That's the rhetorical question Professor Douglas Berman asks on his blog Sentencing Law and Policy regarding yesterday's Ninth Circuit decision in Comer v. Schriro, No. 98-99003 (9th Cir. Sept. 12, 2006). Arizona death row inmate Robert Comer had decided to waive all his rights to appeal and be executed. He attempted to withdraw his long-pending habeas appeal from the Ninth Circuit. Not only did the Ninth Circuit refuse to allow him to withdraw it, but it ruled on the merits that Comer's sentencing was unconstitutional.
From the majority opinion (J. Pregerson, joined by J. Ferguson):
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 District Court’s denial of Comer's federal habeas petition.
We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.
From Judge Rymer's partial dissent:
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 Rees 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 Arizona.
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 Gilmore v. Utah, 429 U.S. 1012 (1976), that courts lack jurisdiction to consider unresolved constitutional issues underlying a death sentence when the defendant competently and voluntarily 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 comprehensive, 90-page opinion setting forth its findings and conclusions on the competence and voluntariness of Comer's decision; and at Comer himself, who has repeatedly, competently and intelligently tried for five years to choose what he wants to do.
I dissent from this raw imposition of judicial power.
This is sure to be controversial, and raise the ire of a lot of conservative commentators.