                                            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

                 Argued and Submitted
           May 17, 2005—Pasadena, California

                Filed September 13, 2006

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

                Opinion by Judge Ferguson;
  Partial Concurrence and Partial Dissent by Judge Rymer




                          11115
                      COMER v. SCHRIRO                  11121


                         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 petitioner-appellant.

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


                         OPINION

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 challenging his conviction and
capital sentence for first degree murder, armed robbery, kid-
napping, aggravated assault, sexual assault, and sexual abuse.
Before Comer’s appeal could be heard, however, the State of
11122                     COMER v. SCHRIRO
Arizona (the “State”) and Comer filed motions to dismiss the
appeal because Comer expressed his desire to be executed. On
remand from 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 chal-
lenges that determination on appeal.

   We agree with the District Court that Comer competently
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 previously 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 proceed to review the Dis-
trict 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 sen-
tenced 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 chil-
dren arrived at the Burnt Corral campground in Apache Lake,
Arizona on February 2, 1987. The next evening, Comer
invited a nearby 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
     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                   11123
gunshot wound or later on. Comer later stabbed him in the
neck. Comer then removed an Emergency Medical Techni-
cian (“EMT”) badge from Pritchard’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 mari-
juana, Comer and Willis posed as “Arizona Drug Enforce-
ment” officers, and ordered them out of their tent at gunpoint.
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 fol-
lowing 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.

  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 campground and had reported the incident to the
Department of Public Safety. The police quickly apprehended
Comer and Willis.
11124                  COMER v. SCHRIRO
Charges

   Comer and Willis were charged in Maricopa County with
the first degree murder and armed robbery of Pritchard and
the armed robbery, kidnapping, and aggravated assault of
Jones and Smith. In addition, 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 kidnap-
ping 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 evi-
dence, 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 psychi-
atrist whether Comer was conscious, the state trial judge sen-
tenced him to death for the murder of Pritchard and to
aggravated, consecutive terms of imprisonment for the other
offenses.

  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 constitutional-
ity 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 Ari-
                            COMER v. SCHRIRO                           11125
zona Supreme Court denied the petition for review on Sep-
tember 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 peti-
tion 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 ineffective assis-
tance of defense counsel.3 The District Court considered the
merits of these claims and, on November 20, 1997, denied
Comer’s habeas petition.

Appeal to this Court

   On February 18, 1998, Comer filed a timely notice of
  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
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)).
11126                  COMER v. SCHRIRO
appeal to the Ninth Circuit challenging the District 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 concerning 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 Dis-
trict Court held an evidentiary hearing on the separate ques-
tions of whether Comer was competent to terminate
representation by counsel and waive legal review and, if so,
whether his conditions of confinement rendered those deci-
sions voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.
2000).

  Pursuant to our order, the District Court conducted an evi-
dentiary hearing in March 2002. Following extensive discov-
ery and a three-day hearing, the District 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
Counsel appealed the District Court’s judgment to this Court.
                              COMER v. SCHRIRO           11127
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 order, the District Court sug-
gested 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 incarcer-
ated. The parties submitted proposed findings of fact and con-
clusions 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 compe-
tency 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 preponderance 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 litigation 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.
11128                      COMER v. SCHRIRO
312, 314 (1966) (per curiam)).4 In arriving at this determina-
tion, the District Court reviewed evaluations, reports, testi-
mony from two psychiatrists and one psychologist, Comer’s
personal background, and other witness testimony and exhib-
its 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)
   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?
       (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).
                        COMER v. SCHRIRO                    11129
(citing Demosthenes v. Baal, 495 U.S. 731, 735 (1990)). The
District 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 here briefly to assess whether or not it was
clearly erroneous.

   [1] First, the District Court determined that its own court-
appointed expert, Dr. Sally Johnson, was significantly more
qualified to render a competency opinion than Habeas Coun-
sel’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 conducted a forensic evaluation of an
inmate sentenced to death who wanted to dismiss his appeal.
Id. Moreover, the Court found Dr. Johnson’s investigation to
be thorough and her questions especially relevant. Id. at 1040.
Given the clear difference in expert qualifications between
Dr. Johnson and Dr. Krupers, as well as Dr. Johnson’s rela-
tively superior investigation, the Court did not clearly err in
affording greater weight to Dr. Johnson’s opinions.

   [2] 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 differen-
tial diagnoses of Comer’s various apparent depressive epi-
sodes. Specifically, with respect to Comer’s first apparent
depressive episode in May 1999, the Court found as credible
Dr. Johnson’s attempt to distinguish the differential diagnosis
of bereavement from the symptoms that Dr. Krupers attri-
buted 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 attri-
buted to a second major depressive episode. See id. at 1043-
11130                        COMER v. SCHRIRO
44. Finally, with respect to Comer’s apparent bouts of depres-
sion between his two purported episodes, the Court found as
credible Dr. Johnson’s explanation that Comer sought atten-
tion 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
differential 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 con-
cluding that Comer did not suffer from Major Depressive Dis-
order.

   [3] 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 questioned Dr. Krupers’s failure to identify credible
evidence with respect to the third group of PTSD symptoms
related to “increased arousal.” Id. at 1052. According to the
Court, Dr. Krupers needed to establish with sufficient cer-
tainty that Comer suffered from two or more of the following
symptoms related to “increased arousal”: (1) difficulty falling
or staying asleep; (2) irritability or outbursts of anger; (3) dif-
ficulty concentrating; (4) hypervigilance; and (5) exaggerated
startle response. Id. Dr. Krupers, however, merely speculated
that “most prisoners in [Comer’s] situation” would have diffi-
  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)
                          COMER v. SCHRIRO                       11131
culty 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 District Court did not
clearly err in dismissing as unspecific Dr. Krupers’s factual
applications of the criteria to Comer’s symptoms.

   [4] Lastly, the District Court determined that Comer did not
suffer from Segregated Housing Unit (“SHU”) syndrome. The
Court based this determination on Dr. Johnson’s and Comer’s
testimony contradicting Dr. Krupers’s findings concerning
SHU syndrome. Id. at 1057. The Court identified and
accepted the following characteristic symptoms of SHU syn-
drome: massive free-floating anxiety, hyperresponsiveness,
derealization, difficulty with concentration and memory, acute
confusional states, ideas of reference and persecutory ideala-
tion (paranoia), 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. John-
son’s prior work with patients in segregated housing units and
the fact that Comer’s own testimony did not corroborate Dr.
Krupers’s findings. Id. Even though Dr. Krupers was quali-
fied to offer his opinion on the disorder, he did not have prior
experience in diagnosing or treating inmates who suffered
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 determination that Comer did not have SHU
syndrome to be clearly erroneous, particularly since there are
no rigorous DSM-IV criteria for diagnosing SHU syndrome.
See id. at 1055.
  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.”
11132                  COMER v. SCHRIRO
   In sum, the District Court’s preliminary determinations 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 determination 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 confine-
ment constitute punishment 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 vol-
untary and that the conditions of his confinement “have not
had a substantial effect nor have they rendered his decision
involuntary.” Comer, 230 F. Supp. 2d at 1071.

