dissenting.
Due to the unique facts in this case that indicate that defendant is competent and that he has made a voluntary, knowing, and intelligent waiver of his right to pursue post-conviction relief, I dissent from the Court’s holding that defendant cannot waive his right to prosecute a post-conviction relief application.
I
On October 3, 1995, one day after the denial of certiorari, the trial court issued a death warrant setting defendant’s execution for November 15,1995. Although defendant expressed his desire not to pursue post-conviction relief, the Office of the Public Defender filed a motion for permission to pursue post-conviction relief over defendant’s objection. The public defender also sought a stay of execution pending the projected petition for post-conviction relief and an evidentiary hearing on defendant’s competence.
On October 30, 1995, the trial court held a hearing on the motions. The public defender argued that it should be permitted to pursue a petition for post-conviction relief in the absence of defendant’s consent. Furthermore, the public defender challenged defendant’s competence and the voluntariness of his decision. The trial court ■ questioned defendant extensively at that hearing. Defendant responded affirmatively when asked whether he thought he had received a fair trial and whether his death sentence was proper. Defendant indicated that the public defenders had discussed the post-conviction relief process with him, and had explained that they might be able to present certain arguments to the court that could prevent defendant’s execution, at least temporarily. Defendant further indicated his wish that the public defenders not file a petition for post-conviction relief on his behalf. When asked why, defendant replied:
*619I think that living in jail is terrible to live there, I have been locked up 7 years now and it’s been murder and everything is always publicity about this thing so I have enough trouble with my family, I want to do it for once and get it over with.
Additionally, defendant stated that although his former wife “told [him] to do what [he] feel[s] is right,” no one was forcing him to make those decisions. Defendant also indicated his understanding that the governor can decide to exercise the power of clemency.
At the close of the hearing, the court issued a temporary stay of execution, and appointed Dr. Azariah Eshkenazi, a psychiatrist, to examine defendant on behalf of the court. By order dated November 8, 1995, the court appointed Alan L. Zegas to represent defendant. In a subsequent order dated November 17, 1995, the court ordered all relevant records to be released to Dr. Eshkenazi and Mr. Zegas.
On December 7,1995, and January 4,1996, defendant submitted two affidavits in which he reiterated his desire to forego post-conviction relief and have the death penalty imposed. In his affidavit dated December 7,1995, defendant states:
6. Mr. Smith and Mr. Friedman [public defenders] have fully described to me the reasons they have for wanting to file a petition for post-conviction relief for me, and they have outlined to me the arguments they intend to make on my behalf. I understand what they want to do and why they want to do it, and I appreciate then-good intentions. I have instructed Mr. Smith and Mr. Friedman, however, to not file the proposed petition because I wish to be executed. In giving out this instruction, I am freely, knowingly and voluntarily giving up any right I may have to further review of the judgment of conviction by any court. I further understand that by giving up any right to further review, I am increasing the chance that I will be executed quickly. This is what I want.
7. I have, for a long time, given a lot of thought to whether I wished to continue challenging the judgment of conviction. Approximately two years ago, I decided that I would prefer being put to death over spending the rest of my life in jail or delaying the time for my execution. In my view, any legal challenge will ultimately prove to be useless. Continuing the appeals process only creates more uncertainty for me as to when exactly I will die. I no longer wish to live with this uncertainty and I no longer wish to continue to exist under the hellish conditions I am existing under in prison.
8. In my view, death is preferable to the day-to-day conditions I have to endure on death row. I have almost no contact with people. I am confined to a dirty cell in which there are mice and rats. When I leave my cell, I am strip searched. The *620food I am given to eat is bad and not tolerable. I have not had visitors from any family members for over 6 years. The longer I live, the more my family name is damaged by publicity about my crime.
9. I committed the murder of Irving Flax and I did this deliberately, knowingly, intentionally and willfully. The verdict of the jury was correct. I have no excuse for my crime and I was not adversely effected by drugs or alcohol at the time I committed it. I fully understood what I was doing, and I was not operating under a diminished capacity. I had a clear mind. I also knew what the potential consequences were for the murder I committed, and I knew that those consequences included the death penalty. Although I am facing execution, I have never been opposed to the death penalty on moral, religious or other grounds.
10. My decision to die and to have no further challenges raised to the judgment of conviction is my own decision and has been made by me after thinking carefully about life and death, the conditions I am living under, and the chance I have of ever regaining my freedom. Though I am currently taking certain prescribed medications, I do not feel that these medications have, in any way, effected my ability to make a clear decision about what I want to do with my life.
