9th Cir Upholds Waiver of Death Challenge

The Ninth Circuit en banc reversed a panel decision granting habeas and requiring the state to begin new sentencing proceedings, because when the petitioner was sentenced he was slumped over in a wheelchair, shackled, bleeding, and nearly naked -- a violation of his due process rights. The en banc court finds valid the habeas petitioner's waiver further proceedings, including challenging the death penalty. Comer v. Schriro, No. 98-99003, 9899003withgraphic.pdf 9th Cir. link (9th Cir. March 15, 2007)(en banc)(per curiam, with Judge Paez concurring and Judge Pregerson dissenting).

In his dissent, Judge Pregerson quotes all of the original panel decision (Ferguson, J.)(see earlier post). He concludes with a picture of Comer at his sentencing hearing and writes:

Nothing in this opinion requires the Arizona court to conduct a new penalty phase. The due process violation occurred after the guilt phase of the trial. The due process violation occurred after the penalty phase of the trial. The due process violation occurred at the sentencing hearing held by the Arizona
trial judge who imposed the penalty of death on a man
who was naked, bleeding, shackled, exhausted and semiconscious.

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

Id. at 3181.