  [5] We previously summarized the legal standard to deter-
mine voluntariness of waiver:

    The Supreme Court has held that a waiver of a peti-
    tioner’s “right to proceed” is not valid unless, among
    other factors, it is “knowing, intelligent, and volun-
    tary.” Whitmore v. Arkansas, 495 U.S. 149, 165
    (1990) (emphasis added). “A waiver is voluntary if,
    under the totality of circumstances, [it] was the prod-
    uct of a free and deliberate choice rather than coer-
    cion 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 involuntary if it results from
                            COMER v. SCHRIRO                        11133
      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 petitioner’s partic-
      ular 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 con-
      ditions 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.

  [6] 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 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 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.
11134                        COMER v. SCHRIRO
cial Counsel 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, Special 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

      [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.
      [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.
                            COMER v. SCHRIRO                         11135
change your mind? [Comer]: Yes, sir”). Perhaps most signifi-
cantly, the District Court itself made clear to Comer that his
decision to waive his appeal was his own and would necessar-
ily result in his death.9 Despite all this, Comer repeatedly
stressed how he understood the significance and conse-
quences 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 vio-
lent actions in prison have contributed to his continued con-
finement in restrictive conditions. Both Dr. Johnson’s and Dr.
Krupers’s clinical evaluations make this apparent. Dr. John-
son reports:

       Review of Mr. Comer’s behavioral infractions (inci-
       dent reports) over the last 13 years shows numerous
  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]: 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.
11136                   COMER v. SCHRIRO
    major and minor violations. He had approximately a
    dozen violations for possession and manufacture of
    a weapon. In almost all cases this involved the mak-
    ing 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] has gradually, as the result of his behavior,
    developed a reputation within the Arizona DOC as
    being their highest security risk and most dangerous
    inmate. His intermittent manufacture of weapons and
    periodic impulsive verbal responses that are per-
    ceived as threatening, make it unlikely that he would
    succeed in changing the perception 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 circumventing security
    interventions made by the DOC.

Dr. Krupers reports:

    Mr. Comer feels compelled, as a symptom of his
    mental disorder, to continually manufacture [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] psychologically compelled behav-
    iors, to wit shank-manufacturing and threatening
    staff, prevent him from gaining even modest
    improvements in his actual conditions of confine-
    ment.
                           COMER v. SCHRIRO                          11137
   Based on Comer’s own willful and violent actions, it is dif-
ficult to see how the State acted improperly in placing him in
maximum confinement and, more importantly, how his condi-
tions of confinement have improperly coerced him into waiv-
ing his appeal.

   Second, the conditions of Comer’s confinement in the Ari-
zona Department of Corrections (ADOC) Special Manage-
ment 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 himself estimates that his one-person prison
cell in SMU II is twice as large as his two-person cell in Fol-
som (“[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 Folsom or SMU I. SMU II is “heaven”
compared to “Folsom” with “much nicer . . . conditions of con-
finement.”11 Comer references how other inmates were con-
fined in “supermax units” at SMU II and how they posed
equally as high a security risk as Comer. He defines his condi-
tions of confinement in the context 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.”
11138                  COMER v. SCHRIRO
   [7] 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 qualita-
tive difference between death and any other permissible form
of punishment, ‘there is a corresponding difference in the
need for reliability in the determination that death is the
appropriate punishment in a specific case.’ ” Zant v. Stephens,
462 U.S. 862, 884-85 (1983) (quoting Woodson v. North Car-
olina, 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 per-
sons.” Roper v. Simmons, 543 U.S. 551, 560 (2005).

   [8] 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 Amendment. Furman v. Georgia, 408 U.S.
238, 239-40 (1972). “[T]he death penalty has been treated dif-
ferently 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.” Thomp-
son v. Oklahoma, 487 U.S. 815, 856 (1988) (O’Connor, J.,
concurring). For a death 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).
                       COMER v. SCHRIRO                    11139
   [9] Permitting a state to execute a capital defendant without
a full adjudication of his previously filed federal habeas
appeal amounts to an Eighth Amendment violation. The “[Su-
preme] Court has repeatedly emphasized that meaningful
appellate review of death sentences promotes reliability and
consistency.” 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 “significant evidence . . . demonstrates that
the meaningful appellate review necessary in a capital case
extends beyond the direct appellate process.” Murray v. Giar-
ratano, 492 U.S. 1, 24 (1989) (Stevens, J., dissenting).

   [10] Especially vital is meaningful appellate review of a
capital defendant’s habeas petition. “The writ of habeas cor-
pus 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
“Congress’ 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, formalistic 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 omitted). Its “central con-
cern” is “fundamental fairness.” Strickland v. Washington,
466 U.S. 668, 697 (1984). Indeed, of the 599 federal habeas
petitions submitted from 1973 to 1995 challenging the consti-
tutionality 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 fed-
eral courts of appeal. Whitmore, 495 U.S. at 170-71 (Mar-
shall, J., dissenting). Habeas review, therefore, significantly
increases the reliability of a death sentence.
11140                     COMER v. SCHRIRO
   [11] In contrast, allowing a defendant to arbitrarily waive
such review, once it has been properly initiated by the defen-
dant 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 coopting the
power of the state’s capital punishment system to kill — a
power that must only be wielded in accordance with the Con-
stitution’s fundamental protections. 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 serious constitutional viola-
tions that occurred during Comer’s trial and sentencing pro-
ceedings. To pretend 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 illegally
convicted or sentenced person. As the Pennsylvania 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 finality, it is imper-
       ative that the standards by which that sentence is
       fixed be constitutionally beyond reproach. . . . [T]he
       waiver concept was never intended as a means of
       allowing a criminal defendant to choose his own sen-
       tence.
  12
    See Section II.C., infra, “Comer’s Habeas Claims.”
                           COMER v. SCHRIRO                          11141
Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978)
(internal citations omitted).13

   [12] To allow a defendant to choose his own sentence intro-
duces unconscionable arbitrariness into the capital punish-
ment 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 errors in his sentencing hearing prevent us from know-
ing 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 propriety 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 preserve the sanctity
of the Eighth Amendment from such violation. Federal appel-
late review of a capital defendant’s federal habeas petition is
a vital protection against such arbitrary and inconsistent
infliction of the death penalty.

   [13] We note that limiting a defendant’s ability to unilater-
ally waive constitutional safeguards is not without 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 ability to
  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.
11142                   COMER v. SCHRIRO
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 actu-
ally 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.

  This Circuit has already implicitly recognized the correct-
ness 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., dissent-
ing). Instead, in an en banc proceeding, we held that Landri-
gan may have received ineffective assistance of counsel
during his sentencing hearing and remanded for an evidenti-
ary hearing to develop the facts of the claim. Id. at 650.