11. In addition to death being preferable to the conditions I am currently living under, I further believe that I have a greater chance for religious absolution if I acknowledge my crime and take no further legal action to prevent my death. In my view, the action that the public defender wishes to take on my behalf will only delay the time for my death, cause my victim’s family more pain, and cause me to endure for a longer time the intolerable conditions I am living under in prison.
On February 13 and 14, 1996, a hearing was held to determine defendant’s competence to waive his right to file a petition for post-conviction relief. The court took testimony from Dr. Eshkenazi, the court-appointed expert, and Dr. Kenneth Weiss, the public defender’s expert. Defendant also testified.
Dr. Eshkenazi diagnosed defendant as suffering from a “life circumstance,” and concluded that defendant was not suffering from schizophrenia. Dr. Eshkenazi opined that defendant has the capacity to make a rational choice with respect to continuing or abandoning his further appeals.
Dr. Eshkenazi reported that at the time of his evaluation of defendant, defendant was taking the following minimal doses of medication: 25 milligrams of Mellaril, an anti-psychotic tranquilizer, twice a day; 25 milligrams of Thorazine, an anti-psychotic, at bedtime, and 100 milligrams of Sinequan, an anti-depressant, at bedtime. According to Dr. Eshkenazi, those low doses of Mellaril and Thorazine sedate defendant and help him sleep better. The *621doctor indicated that defendant behaved as though he was not taking any medication. When asked about the combined effect of the three medications, Dr. Eshkenazi responded:
I believe that they have really calmed him down. They enable him to think a little better maybe and he’s' — and they have enabled him to survive in the jail system.
Dr. Eshkenazi stated that he “did not see any psychiatric condition or illness that would interfere with [defendant’s] ability to make rational and competent decisions.” He further stated that defendant denied ever having any visual or auditory hallucinations, and stated that his examination revealed no mental illness, defect, or psychoses. While observing the possibility that defendant may suffer from depression, Dr. Eshkenazi “did not see clinical symptoms of depression.”
On cross-examination, the public defender challenged Dr. Eshkenazi with defendant’s prior prison medical records, in which Dr. Guy, the prison psychiatrist, had repeatedly notated, “Schizophrenia, chronic, medication control paranoia and voices. Medication: Mellaril 50 milligram[s] in the morning, 50 miUigram[s] at bedtime and Thorazine, 50 milligram[s at] bedtime times 60.” Dr. Eshkenazi responded that Dr. Guy practiced “poor psychiatry,” because he had spent only a few minutes at a time with defendant,3 recorded no symptoms, and provided no explanation of the diagnosis of schizophrenia. Dr. Eshkenazi stated that because Dr. Guy failed to substantiate his opinion, Dr. Eshkenazi gave that opinion little weight. Further, Dr. Eshkenazi explained that if defendant was actually schizophrenic, then the medical doses would not be sufficient to treat the schizophrenia because of the tolerance for medications that defendant had built up over many years of taking drugs. Dr. Eshkenazi added that when Mellaril and Thorazine are used to treat schizophrenia, they are typically prescribed in doses ranging from 400 to 600 milligrams per day, and 600 to 4,000 milligrams per day, respectively.
*622Dr. Weiss described defendant as cooperative, but not spontaneous or forthcoming in providing information. He stated that defendant has a “restricted emotional expression,” that is seen frequently among people treated with anti-psychotic medications like those taken by defendant. Dr. Weiss remarked that defendant exhibited a slowness of movement sometimes associated with anti-psychotic medication.
On the subject of defendant’s desire to die, Dr. Weiss indicated in his report that defendant had “ma[de] a case for being executed,” which he explained to mean that defendant “did everything he could to throw me off the trail of any psychiatric conditions.” The doctor stated:
[IJt’s pretty clear to me that Mr. Martini is depressed, that he has sad mood[s], that he’s lost his will to live and whatever one might think about whether that is completely rational or not rational, it’s fairly clear to me that his mood was low, he was despondent. The only thing he hoped for was that he could prevail in this legal setting so that he would come closer to his execution date.
On cross-examination, Dr. Weiss conceded that the realities of prison life and the uncertainty faced by a death row inmate would tend to make the average person depressed and suicidal.
