Robert Charles COMER, Petitioner-Appellant, v. Terry L. STEWART, Director, Department of Corrections, Respondent-Appellee, 312 F.3d 1157

Order by Judge FERGUSON; Dissent by Judge RYMER ORDER FERGUSON, Circuit Judge: Robert Charles Comer is a prisoner of the State of Arizona who is subject to execution. A petition for writ of habeas corpus was filed in his behalf challenging the constitutionality of his state conviction and death sentence. The district court denied the petition and that decision was appealed to this court. The State of Arizona moved and Mr. Comer requested this court to dismiss the appeal. Mr. Comer states that he wants to be executed.

This court determined that the motion to dismiss be held in abeyance until the district court determined the validity of Mr. Comer’s purported decision to withdraw his appeal. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000) The district court in accordance with the mandate held an extensive evidentiary hearing. Before the court are the findings that Mr. Comer was competent and his decision to abandon his appeal was voluntary. In the meantime, the Supreme Court in Ring v. Arizona, 122 S.Ct. 2428 (2002) declared the Arizona Death Penalty Statute unconstitutional.

An en banc panel of this court has been drawn in Summerlin v. Stewart, 267 F.3d 926 to determine whether Ring should be applied retroactively on collateral review. It would serve no rational purpose for this court to engage in further litigation which may or may not prove to be decisive until such time as the retroactivity of the unconstitutional death penalty statute of Arizona has been conclusively determined.

One cannot surmise that if Ring must be applied retroactively that the State of Arizona would wish to execute a person whose death penalty was unconstitutionally imposed even though that person waived his right to life and even if that waiver was competently and intelligently made. It is therefore ordered that there be no further action taken with reference to the present appeal until the court has determined otherwise. This order shall be published because we believe that the public should be made aware of all matters pertaining to capital cases.