeas
Claims
15
We have recognized the thoroughness of the Arizona Supreme Court’s
independent review process in another context. See Gerlaugh v. Stewart,
129 F.3d 1027, 1045 (9th Cir. 1997) (finding that Arizona’s independent
review as to the “propriety and legality of the death penalty” justifies
counsel’s tactical decision to rely on that review instead of independently
raising claims related to defendant’s sentencing).
3160 COMER v. SCHRIRO
The District Court found seven of Comer’s pres-
ent habeas claims to be procedurally defaulted
because Comer failed to raise them in state court.16
As explained below, however, under the Arizona
Supreme Court’s independent review process, four
of these seven claims were impliedly exhausted;
therefore, we may address the merits of those claims.

The preceding discussion makes clear that during
its independent review, the Arizona Supreme Court
examines the entire record, particularly the sentenc-
ing hearing, to determine if any procedural errors
occurred or other arbitrary factors influenced the
sentencing court’s decision to impose the death sen-
tence. The Arizona Supreme Court is clearly con-
scious of its duty to respect the dictates of the Eighth
and Fourteenth Amendments and to ensure that the
death penalty is not imposed in an arbitrary and
capricious fashion.

Four of the claims Comer initially presented to the
District Court (Claims VIII, IX, X, and XI) relate to
the procedural conduct of his sentencing hearing,
and directly implicate Eighth and Fourteenth
Amendment protections against the arbitrary imposi-
tion of the death penalty. These claims were also
readily apparent from the record that the Arizona
16
Specifically, those claims include: (1) the unconstitutionality of the
trial court’s failure to follow a statutorily required procedure at a post-
competency hearing (Claim VIII), (2) the unconstitutionality of the trial
court’s conducting a post-competency hearing in Comer’s absence (Claim
IX), (3) the unconstitutionality of the trial court’s sentencing Comer while
unclothed and semi-conscious (Claims X and XI), (4) the insufficiency of
evidence to support the court’s finding that Comer committed the homi-
cide for pecuniary gain (Claim XII), (5) the Arizona Supreme Court’s fail-
ure to consider the cumulative weight of Comer’s mitigation evidence
(Claim XIV), and (6) the Arizona death penalty statute’s failure to narrow
the class of defendants subject to the death penalty (Claim XVI).
 COMER v. SCHRIRO 3161
Supreme Court painstakingly reviewed. Cf. Falcone
v. Stewart, 120 F.3d 1082, 1084 n.2 (9th Cir. 1997)
(constitutional claims that are “readily apparent from
the record” fall under the penumbra of the automatic
review process), vacated on other grounds, 524 U.S.
947 (1998). Therefore, we hold that they were
impliedly exhausted, on their merits, by Arizona’s
independent review of Comer’s capital case. We
examine the implied exhaustion of each of these
penalty-phase claims in turn.

First, Comer claims that the trial court violated his
Fifth, Sixth, and Fourteenth Amendment rights by
not determining his competency during the sentenc-
ing hearing, and not following a statutorily required
procedure at a post-sentence competency hearing
(Claim VIII). Comer’s compromised physical and
mental condition during sentencing is readily appar-
ent from the record that was presented to the Arizona
Supreme Court. That record included a transcript of
the sentencing hearing, which begins with the very
question of whether Comer is even conscious. This
question arose because Comer was presented to the
court nearly naked, shackled to a wheelchair, with
his head slumped to the side, and bleeding from a
head wound. A videotape of the sentencing, demon-
strating Comer’s condition, was also before the Ari-
zona Supreme Court. Furthermore, the record
included a transcript of the post-sentencing compe-
tency hearing, held the next day, in which Comer’s
competency during sentencing was explicitly dis-
cussed. These transcripts and videotape gave ample
notice to the Arizona Supreme Court that Comer’s
competency was of concern during the sentencing
hearing. Additionally, to sentence a defendant while
he is incompetent is a federal due process violation.
See Sailer v. Gunn, 548 F.2d 271, 273-74 (9th Cir.
1977); see also Pate v. Robinson, 383 U.S. 375, 378
3162 COMER v. SCHRIRO
(1966); Drope v. Missouri, 420 U.S. 162, 172
(1975). The Arizona Supreme Court’s decision not
to address this constitutional issue during its inde-
pendent review was an implicit rejection of any
error.