Dr. Weiss testified that defendant’s current drug treatment is consistent with Dr. Guy’s diagnosis of chronic schizophrenia. He stated, however, that “the symptoms of schizophrenia if present were not strong enough for me to draw any independent conclusions about whether [defendant] in fact has [schizophrenia].” Dr. Weiss concluded that defendant is suffering from depression and that the medication he is taking is inadequate to treat it. Dr. Weiss indicated that defendant’s current medication could actually lower his mood and deepen his depression.
On the ultimate question of defendant’s capacity to choose to forgo further appeals, however, Dr. Weiss was equivocal. He testified that defendant is well aware of the nature of his decision and fully understands what is at stake. He indicated, however, that he felt “troubled” by his observations of defendant’s depression, and had “some doubts in [his] mind about whether this was the depression talking or whether this was a completely rational *623person talking.” Dr. Weiss stated: “I would prefer to demur as far as a — an ultimate conclusion as to his capacity because I don’t think [Mr. Martini] has been adequately treated yet for me to know how he is at his best.” Ultimately, Dr. Weiss admitted that he could not say with reasonable medical certainty that defendant lacks the capacity to waive further appeals.
Defendant’s testimony was presented almost entirely through leading questions. In response to his attorney, defendant admitted to intentionally killing the victim, Irving Flax. He agreed that the jury had properly found him guilty, that he had no excuse for his crime, and that he is satisfied with the legal representation he received both at trial and on appeal.
Defendant testified that he understands that he has a right to an appeal and that his death sentence could be vacated if that appeal is successful. He responded affirmatively when asked if he is willing to give up that right. He agreed that his decision to forgo an appeal was voluntary, that he was not influenced by other people, and that the drugs he is taking were not affecting his decision.
When asked why he wants to be put to death, defendant stated, “Jail is a bad place; the food is bad, extortion, stabbings, loud, noisy, dirty, rats and mice, absolution.” The defense attorney then asked whether defendant meant religious absolution, to which defendant responded, ‘Tes, I do, and that I should be punished for what I did ... I want to — I want to, you know, repent for what I did. I’m sorry for what I did. I think that I should be punished.” When offered the opportunity to say something to the judge, defendant said, “Listen to me and let [me] have the death penalty.”
At the conclusion of the proceedings, the trial court determined that defendant is competent to waive his processing of a post-conviction relief petition and that the public defenders may not proceed with the petition for post-conviction relief. The court further concluded that defendant is not suffering from any metal illness or impairment. It noted that if defendant is suffering from *624schizophrenia, the condition has not affected his ability to choose to forgo his post-conviction petition, a choice that the court found rational. Although the court found that defendant is depressed, the court expressed its opinion that anyone would be depressed in defendant’s situation and concluded that the condition does not affect defendant’s ability to make a rational choice whether to proceed with his appeal. Considering Dr. Weiss’s opinion that defendant’s medication affects his ability to make a rational decision, the court stated, “I really don’t know what [Dr. Weiss] bases that on, but we see the person, we hear the person.”
II
I disagree with the majority’s view that the issues presented here are essentially the same as those presented in Koedatich I and II and in Hightower. Those cases involved presenting mitigating evidence in the penalty phase, permitting defendant to request the death penalty during the trial, and prohibiting a direct appeal of a sentence of death. In all those cases, the reliability of the conviction and the sentence of death had not been tested in direct appeals. In the present case, however, defendant’s direct appeals have been exhausted, and he concedes his guilt and proper imposition of the death penalty. I agree that the State’s interest in the reliability of the determination of guilt and the sentence of death must be established at trial and on direct appellate review before an execution should be permitted. That does not, however, prevent a competent defendant from waiving his or her personal right to file for post-conviction relief.
I am also persuaded that the majority’s reliance on the two cases cited by Judge Fletcher in her lecture, ante at 609, 677 A.2d 1110, is misplaced. The defendants in those two cases continued to maintain their innocence even after they were convicted. In contrast, Martini admits his guilt and asserts that he is perfectly satisfied with the abled assistance of his attorneys.
*625III
Rule 3:22 controls our post-conviction relief proceedings. “Any person convicted of a crime may, pursuant to this rule, file with the county clerk of the county in which the conviction took place a petition for post-conviction relief____” R. 3:22-1 (emphasis added). Based on the language of that rule, post-conviction relief applications are not only personal to a defendant, but also discretionary or elective rather than mandatory. The personal nature of the petition is further reflected by the requirement that the petition be personally verified by the defendant. R. 3:22-8. In addition, Rule 3:22-2 designates four alternative grounds for relief: (1) substantial denial of a federal or state constitutional right in the post-conviction proceedings; (2) lack of jurisdiction of the court to enter the judgment of conviction; (3) imposition of a sentence not authorized by law or in violation of established procedures; and (4) any ground available heretofore as a basis for collateral attack by habeas corpus, statute or common law. Claims that were adjudicated on their merits in a direct appeal may not be relitigated in post-conviction proceedings. R. 3:22-5.
