Ninth Circuit Holds that Eighth Amendment Bars State Death Row Inmate From Voluntarily Waiving Right to Appeal Denial of Habeas Relief

In Comer v. Schriro (a case that is almost certain to see further appellate proceedings), the Ninth Circuit held that it would be an Eighth Amendment violation for a federal appeals court to permit a habeas petitioner on state death row to competently and voluntarily waive his right to appeal the denial of federal habeas corpus relief.  The petitioner Comer, who is on death row in Arizona, filed a federal habeas petition challenging his conviction and capital sentence.  The petition was denied, and Comer appealed.  Comer later decided that he wanted to be executed, and he and the state moved to dismiss the appeal.  The appellate court remanded to the district court to determine whether Comer's waiver of his appeal rights was competent and voluntary.  The district court found that it was, and the case returned to the Ninth Circuit.

The Ninth Circuit, on review of the district court's competency determination, agreed that petitioner was competent to waive his appeal rights.  Nonetheless, the court refused to dismiss the appeal because it concluded that, notwithstanding petitioner's waiver, dismissal would amount to a violation of the Eighth Amendment because it "would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims."  The court reasoned:

The defendant is not taking his own life, he is coopting the state's power of the state's capital punishment system to kill -- a power that must only be wielded in accordance with the Constitution'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 comandeered.  The right to die is not synonomous with the right to kill.

Reviewing the merits of petitioner's claims, the court concluded that the imposition of the death sentence violated petitioner's due process rights, because petitioner "was sentenced while shackled, nearly naked, bleeding, and exhausted."  It therefore granted the writ of habeas corpus.

Judge Rymer dissented, reasoning that petitioner's competent, voluntary waiver of his right to appeal the denial of his habeas petition ended the case, and that is was an abuse of the judicial power to grant relief under the circumstances.

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