Second, Comer claims that the conduct of the
post-sentence competency hearing in his absence
violated his Sixth, Eighth, and Fourteenth Amend-
ment rights (Claim IX). Again, Comer’s absence
from the post-sentence hearing is readily apparent
from the transcripts. A defendant has a constitutional
right to be present at any critical stage of his prose-
cution, including at capital sentencing hearings, see
Gardner v. Florida, 430 U.S. 349 (1977), and hear-
ings to determine the defendant’s competency, see
Sturgis v. Goldsmith, 796 F.2d 1103, 1108 (9th Cir.
1986). Thus, by failing to address this issue, the Ari-
zona Court again impliedly rejected any error.

Third, Comer claims his sentencing while
unclothed and semi-conscious violated the due pro-
cess clause of the Fourteenth Amendment (Claims X
and XI). The egregious circumstances of Comer’s
condition during sentencing are readily apparent
from both the trial transcript and the videotape pre-
sented to the Arizona Supreme Court. By not com-
menting on this issue, the Arizona Court implicitly
signaled its rejection of any error.

We hold, therefore, that these four claims were
exhausted on their merits by the Arizona Supreme
Court’s independent review of Comer’s capital case.
Comer’s three other claims (Claims XII, XIV, and
XVI) are neither as readily apparent from the record
nor as clearly encompassed within Arizona’s inde-
pendent review. Thus, we do not find them to be
impliedly exhausted. We may proceed to decide the
 COMER v. SCHRIRO 3163
merits of Comer’s impliedly exhausted claims with-
out remand to the District Court. See Beam, 966 F.2d
at 1570-75; Granberry v. Greer, 481 U.S. 129, 131
(1987) (noting that a federal appellate court may
appropriately decide the merits of a habeas petition).

Additionally, Comer argues that Arizona’s funda-
mental error review exhausted most of the other
claims he presented to the District Court. We have
held, however, that we will only consider a claim to
be exhausted by Arizona’s fundamental error review
if it was explicitly noted in the briefs presented to the
state appellate court, or the state court mentions it is
considering the claim sua sponte. See Moormann v.
Schriro, 426 F.3d 1044, 1057 (9th Cir. 2005).
Because neither occurred in this case, we affirm the
District Court’s finding that most of Comer’s other
habeas claims were procedurally defaulted.

We now proceed to address on the merits Comer’s
impliedly exhausted and actually exhausted claims.
First, we will consider the four guilt-phase claims
that Comer raises in his appeal brief and that the Dis-
trict Court found were actually exhausted and thus
not procedurally defaulted. Second, we will address
Comer’s penalty phase claims, which include an
actually exhausted claim of ineffective assistance of
counsel and the four impliedly exhausted claims we
have discussed in this section.

3. Guilt-Phase Claims

Comer contends that his conviction should be set
aside because of several constitutional errors that
occurred during the guilt phase of his trial. Specifi-
cally, Comer claims that: (1) the trial court’s failure
to sever the Pritchard homicide count from the
Andrews and Brough kidnapping/robbery/sexual
3164 COMER v. SCHRIRO
assault counts violated his due process right to a fair
trial; (2) the trial court’s failure to sever the counts
also violated his constitutional right to testify; (3) the
prosecutor’s misconduct during closing argument
deprived Comer of a fundamentally fair trial; and (4)
the trial court’s failure to strike two venirepersons
for cause denied Comer his Sixth Amendment right
to a fair and impartial jury.

The District Court considered the merits of all
four of these claims and denied Comer’s habeas peti-
tion. We agree with the District Court that Comer is
not entitled to relief based upon any of these claims;
therefore, his conviction should stand and we deny
his habeas petition as to these guilt-phase claims.

a. Severance

i. Due Process

Comer’s first claim is that the trial court improp-
erly joined the Pritchard homicide count to the
Andrews and Brough kidnapping/robbery/sexual
assault counts. Comer contends that, because the evi-
dence with regard to the Andrews and Brough counts
was stronger and more inflammatory than the evi-
dence relating to the first-degree murder count, he
was prejudiced by the joinder of the offenses since
the inflammatory evidence had a substantial and
injurious impact on the jury’s determination regard-
ing the first-degree murder count.

“[T]he propriety of consolidation rests within the
sound discretion of the state trial judge.” Fields v.
Woodford, 309 F.3d 1095, 1110 (9th Cir. 2002).
Thus, we will not grant habeas relief unless the join-
der “actually render[ed] petitioner’s state trial funda-
mentally unfair and hence, violative of due process.”
 COMER v. SCHRIRO 3165
Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.
2004) (citation omitted); Bean v. Calderon, 163 F.3d
1073, 1084 (9th Cir. 1998). “The requisite level of
prejudice is reached only if the impermissible join-
der had a substantial and injurious effect or influence
in determining the jury’s verdict.” Davis, 384 F.3d at
638 (internal quotation marks and citation omitted).
We conclude that the joinder of the homicide and
kidnapping/robbery/sexual assault counts did not
render Comer’s trial fundamentally unfair.