Although certain claims are best pursued in a post-conviction relief proceeding, such as ineffective assistance of counsel, or a claim based on a violation of Brady v. Maryland, supra, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, defendant has expressly waived his right to pursue such claims. The Simmons issue, ante at 610-612, 677 A.2d at 1110-1111, was raised and decided in Martini I. Rule 3:22-5 expressly bars relitigation of the Simmons issue in a post-conviction relief proceeding. Defendant has been made aware that his decision to forego a post-conviction relief proceeding will bar him from seeking federal habeas corpus based on Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438, 443 (1971).
I agree with the majority that the death penalty should not be carried out until defendant’s guilt and the lack of disproportionality have been reliably established. I part company with the majority’s conclusion that post-conviction relief proceedings are required before reliability can be sufficiently established. Both *626Martini I and Martini II required exhaustive reviews of both the record and the controlling legal principles before the Court concluded that defendant’s guilt and the lack of disproportionality were reliably established. Moreover, Martini admits his guilt, agrees that the aggravating factor applied, and professes his satisfaction with his legal counsel throughout.
It is my belief that once guilt, the application of at least one aggravating factor, and the lack of disproportionality are reliably established, a competent defendant has the right to decide not to prosecute a post-conviction relief application even if it means hastening his or her own death. While a capital defendant has no right to compel the State to execute him or her, he or she has the right not to institute legal proceedings that would delay execution. Martini’s decision not to seek post-conviction relief was no doubt influenced by the fact that he has two life terms for murder awaiting him in Arizona. As Justice Broussard of the California Supreme Court so aptly stated, “A man facing the awful alternatives of execution or life imprisonment without possibility of parole could rationally prefer execution, or at least feel that the comparative advantage of life imprisonment was not worth the humiliation and loss of dignity he believes entailed in the presentation of mitigation evidence.” People v. Deere, 41 Cal.3d 353, 369, 222 Cal.Rptr. 13, 23-24, 710 P.2d 925, 935 (1985) (Broussard, J., concurring). The same is true with respect to presenting a post-conviction relief application.
IV
Whether Martini can waive his right to pursue post-conviction relief should not be influenced by the pendency of proportionality review in the case involving defendant Joseph Harris. Even if the data submitted in that ease persuade this Court to vacate Harris’s sentence of death, this Court may not necessarily declare our Death Penalty Act unconstitutional. Martini is aware of the pendency of the Harris case and that it could result in declaring the Act unconstitutional. Notwithstanding that information, he *627has knowingly and intelligently elected to waive his right to prosecute a post-conviction application. Nonetheless, I would not oppose staying Martini’s execution until the Hams proportionality review is conducted by this Court in September 1996. Because his waiver decision is revocable, Martini may change his mind after the arguments in the Hams case have been presented.
If Martini is executed and the Death Penalty Act is eventually declared unconstitutional, Martini’s execution will have been based on his waiver decision. That position would be analogous to that of death-row inmates executed under our previous Death Penalty statute, N.J.S.A 2A:113-4, that was declared unconstitutional in State v. Funicello, 60 N.J. 60, 65-66, 286 A.2d 55, certif. denied, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). Unlike Martini, most of those were executed while still protesting their innocence. As was recognized in State v. Marshall, supra, 130 N.J. at 219, 613 A.2d 1059, one or more death-row inmates will die before all legal issues surrounding our present Death Penalty Act have been resolved. A court can only see that justice is rendered at a given time.
Finally, I agree that many of the rules that control post-conviction relief applications should be relaxed for a death-row inmate who has filed his or her own first petition for post-conviction relief.
I would affirm the judgment of the Law Division.
GARIBALDI, J., joins in this opinion.
For reversal and remandment — Chief Justice WILENTZ, and Justices Handler, Pollock, O’Hem and Stein — 5.
For affirmance — Justices GARIBALDI and COLEMAN — 2.
Defendant testified that Dr. Guy meets with him approximately four times a year for approximately five minutes at a time.