   [14] Thus, in spite of Comer’s valid waiver, we must
review the merits of his habeas claims on appeal. To do other-
wise, 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 Gilmore 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 Gilmore, 429
                       COMER v. SCHRIRO                    11143
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 petitioner’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 previously been filed without his consent, by
appointed trial counsel. Id. at 1015, n.4. However, four days
before Gilmore’s scheduled execution, his mother, Bessie Gil-
more, filed an application for a stay of execution, claiming to
be acting as her’s son’s “next friend.” Id. at 1013. Mr. Gil-
more, 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 “un-
able, usually because of mental incompetence or inaccessibil-
ity, 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 litigate his
own cause due to mental incapacity, lack of access to court,
or other similar disability.” Id. at 165. The majority in Gil-
more held that Mr. Gilmore had “made a knowing and intelli-
gent 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 Gil-
more, that may at first appear relevant but is actually inappo-
site. In Whitmore, Jonas Whitmore sought to challenge the
validity of the sentence imposed on fellow death row inmate
Ronald Simmons, who had knowingly, intelligently, and vol-
untarily chosen to appeal neither his conviction nor his sen-
tence. Id. at 151. The Supreme Court ruled that Whitmore
lacked standing, and dismissed the petition for lack of juris-
diction. Id. at 165-66.
11144                 COMER v. SCHRIRO
  Notably, neither Gilmore nor Whitmore was decided with-
out significant dissenting opinions:

    When a capital defendant seeks to circumvent proce-
    dures necessary to ensure the propriety of his convic-
    tion 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 punish-
    ment be imposed only where the State has adequate
    assurance that the punishment is justified. The Con-
    stitution forbids the State to accept that invitation.

Whitmore 495 U.S. at 173 (Marshall, J., dissenting, joined by
Brennan, J.); See Gilmore, 429 U.S. at 1018 (White, J., dis-
senting, joined by Marshall and Brennan, J.) (“[T]he consent
of a convicted defendant . . . does not privilege a State to
impose a punishment 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 dis-
sents. In Gilmore, 429 U.S. at 1017 (J. Stevens, concurring,
joined by J. Rehnquist), Justice Stevens’s concurrence
described Bessie 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 dis-
sent was not before the Court. Id. at 1017 (J. Burger, concur-
ring, joined by J. Powell).

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

    This case presents the question whether a third party
    has standing to challenge the validity of a death sen-
                       COMER v. SCHRIRO                     11145
    tence 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 petition-
    er’s contention that particular conduct is illegal,” . . .
    and we thus put aside for now Whitmore’s Eighth
    Amendment challenge[.]

   Comer’s case is different. Comer himself initiated his cur-
rent appeal and properly stands before this court in his own
right. Comer began the present federal habeas proceedings by
filing with the District Court a preliminary petition for writ of
habeas corpus, 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 fed-
    eral constitutional rights.” [He] specifically
    requested that the district court appoint Peter J. Eck-
    erstom, his current counsel, and John R. Hannah, Jr.,
    of the Law Offices of the Federal Public Defender in
    Arizona, to represent him. He also asked the court to
    both provide his attorneys with sufficient time to file
    an amended petition and to grant a stay of execution.
    In support of his request for the appointment of
    counsel, he signed an affidavit attesting to his indi-
    gence.

    When Mr. Comer returned to state court with his
    federal constitutional claims, he personally verified
    the petition and repeated that he had given his con-
    sent 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. Fur-
    ther, he wrote that “Peter J. Eckerstrom is authorized
11146                  COMER v. SCHRIRO
    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 constitutionality of his
conviction and sentence.” Comer, 215 F.3d at 912. In con-
trast, Gilmore never chose to appeal. Gilmore, 429 U.S. at
1015, n.4. We exercised 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 concerning 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 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

   [15] Because Comer filed his federal habeas petition in
1994, the Anti-Terrorism and Effective Death Penalty 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 car-
ries his burden of proving that [his] detention violates the fun-
damental 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).
                           COMER v. SCHRIRO                11147
   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

   [16] 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 process or the existence
of circumstances rendering such process ineffective to protect
the rights of the 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).

   [17] 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 constitutional
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. Stew-
art, 191 F.3d 1181, 1185 (9th Cir. 1999). A state court’s auto-
matic 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 fundamen-
tal error review provision as not providing implied exhaustion
of otherwise precluded constitutional claims). Rather, only
11148                    COMER v. SCHRIRO
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 auto-
matic review of death sentences as impliedly exhausting con-
stitutional 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 “ha[d] an affirmative duty to review the entire
record in a capital case to determine . . . whether ‘the sentence
of death was imposed under the influence of passion, preju-
dice, 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 determination of
federal law.” Id. at 1307. Thus, Beam’s challenge to the con-
stitutionality of the use of an aggravating factor during sen-
tencing was not procedurally defaulted. Id.

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

   [18] As in Beam, we look both to Arizona’s statutes and its
case law to determine the parameters of Arizona’s indepen-
dent review of capital cases. “In capital cases, [the Arizona
Supreme Court] independently examine[s] the record to deter-
mine the existence of aggravating and mitigating circum-
stances and the propriety of imposing the death penalty.”
Comer, 799 P.2d at 348 (Ariz. 1990) (emphasis added). This
independent review specifically encompasses review of the
sentencing hearing and record as well as aggravating and mit-
igating circumstances to ensure, among other things, that
  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.
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                         11149
“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 well as aggravating and mitigating cir-
cumstances); 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 erroneously
imposed); State v. Bible, 858 P.2d 1152, 1206 (Ariz. 1993);
see also State v. Watson, 628 P.2d 943, 946 (Ariz. 1981) (not-
ing that the Arizona Supreme Court painstakingly reviews
death sentences 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 fac-
tors.” State v. Richmond, 560 P.2d 41, 51 (Ariz. 1977), over-
ruled 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 process includes scru-
tiny 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 deter-
mine that under the Eighth and Fourteenth Amendments the
death penalty is not being inflicted in an arbitrary and capri-
cious fashion). As the Arizona Supreme Court noted in
explaining its review, “[i]f the record reveals that the trial
court, for whatever reason, improperly sentenced a defendant
to death, we must overturn that sentence.” Id. at 791 (empha-
sis added).15

  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).
11150                      COMER v. SCHRIRO
        c.   Comer’s Impliedly Exhausted Habeas Claims

   The District Court found seven of Comer’s present 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 pro-
cess, 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 inde-
pendent review, the Arizona Supreme Court examines the
entire record, particularly the sentencing hearing, to determine
if any procedural errors occurred or other arbitrary factors
influenced the sentencing court’s decision to impose the death
sentence. The Arizona Supreme Court is clearly conscious 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 imposition of the death penalty. These claims were
also readily apparent from the record that the Arizona
Supreme Court painstakingly reviewed. Cf. Falcone v. Stew-
art, 120 F.3d 1082, 1084 n.2 (9th Cir. 1997) (constitutional
   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                   11151
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 sentencing hearing, and not fol-
lowing a statutorily required procedure at a post-sentence
competency hearing (Claim VIII). Comer’s compromised
physical and mental condition during sentencing is readily
apparent from the record that was presented to the Arizona
Supreme Court. That record included a transcript of the sen-
tencing 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 sentenc-
ing, demonstrating Comer’s condition, was also before the
Arizona Supreme Court. Furthermore, the record included a
transcript of the post-sentencing competency hearing, held the
next day, in which Comer’s competency during sentencing
was explicitly discussed. 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 (1966); Drope v. Missouri, 420 U.S. 162,
172 (1975). The Arizona Supreme Court’s decision not to
address this constitutional issue during its independent 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,
11152                 COMER v. SCHRIRO
and Fourteenth Amendment 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 prosecution,
including at capital sentencing hearings, see Gardner v. Flor-
ida, 430 U.S. 349 (1977), and hearings 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 Arizona Court again impliedly rejected any error.