Comer contends that the circumstances of his trial
are analogous to those found in Bean v. Calderon, a
case in which we held that the joinder of two murder
counts prejudiced the defendant as to one of the
counts. 163 F.3d at 1083-86. The likelihood of preju-
dice in Bean, however, was much greater than the
likelihood that Comer was prejudiced by the joinder
of the homicide and kidnapping/robbery/sexual
assault counts.

First, in Bean, we found that the evidence regard-
ing the separate murder counts at issue would not
have been cross-admissible had the counts been tried
separately. 163 F.3d at 1084. In contrast, the Arizona
Supreme Court held that the homicide and
kidnapping/robbery/sexual assault counts were prop-
erly joined because evidence pertaining to both sets
of offenses demonstrated that Comer was engaged in
a common scheme or plan to obtain money and sup-
plies. Comer, 799 P.2d at 338-39 (Ariz. 1990). Thus,
as Comer acknowledges, at least some of the evi-
dence presented at his trial was admissible as to all
of the counts. This cross-admissibility of evidence
significantly reduces the potential prejudice to
Comer. See, e.g., Davis, 384 F.3d at 638-39 (finding
no prejudice to the defendant when evidence was
cross-admissible, the weight of evidence for each
3166 COMER v. SCHRIRO
count was roughly equivalent, and the court gave a
limiting instruction); cf. Leach v. Kolb, 911 F.2d
1249, 1258-60 (7th Cir. 1990) (holding that, even
when counts were not properly joined under state
law, the misjoinder was not prejudicial due to a lim-
iting instruction and strong evidence of guilt as to
each charge).

Second, the improperly joined counts in Bean con-
sisted of two murders. 163 F.3d at 1083. However,
when the joined offenses are different in nature, such
as murder and kidnapping/sexual assault, and spe-
cific evidence is presented as to each crime, the risk
of confusing or misleading the jury is reduced. See
United States v. Irvine, 756 F.2d 708, 712-13 (9th
Cir. 1985).

Third, the jury in Bean received only a very gen-
eral instruction that each count must be decided sep-
arately. 163 F.3d at 1083. In contrast, Comer’s jury
was explicitly instructed “to give separate consider-
ation to each individual count” and to “analyze what
the evidence in each count shows with respect to that
individual count.” While this instruction may not
have been ideal, since the court subsequently
instructed that jury that some evidence might overlap
between the counts, it still acted to limit any preju-
dice. See Davis, 384 F.3d at 639 (“[A]ny prejudice
was further limited through an instruction directing
the jury to consider each count separately.”).

Finally, the evidence relating to Comer’s guilt of
the Pritchard homicide count was strong, as was the
evidence of the kidnapping/robbery/sexual assault
counts. In Bean, the prosecution was able to muster
only scant evidence to convict Bean of the second
murder count, including a disputed fingerprint, a
matching hair, and testimony of a neighbor who saw
 COMER v. SCHRIRO 3167
Bean hiding in some bushes across from the victim’s
house several weeks before the crime took place.
163 F.3d at 1085. Here, in contrast, during closing
argument Comer’s counsel admitted that Comer shot
Pritchard. Comer’s defense was that the shooting
was an accident precipitated by Comer’s intoxication
at the time, and thus did not involve the premedita-
tion necessary for a finding of first degree murder.
The prosecution presented substantial evidence to
rebut this theory, including: (1) the location of the
wound, behind the ear, which suggested a deliberate
shooting; (2) testimony of Willis that, moments
before the shooting, Comer told her, “I’m going to
blow him away,” and that after the shooting Comer
said “[s]ee what I’ve done, I’m a cold and callous
killer”; and (3) evidence that Comer stabbed Prit-
chard in the throat after the shooting. Comer count-
ers that Willis’s testimony cannot be believed. When
faced with this argument in Sandoval v. Calderon,
however, we held that the issue of a witness’s credi-
bility is for the jury to decide. 241 F.3d 765, 772-73
(9th Cir. 2000). The jury’s conviction of Comer on
the first degree murder count suggests it credited
Willis’s testimony. Additionally, all parties agree
that the evidence as to Comer’s guilt with regard to
the kidnapping/robbery/sexual assault counts was
overwhelming.

Given the strength of the evidence against Comer
on all counts, the cross-admissibility of that evi-
dence, and the trial court’s limiting instruction, we
hold that Comer’s trial was not rendered fundamen-
tally unfair by joinder of the counts. See, e.g., Davis,
384 F.3d at 638-39 (holding no prejudice to defen-
dant when evidence was cross-admissible, weight of
evidence for each count was roughly equivalent, and
court gave a limiting instruction); Fields, 309 F.3d at
1109-1110 (holding no prejudice to defendant when
3168 COMER v. SCHRIRO
evidence was cross-admissible and evidence of guilt
as to all counts was strong); Sandoval, 241 F.3d at
771-73 (same).

ii. Right to Testify

In a related claim, Comer contends that his right
to testify under the Fifth, Sixth, and Fourteenth
Amendments was violated when the trial court
refused to sever the Pritchard homicide count from
the Andrews and Brough counts.

Comer is correct in asserting that he has a due pro-
cess right to testify in his own defense. See Rock v.
Arkansas, 483 U.S. 44 (1987). The right to testify,
however, does not guarantee a defendant’s ability to
testify only to information favorable to his defense.
Rock, 483 U.S. at 52 (a defendant who chooses to
testify is subject to cross-examination); United States
v. Alosa, 14 F.3d 693, 696 (1st Cir. 1994) (noting
that the Fifth Amendment protects a defendant’s
right to choose whether to testify, but “does not
assure that the testimony will only benefit the defen-
dant”). A defendant, therefore, retains the ability to
decide strategically whether to testify and thus
revealing damaging information. See Rock, 483 U.S.
at 53.

However, joinder of counts may unduly affect a
defendant’s choice whether to testify. See, e.g.,
United States v. Balzano, 916 F.2d 1273, 1283 (7th
Cir. 1990). To obtain severance because of this prej-
udicial effect, a defendant “must show that he has
important testimony to give on some counts and a
strong need to refrain from testifying on those he
wants severed.” See United States v. Nolan, 700 F.2d
479, 483 (9th Cir. 1983). Applying Nolan to this
case, we hold that Comer was not entitled to sever-
 COMER v. SCHRIRO 3169
ance based on his Fifth, Sixth, and Fourteenth
Amendment right to testify.

Comer claims that, had the counts not been joined,
he would have testified to the circumstances sur-
rounding his shooting of Pritchard. Because he did
not wish to testify regarding the Andrews and
Brough counts, however, he refrained from taking
the stand, or even attending the trial, because his
motion for severance was not granted. In support of
his motion for severance, a defendant must specifi-
cally identify the testimony he would offer in his
defense so that the trial court can determine if that
testimony is important enough to justify severance.
See United States v. Fenton, 367 F.3d 14, 22 (1st
Cir. 2004) (holding that a bald assertion of inno-
cence and unparticularized claim as to witness credi-
bility was not specific enough to mandate
severance); United States v. Alexander, 135 F.3d
470, 477 (7th Cir. 1998) (requiring specific exam-
ples of the exculpatory testimony the defendant
would give). Before the trial court, Comer’s counsel
asserted that Comer would testify that the shooting
was unintentional and give details of the surrounding
circumstances. Comer would also have refuted Wil-
lis’s testimony by denying that he ever made the
statements “I’m going to blow him away” and “I’m
a cold, callous killer.” Without additional details
regarding the circumstances Comer would have testi-
fied to, we find this proffered testimony is not spe-
cific enough to mandate severance.

Additionally, Comer did not have a strong need to
refrain from testifying as to the Jones and Smith
counts. “[A] defendant fails to make a convincing
demonstration of a strong need to refrain from testi-
fying on particular counts when[,] [w]ithout [the
defendant’s] testimony, the government offered suf-
3170 COMER v. SCHRIRO
ficient evidence to support the jury’s verdict on these
counts.” Balzano, 916 F.2d at 1283 (internal quota-
tion marks omitted); accord United States v. Free-
land, 141 F.3d 1223, 1227 (7th Cir. 1998). As
discussed in the previous section, all parties agree
that the evidence with regard to the Jones and Smith
counts, which included the eyewitness testimony of
Jones, Smith, Willis, and Willis’s daughter, was
overwhelming. Thus, Comer lacked a strong need to
refrain from testifying to these counts.