   Third, Comer claims his sentencing while unclothed and
semi-conscious violated the due process clause of the Four-
teenth Amendment (Claims X and XI). The egregious circum-
stances 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 commenting on
this issue, the Arizona Court implicitly signaled its rejection
of any error.

   [19] 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 read-
ily apparent from the record nor as clearly encompassed
within Arizona’s independent review. Thus, we do not find
them to be impliedly exhausted. We may proceed to decide
the merits of Comer’s impliedly exhausted claims without
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 fundamental
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 funda-
mental error review if it was explicitly noted in the briefs
presented to the state appellate court, or the state court men-
                      COMER v. SCHRIRO                  11153
tions 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 District Court found were actu-
ally 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 coun-
sel and the four impliedly exhausted claims we have dis-
cussed in this section.
COMER v. SCHRIRO           11155
                   Volume 2 of 2
11156                          COMER v. SCHRIRO
    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. Specifically, Comer claims that: (1)
the trial court’s failure to sever the Pritchard homicide count
from the Andrews and Brough kidnapping/robbery/sexual
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 petition. 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 improperly joined
the Pritchard homicide count to the Andrews and Brough
kidnapping/robbery/sexual assault counts. Comer contends
that, because the evidence with regard to the Andrews and
Brough counts was stronger and more inflammatory than the
evidence relating to the first-degree murder count, he was
prejudiced by the joinder of the offenses since the inflamma-
tory evidence had a substantial and injurious impact on the
jury’s determination regarding the first-degree murder count.

  [20] “[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
                       COMER v. SCHRIRO                   11157
habeas relief unless the joinder “actually render[ed] petition-
er’s state trial fundamentally unfair and hence, violative of
due process.” 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 joinder had a substantial
and injurious effect or influence in determining the jury’s ver-
dict.” Davis, 384 F.3d at 638 (internal quotation marks and
citation omitted). We conclude that the joinder of the homi-
cide and kidnapping/robbery/sexual assault counts did not
render Comer’s trial fundamentally unfair.

   Comer contends that the circumstances of his trial are anal-
ogous 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 prejudice 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 regarding 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
properly joined because evidence pertaining to both sets of
offenses demonstrated that Comer was engaged in a common
scheme or plan to obtain money and supplies. Comer, 799
P.2d at 338-39 (Ariz. 1990). Thus, as Comer acknowledges,
at least some of the evidence presented at his trial was admis-
sible as to all of the counts. This cross-admissibility of evi-
dence 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 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
11158                  COMER v. SCHRIRO
when counts were not properly joined under state law, the
misjoinder was not prejudicial due to a limiting instruction
and strong evidence of guilt as to each charge).

   Second, the improperly joined counts in Bean consisted 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 specific 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 general
instruction that each count must be decided separately. 163
F.3d at 1083. In contrast, Comer’s jury was explicitly
instructed “to give separate consideration 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 prejudice. See Davis, 384
F.3d at 639 (“[A]ny prejudice was further limited through an
instruction directing the jury to consider each count separate-
ly.”).

   Finally, the evidence relating to Comer’s guilt of the Prit-
chard homicide count was strong, as was the evidence of the
kidnapping/robbery/sexual assault counts. In Bean, the prose-
cution 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 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 admit-
ted 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 premeditation neces-
sary for a finding of first degree murder. The prosecution
                       COMER v. SCHRIRO                    11159
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 Pritchard in the throat after the shooting.
Comer counters 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 credibility 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 par-
ties agree that the evidence as to Comer’s guilt with regard to
the kidnapping/robbery/sexual assault counts was overwhelm-
ing.

   [21] Given the strength of the evidence against Comer on
all counts, the cross-admissibility of that evidence, and the
trial court’s limiting instruction, we hold that Comer’s trial
was not rendered fundamentally unfair by joinder of the
counts. See, e.g., Davis, 384 F.3d at 638-39 (holding no preju-
dice to defendant 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 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 vio-
lated when the trial court refused to sever the Pritchard homi-
cide count from the Andrews and Brough counts.

   Comer is correct in asserting that he has a due process right
to testify in his own defense. See Rock v. Arkansas, 483 U.S.
11160                  COMER v. SCHRIRO
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 bene-
fit the defendant”). A defendant, therefore, retains the ability
to decide strategically whether to testify and thus revealing
damaging information. See Rock, 483 U.S. at 53.

   [22] However, joinder of counts may unduly affect a defen-
dant’s choice whether to testify. See, e.g., United States v.
Balzano, 916 F.2d 1273, 1283 (7th Cir. 1990). To obtain sev-
erance because of this prejudicial 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 severance based on his Fifth, Sixth, and
Fourteenth Amendment right to testify.

   [23] Comer claims that, had the counts not been joined, he
would have testified to the circumstances surrounding 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 specifically
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
innocence and unparticularized claim as to witness credibility
was not specific enough to mandate severance); United States
v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998) (requiring
specific examples of the exculpatory testimony the defendant
would give). Before the trial court, Comer’s counsel asserted
                       COMER v. SCHRIRO                   11161
that Comer would testify that the shooting was unintentional
and give details of the surrounding circumstances. Comer
would also have refuted Willis’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 regard-
ing the circumstances Comer would have testified to, we find
this proffered testimony is not specific enough to mandate
severance.

   Additionally, Comer did not have a strong need to refrain
from testifying as to the Jones and Smith counts. “[A] defen-
dant fails to make a convincing demonstration of a strong
need to refrain from testifying on particular counts when[,]
[w]ithout [the defendant’s] testimony, the government offered
sufficient evidence to support the jury’s verdict on these
counts.” Balzano, 916 F.2d at 1283 (internal quotation marks
omitted); accord United States v. Freeland, 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 overwhelm-
ing. Thus, Comer lacked a strong need to refrain from testify-
ing to these counts.

   [24] 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 mis-
conduct 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 epithets during closing argument. Comer
claims the remarks were both improper and impermissibly
appealed to the passion and prejudice of the jury.
11162                  COMER v. SCHRIRO
   [25] As all of the other courts before us have done, we con-
demn the prosecutor’s remarks. At various times throughout
closing argument, the prosecutor repeatedly 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 fundamentally
unfair. “[I]t is not enough that the prosecutors’ remarks were
undesirable or even universally condemned.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotation
marks omitted). Rather, we must decide “whether the prose-
cutors’ 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 stan-
dard of review for such a claim on writ of habeas corpus is
the narrow one of due process, and not the broad exercise of
supervisory 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 prosecutor’s dehu-
manizing epithets rendered his trial fundamentally unfair. The
prosecutor’s remarks regarding Comer are similar to those
uttered by the prosecutors in Darden. There, the prosecutors
called the defendant an “animal” and asserted that he should
be kept on a leash. 477 U.S. at 180 n.11 & n.12. The prosecu-
tors 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 prosecu-
tors 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 defendant a fundamen-
tally fair trial for several reasons, including: the prosecutor
did not manipulate or misstate 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
                       COMER v. SCHRIRO                    11163
be made on the basis of the evidence alone” and “the argu-
ments of counsel were not evidence”; strong evidence of the
defendant’s guilt had been presented during the trial; and
defense counsel 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 manipu-
late 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 evi-
dence defined as witness testimony and exhibits. The jurors
were specifically admonished that the lawyers’ statements
during opening and closing argument were not evidence. Fur-
thermore, they were instructed not to be “influenced by sym-
pathy 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
instructions 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 defendant); 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 evidence,
and the strong proof of the defendant’s guilt).