For these reasons, the trial court did not violate
Comer’s Fifth, Sixth, and Fourteenth Amendment
rights by refusing to sever the Pritchard count from
the Jones and Smith counts.

b. Prosecutorial Misconduct

Comer’s next claim is that the prosecutor engaged
in misconduct that violated Comer’s Fourteenth
Amendment due process rights by rendering his trial
fundamentally unfair. In particular, Comer takes
issue with the prosecutor’s use of dehumanizing epi-
thets during closing argument. Comer claims the
remarks were both improper and impermissibly
appealed to the passion and prejudice of the jury.

As all of the other courts before us have done, we
condemn the prosecutor’s remarks. At various times
throughout closing argument, the prosecutor repeat-
edly referred to Comer as a “monster” and “filth,”
analogized his crimes to a horror movie, and once
called Comer a “reincarnation of the devil.” We also
agree with the other courts, however, that the prose-
cutor’s remarks did not render Comer’s trial funda-
mentally unfair. “[I]t is not enough that the
prosecutors’ remarks were undesirable or even uni-
versally condemned.” Darden v. Wainwright, 477
 COMER v. SCHRIRO 3171
U.S. 168, 181 (1986) (internal quotation marks omit-
ted). Rather, we must decide “whether the prosecu-
tors’ comments so infected the trial with unfairness
as to make the resulting conviction a denial of due
process.” Id. (internal quotation marks omitted).
“[T]he appropriate standard of review for such a
claim on writ of habeas corpus is the narrow one of
due process, and not the broad exercise of supervi-
sory power.” Id. (internal quotation marks omitted);
accord Duckett v. Godinez, 67 F.3d 734, 743 (9th
Cir. 1995).

First, we address Comer’s claim that the prosecu-
tor’s dehumanizing epithets rendered his trial funda-
mentally unfair. The prosecutor’s remarks regarding
Comer are similar to those uttered by the prosecutors
in Darden. There, the prosecutors called the defen-
dant an “animal” and asserted that he should be kept
on a leash. 477 U.S. at 180 n.11 & n.12. The prose-
cutors also expressed their wish that Darden’s face
had been blown off during his crimes, and argued
that Darden deserved the death penalty to prevent
him from ever terrorizing the public again. Id. at 180
n.10 & n.12. Both Darden’s prosecutors and
Comer’s prosecutor dehumanized their respective
defendants with these remarks.

Nonetheless, in Darden, the Supreme Court held
that the prosecutors’ remarks did not deny the defen-
dant a fundamentally fair trial for several reasons,
including: the prosecutor did not manipulate or mis-
state any evidence; many of the remarks were
responsive to comments made by the defense; the
trial court instructed the jurors that their decision
“was to be made on the basis of the evidence alone”
and “the arguments of counsel were not evidence”;
strong evidence of the defendant’s guilt had been
presented during the trial; and defense counsel
3172 COMER v. SCHRIRO
turned many of the prosecutors’ remarks against
them in defense counsel’s rebuttal. Id. at 181-82.

Similarly, Comer’s prosecutor did not misstate or
manipulate any evidence in making his objectionable
remarks. The trial court also instructed the jurors that
their decision was to be based only on the evidence
produced in court, with evidence defined as witness
testimony and exhibits. The jurors were specifically
admonished that the lawyers’ statements during
opening and closing argument were not evidence.
Furthermore, they were instructed not to be “influ-
enced by sympathy or prejudice.” And during his
closing statement, the prosecutor warned the jurors
that his statements, and those of defense counsel,
were not “proof.” These admonishments and instruc-
tions significantly limited any prejudice caused by
the prosecutor’s remarks. See, e.g., Furman v. Wood,
190 F.3d 1002, 1006 (9th Cir. 1999) (upholding the
state court’s ruling that the prosecutor’s improper
statements did not render trial fundamentally unfair
because the prosecutor also told the jury that his
arguments were not evidence, and because the gov-
ernment presented a strong case against the defen-
dant); Hall v. Whitley, 935 F.2d 164, 165-66 (9th
Cir. 1991) (holding that the prosecutor’s improper
comments were isolated moments in a three day
trial, and their effect was mitigated by the judge’s
instructions that closing arguments were not evi-
dence, and the strong proof of the defendant’s guilt).