  Additionally, as discussed earlier, there was strong evi-
dence 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 prose-
cutor only once referred to Comer as a “monster” when dis-
cussing the murder count. All of the prosecutor’s other
objectionable remarks were made during his discussion of the
Andrews and Brough counts, on which there was overwhelm-
11164                 COMER v. SCHRIRO
ing evidence of Comer’s guilt. There was also strong evi-
dence, including eyewitness testimony, regarding Comer’s
premeditation. Finally, any emotional impact that the prosecu-
tor’s statements may have had on the jury likely only repli-
cated 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 defen-
dant] did to [the victim], there is no reasonable probability
that the prosecutor’s emotional appeal affected the verdict.”).

   [26] 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 defen-
dant a “monster,” “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 prosecutor 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 prej-
udice of the jury. Comer cites Northern 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 Mendiola, how-
ever, “we emphasized . . . that the comment was prejudicial
only in view of the weakness of the prosecution’s case, the
prosecutor’s disingenuity as to the whereabouts of the missing
weapon, and the Government’s resort to coercion to obtain
evidence.” United States v. Hinton, 31 F.3d 817, 825 (9th Cir.
1994) (explaining our holding in Mendiola). Because none of
these factors are present here, we hold that the prosecutor’s
remarks did not render Comer’s trial fundamentally unfair.
                             COMER v. SCHRIRO             11165
         c.    Refusal to Strike Venirepersons

   [27] 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 questioned 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 unconstitutional 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 constitu-
tional harm.

         d.     Conclusion

   [28] 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

   Pursuant to our holding that several of Comer’s penalty-
phase claims were impliedly exhausted by Arizona’s indepen-
dent review of Comer’s capital case, we have before us five
claims of error from Comer’s sentencing hearing. Comer con-
tends that: (1) his sentencing counsel rendered ineffective
assistance; (2) he was constitutionally entitled to a hearing to
determine his competency at the time of sentencing; (3) the
conduct of a post-sentence competency hearing in his absence
violated his Sixth, Eighth, and Fourteenth Amendment rights;
(4) sentencing him while unclothed and semi-conscious
11166                  COMER v. SCHRIRO
impaired his right to allocution; and (5) sentencing him for a
capital crime while unclothed violated the Fourteenth Amend-
ment.

   As to Comer’s fifth claim, we hold that his Fourteenth
Amendment due process rights were violated by the circum-
stances 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

   [29] 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 con-
viction) in order to ascertain whether they offend those can-
ons 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. Califor-
nia, 342 U.S. 165, 169 (1952) (citation omitted). Conduct of
state officials that “shocks the conscience” will not be toler-
ated. Id. at 172.

   Subsequent decisions have given content to this broad pro-
tection. 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. Mis-
souri, 544 U.S. 622 (2005) (holding that the visible shackling
of a defendant before a jury during the guilt phase or penalty
phase of a capital trial violates due process absent case-
specific security justifications for the shackling); United
                       COMER v. SCHRIRO                   11167
States v. Howard, 429 F.3d 843 (9th Cir. 2005) (holding that
the shackling of pretrial detainees during their first appear-
ance before a magistrate 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 prejudicial and
may only occur if compelling circumstances justify the need
for shackling to maintain order in the courtroom).

   Five basic considerations have led courts to conclude that
unjustified shackling is a due process violation. First, shack-
ling suggests to the trier of fact that the defendant is danger-
ous, which adversely and impermissibly affects perception of
the defendant in a way that undermines the trier’s “ability to
weigh accurately all relevant considerations — considerations
that are often unquantifiable and elusive — when it deter-
mines whether a defendant deserves death.” Deck, 544 U.S.
at 633; see also Duckett, 67 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 “dignity 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 punishment.” Deck, 544 U.S. at 631.
Depriving a courtroom of such dignity undermines public
confidence in judicial proceedings. Id.

   [30] Third, shackles greatly reduce a defendant’s ability 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, physi-
cal restraints may also confuse and embarrass the defendant,
impairing his mental faculties. Howard, 429 F.3d at 851;
11168                  COMER v. SCHRIRO
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.

   [31] The foregoing reasons apply with even greater force to
the circumstances of Comer’s sentencing. Comer was pres-
ented to the sentencing court not only in shackles, but nearly
naked, with only a blanket 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 and the
public his numerous and graphic tattoos, which cover most of
his body. And the responses he mustered to the court’s ques-
tions were cursory at best.

   [32] This presentation of Comer — shackled, beaten, and
tattooed — certainly increased the perception of his danger-
ousness. If Comer had been sentenced before a jury, these cir-
cumstances 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 unquantifi-
able 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.

   [33] 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 mitigat-
ing evidence was presented. 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 v. SCHRIRO                   11169
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 circumstances of this meeting, far from humanizing
Comer, deprived him of his dignity.

   Furthermore, the appearance of this naked, bleeding, shack-
led man was a severe affront to the dignity 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 circumstances. Even inmates in solitary confinement
have a dignitary interest in being clothed. See, e.g., Maxwell
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.

   [34] Comer’s condition during sentencing also diminished
his ability to communicate with his counsel. Not only were
his hands bound, but as the jail psychiatrist 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 physi-
cal pain from his visible lacerations.

   [35] As the foregoing demonstrates, the due process con-
siderations that militate against the routine use of shackles
during the trial and sentencing of defendants apply with even
greater force to the circumstances 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 circum-
11170                   COMER v. SCHRIRO
stances such as security concerns. Deck, 544 U.S. at 633;
Howard, 429 F.3d at 851. We cannot conceive of any reason-
able justification, 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 shackled, nearly naked, bleeding, and
exhausted.

   [36] Additionally, the circumstances of Comer’s sentencing
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 process 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 contribute to the sentence he
received. For these reasons, Comer is entitled to a new sen-
tencing 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
proceedings within a reasonable amount of time to be deter-
mined by the District Court.

 AFFIRMED in part; REVERSED in part and
REMANDED.
                         COMER v. SCHRIRO                       11171
RYMER, Circuit Judge, concurring in part and dissenting in
part:

  We need to — and may only — decide one question:
whether death row inmate Robert Comer is competent to
withdraw his appeal from denial of his petition for writ of
habeas corpus and has done so knowingly and voluntarily. All
of us agree that the answer to that question is yes, based on
what the district court found following a Rees1 hearing that we
ordered. This means that this case is over, because Comer’s
waiver of further review of his habeas claims leaves no live
controversy remaining between Comer and the State of Ari-
zona.

   Nevertheless, the majority reverses on the merits and orders
the writ to issue. In the doing, it thumbs this court’s nose at
the United States Supreme Court, which made clear in Gil-
more v. Utah, 429 U.S. 1012 (1976), that courts lack jurisdic-
tion to consider unresolved constitutional issues underlying a
death sentence when the defendant competently and voluntar-
ily waives his right to pursue an appeal; at the district court,
which went all out to conduct a comprehensive evidentiary
hearing and issued an extraordinarily detailed and comprehen-
sive, 90-page opinion setting forth its findings and conclu-
sions on the competence and voluntariness of Comer’s
decision; and at Comer himself, who has repeatedly, compe-
tently and intelligently tried for five years to choose what he
wants to do.

  I dissent from this raw imposition of judicial power.

                                   I

  Comer filed a petition for habeas relief and appointment of
  1
    Rees v. Peyton, 384 U.S. 312 (1966) (per curiam) (remanding for the
district court to determine mental competence of a death-row inmate who
sought to withdraw petition for certiorari).
11172                  COMER v. SCHRIRO
counsel on July 19, 1994. Counsel were appointed and even-
tually the district court determined that he was not entitled to
relief but granted a certificate of probable cause on March 3,
1998. A notice of appeal was filed, but Comer then sent sev-
eral letters to the Arizona Attorney General, the Arizona trial
judge who had presided over his trial and sentenced him, and
the Arizona Supreme Court indicating that he had not autho-
rized his habeas counsel to file the appeal with this court and
that he wished to terminate their representation. Acting on
these communications, the Attorney General filed a motion to
dismiss Comer’s appeal. Comer also filed a pro se motion to
withdraw his appeal and to terminate habeas counsel’s repre-
sentation. Rather than rule on these motions on the existing
record, we remanded to the district court so that it could hold
an evidentiary hearing to determine whether Comer was com-
petent to terminate counsel and to forego further legal review,
and to determine whether his decision was voluntary. Comer
v. Stewart, 215 F.3d 910 (9th Cir. 2000) (Comer I).

   The district court appointed special counsel for Comer;
appointed an independent expert (Dr. Sally Johnson, Asso-
ciate Warden Medical/Chief Psychiatrist of the Health Ser-
vices Division of the Federal Correctional Complex in Butner,
North Carolina), as well as an expert requested by habeas
counsel (Dr. Terry Kupers, a psychiatrist in private practice)
to evaluate the competence and voluntariness of Comer’s
decision; and toured the prison and inspected the cell where
Comer is now housed in addition to considering the condi-
tions of his confinement from day one. It held a three-day evi-
dentiary hearing at which Comer, the experts, and two prison
officials testified. The district court rendered its decision
October 16, 2002, finding under Supreme Court and Ninth
Circuit law, which it meticulously surveyed, that Comer was
competent and that his decision to withdraw his appeal was
voluntary.

  The court found that Dr. Johnson’s evaluation of Comer
was better supported by the evidence in the record and more
                       COMER v. SCHRIRO                    11173
in accord with accepted psychiatric methods than Dr. Kuper’s.
Based on Johnson’s opinion, the district court found that
Comer does not suffer from depression, post-traumatic stress
disorder, or SHU Syndrome. The court concluded that Comer
is cognizant of the merits of his appeal, of its prospects for
success, and of his ability to change his mind about withdraw-
ing the appeal at any time before this court rules. It found that
Comer’s decision to withdraw his appeal and submit to execu-
tion is rational and based principally on his feelings of
remorse for his crimes and his belief that he deserves the pun-
ishment society has imposed upon him (despite his personal
opposition to the death penalty). The district court found that
Comer also places great weight on the ability to make this
choice on his own because it is his choice. Finally, the court
concluded that the conditions of Comer’s confinement, while
undeniably harsh, were not so harsh that he had been forced
to abandon a natural desire to live.

   Habeas counsel appealed this decision. Sua sponte, the
majority stayed further action pending the outcome of en banc
proceedings in Summerlin v. Stewart, 267 F.3d 926 (9th Cir.
2001), as to whether Ring v. Arizona, 536 U.S. 584 (2002),
which invalidated Arizona’s scheme of judge-sentencing in
capital cases, was retroactive on collateral review. Comer v.
Stewart, 312 F.3d 1157 (9th Cir. 2002) (Comer II). Once the
Supreme Court definitively ruled that Ring does not apply
retroactively to habeas petitions, Schriro v. Summerlin, 542
U.S. 348 (2004), rev’g Summerlin v. Stewart, 341 F.3d 1082
(9th Cir. 2003) (en banc), the motions to dismiss were ready
for resolution. However, the majority, again sua sponte,
ordered briefing on whether Comer can waive his pending
habeas appeal if the district court erred in denying his original
habeas petition and his constitutional rights were in fact vio-
lated during his state trial. Order, January 20, 2005. Habeas
counsel, Comer’s special counsel, and the state complied and
we heard oral argument May 17, 2005.

  We must now answer the question on which we reserved
judgment on June 6, 2000.
11174                 COMER v. SCHRIRO
                              II

                              A

   Habeas counsel argue that the district court improperly
credited Johnson’s opinions over those of Kupers. However,
the court’s credibility determination is well supported in the
record as Kupers is not trained as a forensic psychiatrist, has
not worked in a correctional setting, and conducted a more
limited examination of Comer than Johnson. They also fault
the court’s finding that Comer did not suffer from depression,
relying mainly on Comer’s writings over the years. While
some of Comer’s letters may exhibit some of the symptoms
of depression, others do not. In any event, the findings are
supported by Johnson’s report, Comer’s own testimony, and
Judge Silver’s observations of Comer in court. The court’s
findings on post-traumatic stress disorder and SHU Syndrome
turn on the absence of depression and are not clearly errone-
ous for the same reason its conclusion that Comer does not
suffer depression is not.

   Regardless, the court found that Comer has a rational
understanding of his legal options. This plainly appears from
the court’s colloquy with Comer during the evidentiary hear-
ing. He understands his claims on appeal, their chances of
success, the consequences and next steps if his appeal were to
succeed, and what he would do in those circumstances.
Kupers is also of the opinion that Comer has a rational intel-
lectual understanding of his legal options.