Additionally, as discussed earlier, there was strong
evidence of Comer’s guilt. Comer claims that the
prosecutor’s remarks were intended to induce the
jury to find that he had premeditated an intent to
shoot Pritchard. However, the prosecutor only once
referred to Comer as a “monster” when discussing
the murder count. All of the prosecutor’s other
 COMER v. SCHRIRO 3173
objectionable remarks were made during his discus-
sion of the Andrews and Brough counts, on which
there was overwhelming evidence of Comer’s guilt.
There was also strong evidence, including eyewit-
ness testimony, regarding Comer’s premeditation.
Finally, any emotional impact that the prosecutor’s
statements may have had on the jury likely only rep-
licated the impact of earlier eyewitness testimony
from the victims and Willis. See Fields v. Woodford,
309 F.3d at 1109 (“[G]iven the eyewitness testimony
about what [the defendant] did to [the victim], there
is no reasonable probability that the prosecutor’s
emotional appeal affected the verdict.”).

Accordingly, we hold that while the prosecutor’s
remarks were improper, they do not rise to the level
of a due process violation. See Hall, 935 F.2d at 165-
66; Kellogg v. Skon, 176 F.3d 447, 451-52 (8th Cir.
1999) (holding that the prosecutor’s improper
remarks, including calling the defendant a “mon-
ster,” “sexual deviant,” and “liar,” did not rise to the
level of a due process violation because of limiting
jury instructions, no attempt on the part of the prose-
cutor to manipulate or misstate the evidence, and
heavy evidence of guilt).

Additionally, we reject Comer’s contention that
these remarks were an impermissible appeal to the
passion and prejudice of the jury. Comer cites North-
ern Mariana Islands v. Mendiola for the proposition
that comments “designed to appeal to the passions,
fears, and vulnerabilities of the jury” may constitute
grounds for reversal. 976 F.2d 475, 486-487 (9th Cir.
1992), overruled on other grounds by George v.
Camacho, 119 F.3d 1393 (9th Cir. 1997). In Men-
diola, however, “we emphasized . . . that the com-
ment was prejudicial only in view of the weakness
of the prosecution’s case, the prosecutor’s disingenu-
3174 COMER v. SCHRIRO
ity as to the whereabouts of the missing weapon, and
the Government’s resort to coercion to obtain evi-
dence.” United States v. Hinton, 31 F.3d 817, 825
(9th Cir. 1994) (explaining our holding in Men-
diola). Because none of these factors are present
here, we hold that the prosecutor’s remarks did not
render Comer’s trial fundamentally unfair.

c. Refusal to Strike Venirepersons

Comer’s fourth guilt-phase claim is that the trial
court’s failure to strike for cause two venirepersons
denied Comer his right to a fair and impartial jury as
required by the Sixth and Fourteenth Amendments.
Comer contends that two of the venirepersons ques-
tioned during jury selection, Thrailkill and Wilborn,
were biased because of their previous knowledge of
some of the facts of the case and, therefore, should
have been dismissed for cause. When the trial court
refused to strike the two potential jurors, Comer’s
counsel used two of his preemptory challenges to
remove them from the jury. Even if the trial court
erred in failing to strike the two venirepersons in
question, such error does not constitute an unconsti-
tutional denial of a fair and impartial jury unless the
venirepersons sit on the jury. United States v.
Martinez-Salazar, 528 U.S. 304 (2000). Because
Thrailkill and Wilborn were not members of
Comer’s jury, he suffered no constitutional harm.

d. Conclusion

For the foregoing reasons, we affirm the District
Court’s denial of Comer’s habeas petition as to his
guilt-phase claims.

4. Penalty-Phase Claims
 COMER v. SCHRIRO 3175
Pursuant to our holding that several of Comer’s
penalty-phase claims were impliedly exhausted by
Arizona’s independent review of Comer’s capital
case, we have before us five claims of error from
Comer’s sentencing hearing. Comer contends that:
(1) his sentencing counsel rendered ineffective assis-
tance; (2) he was constitutionally entitled to a hear-
ing to determine his competency at the time of
sentencing; (3) the conduct of a post-sentence com-
petency hearing in his absence violated his Sixth,
Eighth, and Fourteenth Amendment rights; (4) sen-
tencing him while unclothed and semi-conscious
impaired his right to allocution; and (5) sentencing
him for a capital crime while unclothed violated the
Fourteenth Amendment.

As to Comer’s fifth claim, we hold that his Four-
teenth Amendment due process rights were violated
by the circumstances under which he was presented
to the sentencing court. Because we grant his writ of
habeas corpus on this basis, we do not address
Comer’s other sentencing-phase claims.

a. Comer’s Treatment During
Sentencing

Comer contends that his due process rights under
the Fourteenth Amendment were violated when he
was sentenced to death while nearly naked and
barely conscious. While this is an issue of first
impression for this Court, we agree with Comer that
his treatment during sentencing “shocks the con-
science” and warrants reversal of his sentence.