   Habeas counsel contend that Comer is nonetheless not
competent to withdraw his appeal because his alleged mental
illnesses prevent him from making a rational choice among
the options. They rely upon Kupers’s opinion to posit that
depression leads to suicidal ideation which causes Comer to
want to drop his appeal and submit to execution. However,
there is no evidence that Comer has ever tried to commit sui-
cide, despite opportunities to do so, or is suicidal. More
                            COMER v. SCHRIRO                          11175
importantly, much the same argument was made and rejected
in Dennis ex rel. Butko v. Budge, 378 F.3d 880, 892-93 (9th
Cir. 2004). To say that an inmate who chooses not to fight
execution does so because he has lost hope and wants to die
is circular. Also, to say that an inmate who chooses not to
fight execution is making an irrational choice misses the point
of Rees, which is not concerned with the rationality of the
decision but with the inmate’s “capacity to appreciate his
options and make a rational choice among them.” Dennis, 378
F.3d at 890.2 There can be no serious question based upon the
record and the district court’s findings that Comer does not
have any mental problem that causes him to be unable to
understand his options or to lack the capacity to make a ratio-
nal choice among them.
  2
    Rees articulated the competence question for the district court to deter-
mine as “whether [Rees] has capacity to appreciate his position and make
a rational choice with respect to continuing or abandoning further litiga-
tion or on the other hand whether he is suffering from a mental disease,
disorder, or defect which may substantially affect his capacity in the prem-
ises.” 384 U.S. at 314. The Court later confirmed that the phrase “ ‘ratio-
nal choice’ ” in Rees means nothing different from “ ‘rational
understanding.’ ” Godinez v. Moran, 509 U.S. 389, 398 n.9 (1993); see
also Whitmore v. Arkansas, 495 U.S. 149, 166 (1990) (asking in “next
friend” case whether the prisoner has capacity to have a rational under-
standing with respect to continuing or abandoning further litigation). We
have adhered to this approach. See, e.g., Dennis, 378 F.3d at 890; see also
Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F.2d
1050, 1057 (8th Cir. 1987) (recognizing inquiry as whether decision of
prisoner under sentence of death to waive post-conviction remedies is the
product of a rational thought process and rejecting argument that waiver
should not be allowed if there is any possibility that the decision is a prod-
uct of mental disease, disorder or defect); cf. Rumbaugh v. Procunier, 753
F.2d 395, 398-99 (5th Cir. 1985) (breaking the Rees standard into three
questions: (1) is the person suffering from a mental disease or defect; (2)
if so, does that disease or defect prevent him from understanding his legal
position and the options available; (3) if not, does that disease or defect
nevertheless prevent him from making a rational choice among his options
— and noting that if the answer to the first question is no, the court need
go no further because the person is competent).
11176                  COMER v. SCHRIRO
                               B

   In addition to determining whether Comer’s decision to
withdraw his appeal was competent, we specifically instructed
the district court to determine “whether Mr. Comer’s condi-
tions of confinement constitute punishment so harsh that he
has been forced to abandon a natural desire to live.” Comer
I, 215 F.3d at 918. “A waiver is voluntary if, under the totality
of the circumstances, it was the product of a free and deliber-
ate choice rather than coercion or improper inducement.” Id.
at 917 (quoting United States v. Doe, 155 F.3d 1070, 1074
(9th Cir. 1998)). Habeas counsel challenge the district court’s
ruling that the conditions of Comer’s confinement did not
coerce his decision on several grounds, none of which is per-
suasive.

   First, they point out that Comer got a radio and television
within six months of the evidentiary hearing and speculate
that those privileges will be taken away once this litigation
ends. There is no evidence of this, and Comer himself attri-
butes these improvements to improvement in his own behav-
ior. Next, habeas counsel contend that remorse cannot be the
true reason for Comer’s decision because he opposes the
death penalty. They also assert that it is of recent vintage,
therefore must be a fabrication. However, in response to the
district court’s questions, Comer stated that his views have
changed as he has matured, and he reconciled his personal
opposition to the death penalty with acceptance of his punish-
ment as appropriate for the crimes he committed. The district
court’s exploration of the conditions of Comer’s confinement
and their effect on his decision was exhaustive. It is impossi-
ble to be clearly and firmly convinced that its findings are
erroneous.

   In sum, Comer is competent to withdraw his appeal in that
he does not suffer from a mental disease, disorder, or defect
but even if he does, it does not impair his capacity to under-
stand his legal options and to make a rational choice to forego
                            COMER v. SCHRIRO                         11177
further legal proceedings. Further, his decision to withdraw
his appeal is voluntary because it is the product of a free and
deliberate choice and an unconstrained will, uncoerced by the
conditions of his confinement in SMU II. As Comer has com-
petently and voluntarily asked to withdraw his appeal and ter-
minate habeas counsel’s representation, he is entitled to do so.
Accordingly, the Attorney General’s, and Comer’s, motions
to dismiss Comer’s appeal of the denial of his habeas petition
by the district court should be granted.

                                    III

   Having determined that Comer is competent to decide to
withdraw his habeas appeal and that his decision to do so is
voluntary, we lack jurisdiction to take any action with respect
to his pending appeal other than to dismiss it. Habeas counsel
acknowledge in their brief that “the order entered by a major-
ity of the Supreme Court in Gilmore v. Utah, 429 U.S. 1012
(1976), disempowers this court to intervene and stop such an
execution if the person who is to be executed validly waves
[sic] his right to a habeas appeal.” Regardless, they suggest,
Comer’s waiver wasn’t “knowing” because it could not be
“knowing” until it is known what this court will do with his
appeal. They surmise from the majority’s January 20, 2005
order, which asked counsel to assume that the district court
erred in denying Comer’s original habeas petition and that his
constitutional rights were in fact violated during his state trial,
that this court is of the view that Comer should have a new
trial.3 If so, they propose that the way to get a proper waiver
of Comer’s federal habeas appeal is for this court first to
announce its intention to reverse the district court on its reso-
  3
    I objected to the majority’s January 20, 2005 order precisely because
its phrasing appeared to telegraph a particular result. As it turned out,
habeas counsel interpreted the order as indicating a “preliminary consider-
ation of the merits” that “left this Court of the view that, if Mr. Comer
waives his appeal, he will be waiving the right to a reversal of the District
Court’s judgment and to a ruling entitling him to a new trial.”
11178                      COMER v. SCHRIRO
lution of Comer’s habeas petition and then to inquire of
Comer whether — with knowledge of that prospect — he
elects to relinquish his right to reversal and a new trial.4

   Of course it cannot be gainsaid that if Comer were to know
how his appeal would come out, he would be in a position of
superior knowledge to that which he now has. So would every
defendant who waives his constitutional right to a trial by
entering a plea of guilty be in a position of superior knowl-
edge if he knew in advance precisely how his trial would turn
out. Likewise every defendant who waives his right to be tried
by a jury would know more if he knew before deciding to opt
for a bench trial how he would fare in front of each trier of
fact. There is no question that waiver of any constitutional
right, whether to trial, or direct appeal, to be tried by a jury,
or to be represented by counsel, must be competently and
knowingly, voluntarily, and intelligently made; but no case
has ever suggested that a waiver cannot be knowing if it is not
informed by hindsight. Every defendant has the right to waive
a right so long as the court is satisfied that he is competent
and uncoerced and has taken the relevant considerations into
account. That is clearly the case here.

   Comer was advised by his counsel of the prospects for
reversal on appeal from denial of his habeas petition, and his
testimony at the evidentiary hearing reveals that he was aware
of the prospects and took the probability of reversal into
account in reaching his decision to withdraw his appeal. He
left no doubt that he understood how good a case habeas
counsel thought he had; indeed, Comer testified, they believed
his appeal “likely will be successful as to his death sentence”
and “I think they’re right.” He recognizes that even if his con-
  4
   Counsel do not comment on whether a truly knowing decision can be
made after the panel’s opinion comes down, or whether it can only be after
the full court acts on a petition for rehearing en banc, or whether it needs
to wait until after the Supreme Court has ruled on a petition for writ of
certiorari.
                        COMER v. SCHRIRO                   11179
viction for murder is not overturned, he might get a different
sentence. He displays considerable insight into the issues on
appeal and how they are apt to play out. And he has thought
through how he would respond in the event reversal were to
occur. In short, as a matter of fact, Comer’s decision is fully
informed by an understanding of the risks, benefits and conse-
quences of pursuing the appeal. Knowing the odds, Comer
has repeatedly adhered to his choice including, as his special
counsel represented, as recently as the day before argument in
our court.