“Regard for the requirements of the Due Process
Clause ‘inescapably imposes upon this Court an
exercise of judgment upon the whole course of the
proceedings (resulting in a conviction) in order to
3176 COMER v. SCHRIRO
ascertain whether they offend those canons of
decency and fairness which express the notions of
justice of English-speaking peoples even toward
those charged with the most heinous offenses.’ ”
Rochin v. California, 342 U.S. 165, 169 (1952) (cita-
tion omitted). Conduct of state officials that “shocks
the conscience” will not be tolerated. Id. at 172.

Subsequent decisions have given content to this
broad protection. In particular, numerous courts have
found that the routine and unjustified shackling of a
defendant, at any stage of trial proceedings, violates
due process. See Deck v. Missouri, 544 U.S. 622
(2005) (holding that the visible shackling of a defen-
dant before a jury during the guilt phase or penalty
phase of a capital trial violates due process absent
case-specific security justifications for the shack-
ling); United States v. Howard, 429 F.3d 843 (9th
Cir. 2005) (holding that the shackling of pretrial
detainees during their first appearance before a mag-
istrate judge violates due process unless reasonably
related to a legitimate goal); Duckett, 67 F.3d at 746-
50 (holding that the shackling of a defendant during
the penalty phase of a capital trial is inherently prej-
udicial and may only occur if compelling circum-
stances justify the need for shackling to maintain
order in the courtroom).

Five basic considerations have led courts to con-
clude that unjustified shackling is a due process vio-
lation. First, shackling suggests to the trier of fact
that the defendant is dangerous, which adversely and
impermissibly affects perception of the defendant in
a way that undermines the trier’s “ability to weigh
accurately all relevant considerations — consider-
ations that are often unquantifiable and elusive —
when it determines whether a defendant deserves
death.” Deck, 544 U.S. at 633; see also Duckett, 67
 COMER v. SCHRIRO 3177
F.3d at 748. Thus, “shackles can be a thumb [on]
death’s side of the scale.” Deck, 544 U.S. at 633
(internal quotations omitted).

Second, shackling is an affront to the very “dig-
nity and decorum of judicial proceedings.” Id. at
631-32; Howard, 429 F.3d at 851; Duckett, 67 F.3d
at 747-48. As the Supreme Court explained, “[t]he
courtroom’s formal dignity, which includes the
respectful treatment of defendants, reflects the
importance of the matter at issue, . . . and the gravity
with which Americans consider any deprivation of
an individual’s liberty through criminal punish-
ment.” Deck, 544 U.S. at 631. Depriving a court-
room of such dignity undermines public confidence
in judicial proceedings. Id.

Third, shackles greatly reduce a defendant’s abil-
ity to communicate with counsel and participate in
his own defense. Id. at 631; see also Howard, 429
F.3d at 851; Duckett, 67 F.3d at 747-48. Fourth, and
related to the third concern, physical restraints may
also confuse and embarrass the defendant, impairing
his mental faculties. Howard, 429 F.3d at 851;
Duckett, 67 F.3d at 747-48. And fifth, shackles may
cause the defendant physical and emotional pain. Id.
For these reasons, we and the Supreme Court have
concluded that unjustified shackling substantially
interferes with a defendant’s right to a fair and
decent trial and sentencing proceeding.

The foregoing reasons apply with even greater
force to the circumstances of Comer’s sentencing.
Comer was presented to the sentencing court not
only in shackles, but nearly naked, with only a blan-
ket covering his genitals, and slumped to one side in
a wheelchair with blood oozing from his head
wounds. His lack of clothing revealed to the court
3178 COMER v. SCHRIRO
and the public his numerous and graphic tattoos,
which cover most of his body. And the responses he
mustered to the court’s questions were cursory at
best.

This presentation of Comer — shackled, beaten,
and tattooed — certainly increased the perception of
his dangerousness. If Comer had been sentenced
before a jury, these circumstances would have given
rise to insurmountable prejudice. See Deck, 544 U.S.
at 633. Because Comer was sentenced by a judge,
however, this Circuit has concluded that the risk of
prejudice is lessened. See Howard, 429 F.3d at 850.
Nonetheless, when a judge is asked to decide
whether a defendant deserves to live or die, the
judge, like any jury, must weigh those considerations
that are “often unquantifiable and elusive.” Deck,
544 U.S. at 633. It is hard to believe that any human
being, no matter how well-trained to be impartial,
would be entirely unaffected by the dehumanizing
impact of Comer’s appearance in the courtroom.

This dehumanizing effect was compounded by the
fact that the final sentencing hearing was one of the
few times Comer had appeared before the judge.
Comer did not attend the pre-sentencing hearing at
which aggravating and mitigating evidence was pres-
ented. He only appeared briefly before the court at
the beginning of the guilt phase of his trial, then
waived his presence for the rest of the proceeding.
Thus, Comer’s presence before the court during his
final sentencing hearing was one of the few times the
judge had to confront the individual over whom he
held the power of life and death. Yet the circum-
stances of this meeting, far from humanizing Comer,
deprived him of his dignity.

Furthermore, the appearance of this naked, bleed-
ing, shackled man was a severe affront to the dignity
 COMER v. SCHRIRO 3179
and decorum of the judicial proceedings. We have
never before read of a man being sentenced to death,
or even presented to a court, under such circum-
stances. Even inmates in solitary confinement have
a dignitary interest in being clothed. See, e.g., Max-
well v. Mason, 668 F.2d 361, 363, 365 (8th Cir.
1981). If the court’s formal dignity is a reflection of
the importance of the matter at issue, Deck, 544 U.S.
at 631, then preservation of that dignity is most
important when deciding whether a man lives or
dies. The sentencing of Comer without such dignity
or decorum is unacceptable.

Comer’s condition during sentencing also dimin-
ished his ability to communicate with his counsel.
Not only were his hands bound, but as the jail psy-
chiatrist later testified, Comer was exhausted, which
had an unquantified effect on his mental processes.
And just as shackles may confuse and embarrass a
defendant, so too certainly does being wheeled into
a courtroom while nearly naked and exhausted.
Finally, with respect to the fifth consideration,
Comer suffered physical pain from his visible lacera-
tions.

As the foregoing demonstrates, the due process
considerations that militate against the routine use of
shackles during the trial and sentencing of defen-
dants apply with even greater force to the circum-
stances under which Comer was sentenced. If those
circumstances had been different — if Comer had
been handcuffed, yet fully clothed and physically
inviolate, when he attended the sentencing — then
we would need to inquire further into the reasons for
Comer’s condition because even shackling may be
justified by special circumstances such as security
concerns. Deck, 544 U.S. at 633; Howard, 429 F.3d
at 851. We cannot conceive of any reasonable justifi-
3180 COMER v. SCHRIRO
cation, however, for escorting a naked and bleeding
defendant into a courtroom for a capital sentencing
hearing. We hold that Comer’s due process rights
were violated when he was sentenced while shack-
led, nearly naked, bleeding, and exhausted.

Additionally, the circumstances of Comer’s sen-
tencing were so inherently prejudicial and their
impact so difficult to divine from the trial transcript,
that, as in the shackling cases, Comer “need not
demonstrate actual prejudice to make out a due pro-
cess violation.” Deck, 544 U.S. at 635. When life
and death are at stake, subjective considerations such
as the humanity and dignity of a defendant will
always influence the sentencing decision, whether it
is made by judge or jury. The effect of Comer’s
diminished ability to communicate with his counsel,
and the mental impact of his nakedness, exhaustion,
and shackling, are also difficult to measure. Thus,
we cannot find beyond a reasonable doubt that the
circumstances of Comer’s sentencing did not con-
tribute to the sentence he received. For these reasons,
Comer is entitled to a new sentencing hearing.

III. CONCLUSION

We affirm the District Court’s denial of Comer’s
habeas corpus petition as to the guilt phase of his
trial. We reverse the District Court’s denial of his
writ of habeas corpus as to the penalty phase and
remand with instructions to grant the writ as to the
sentence unless Arizona begins resentencing pro-
ceedings within a reasonable amount of time to be
determined by the District Court.

AFFIRMED in part; REVERSED in part and
REMANDED.
 COMER v. SCHRIRO 3181
Nothing in this opinion requires the Arizona court to con-
duct a new penalty phase. The due process violation occurred
after the guilt phase of the trial. The due process violation
occurred after the penalty phase of the trial. The due process
violation occurred at the sentencing hearing held by the Ari-
zona trial judge who imposed the penalty of death on a man
who was naked, bleeding, shackled, exhausted and semicon-
scious.

Comer wants to die. Arizona wants to execute him. There
is little question that this will happen. Judge Ferguson’s opin-
ion only requires that the sentence of death be pronounced to
an understanding human, not to a discarded piece of flesh.