   No one is entitled to a preview, let alone an advisory opin-
ion, from the court. Habeas counsel appear to acknowledge
this but to argue otherwise, believing they “must assume from
the [c]ourt’s questions that its preliminary examination of the
case has left it confronted with [the] stark reality [that this is
not simply a case involving a death sentence but, ex hypo-
thesi, a case involving an unconstitutional death sentence].”
“Under these circumstances,” they submit, “it is not forbidden
to adhere to that view or to publish it simply because Mr.
Comer may then make a choice to relinquish the consequence
and retroactively moot the constitutional issues.” I disagree on
many levels.

   Nothing should ever be assumed about the outcome of any
case from questions posed by a judge. Questions can be asked
for a host of reasons having nothing to do with any predeter-
mined view of the merits. But even if the questions posed in
this case did signal where those who propounded them were
coming from and might go, habeas counsel, special counsel,
and Comer were well aware of the queries and their implica-
tions, yet Comer has persisted in his decision to withdraw his
habeas appeal. Beyond this, the decision that habeas counsel
contemplates is either advisory, in which case it is meaning-
less, or it is for real, in which case it cannot be ignored. How
Comer could “withdraw” from a final judgment ordering the
writ to issue escapes me. Finally, and most importantly, noth-
ing that the majority, or I, might state or imply on the merits
11180                  COMER v. SCHRIRO
can matter because we have no jurisdiction to say anything at
all.

   Gilmore makes this clear. There a “next friend” of Gary
Gilmore, a convicted murderer who had been sentenced to
death, filed an application for stay of execution in the
Supreme Court. The Court noted that she would have had
standing only if Gilmore, who had waived his right to appeal
under state law, was incompetent to do so. The record con-
vinced the majority that he had knowingly and intelligently
done just that. 429 U.S. at 1013. As Chief Justice Burger
observed in an opinion concurring in the Court’s order, Gil-
more had full knowledge of his right to appeal, including that
his attorneys believed there were substantial grounds for
appeal, that the constitutionality of Utah’s death penalty stat-
ute had not yet been reviewed, and that in his counsels’ view
there was a chance that it would eventually be held unconsti-
tutional. The trial court advised him of his rights. “Gilmore
stated that he did not ‘care to languish in prison for another
day,’ that the decision was his own, and that he had not made
the decision as a result of the influence of drugs or alcohol or
as a result of the way he was treated in prison.” Id. at 1015
n.4 (Burger, C.J., concurring). He also told the Utah Supreme
Court that he opposed any appeal and wished to withdraw the
appeal previously filed without his consent. With the record
establishing a knowing and intelligent waiver of Gilmore’s
right to seek appellate review, the Chief Justice concluded
that the Court was without jurisdiction to entertain the “next
friend” application because there was no present dispute
between Gilmore and the State of Utah. Id. at 1016 (Burger,
C.J., concurring). Justice White dissented on the footing that
“the consent of a convicted defendant in a criminal case does
not privilege a State to impose a punishment otherwise forbid-
den by the Eighth Amendment.” Id. at 1018 (White, J., dis-
senting). He saw no jurisdictional barrier to addressing the
merits of the “next friend” petition because, in his view, Gil-
more could not waive resolution of the serious question con-
cerning the constitutional validity of his death sentence.
                            COMER v. SCHRIRO                          11181
However forceful Justice White’s views may be, they were in
dissent. We are obliged to follow the Court’s order which, as
habeas counsel puts it, “disempowers this court to intervene
and stop such an execution if the person who is to be executed
validly waves [sic] his right to a habeas appeal.”5

   That Comer is seeking to withdraw his habeas appeal him-
self — rather than a next friend seeking in his stead to stay
execution — is of no moment. Although the jurisdictional
basis for addressing the issue is different because the district
court and we have jurisdiction over Comer’s habeas petition
(until it is withdrawn), whereas a “next friend” must establish
standing to bring the action, the bottom line inquiry is the
same: has the defendant competently decided to forego further
relief in his own behalf. See, e.g., Rees, 384 U.S. at 314; Whit-
more, 495 U.S. at 165-66; Dennis, 378 F.3d at 888-89.

  Nor is it consequential that Comer originally appeared to
consent to habeas counsel’s representation and to the filing of
  5
    See also Evans v. Bennett, 440 U.S. 1301 (1979) (in chambers opinion
by Rehnquist, Circuit Justice, referring “next friend” application to the full
court in light of the dissents in Gilmore but the Court denying it); Lenhard
v. Wolff, 444 U.S. 807 (1979) (same, over dissent by Justice Marshall
asserting in accordance with the Gilmore dissent that the consent of a con-
victed defendant in a criminal case does not privilege the state to impose
an unconstitutional punishment and that the defendant has no right to
“state-administered suicide,” id. at 815); Hammett v. Texas, 448 U.S. 725
(1980) (per curiam) (granting motion of death-row inmate to withdraw
petition for a writ of certiorari in the absence of any question about his
competence, over dissent reflecting views of the Gilmore and Lenhard dis-
sents, id. at 732 (Marshall, J., dissenting)).
   Circuit cases considering analogous problems are consistent with this
rule. See, e.g., United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir.
March 26, 2005) (holding that once an appeal is voluntarily dismissed,
appellate courts no longer have jurisdiction over the merits of the appeal,
and citing law to the same effect in the Fifth, Sixth and Seventh Circuits);
United States v. Jeronimo, 398 F.3d 1149, 1152-53 (9th Cir. 2005) (recog-
nizing that appellate court lacks jurisdiction to consider merits of an
appeal when there is a valid and enforceable waiver of the right to appeal).
11182                  COMER v. SCHRIRO
papers in this court. Comer has moved to discharge habeas
counsel, and the district court found that he was competent to
terminate their representation and that his decision to do so
was voluntary. He explained to the district court that even
though it looked inconsistent for him to file a notice of appeal
that he sought to withdraw, if he had it to do over again,
knowing what he now knows, he would not have appealed.
Comer said that he signed the form at the time for his lawyer,
not because he personally wanted to appeal. Upholding
Comer’s decision to terminate habeas counsel, and to with-
draw the appeal even though he had signed onto filing it, was
well within the district court’s discretion. In any event,
whether or not habeas counsel are now terminated (as I
believe they are) and are effectively in the position of a “next
friend,” Comer is not precluded from withdrawing his habeas
appeal simply on account of the fact that he had originally
consented to counsel’s filing it. Otherwise, Rees would not
have come out as it did. There, the petition for certiorari was
filed with the defendant’s consent but he thereafter directed
counsel to withdraw it and to forego further legal proceedings.

   In short, we have no right to reach the merits. We must
affirm the district court’s ruling. And I would.
