Robert Charles COMER, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, of Arizona Department of Corrections, Respondent-Appellee, 480 F.3d 960

PER CURIAM. After appealing the District Court’s denial of his 28 U.S.C. § 2254 petition, Petitioner Robert Comer (“Comer”) moved pro se to waive further federal proceedings, to terminate representation by his habeas counsel, and for dismissal of his appeal. A three-judge panel of our court remanded for the District Court to determine (1) whether Comer is competent to waive further proceedings and (2) whether he has chosen to do so voluntarily. See Comer v. Stewart, 215 F.3d 910 (9th Cir.2000).

After extensive proceedings, the District Court found that Comer is competent and his decision to waive further proceedings voluntary. See Comer v. Stewart, 230 F.Supp.2d 1016 (D.Ariz.2002). We review the District Court’s finding that Comer is competent for clear error. See Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir.2001) (per curiam). We assume, without deciding, that we review de novo the District Court’s determination that Comer’s decision to waive further proceedings is voluntary.

Accordingly, we must now determine (1) whether the District Court clearly erred in finding Comer competent to waive further proceedings and (2) whether Comer’s decision to waive further proceedings is voluntary. Comer’s waiver of proceedings has a long history which we briefly summarize below. A. Background 1. Comér’s Waivers at Trial and Sentencing Comer was charged with one count of first degree murder, three counts of armed robbery, two counts of aggravated assault, two counts of kidnaping, two counts of sexual abuse, and three counts of sexual assault.

After Comer waived his presence at his 1988 trial, the jury found him guilty on all counts. Comer also waived his presence at the April 8, 1988 mitigation/aggravation sentencing hearing where the parties presented evidence and argument regarding whether Comer should be sentenced to death or to life in prison. Nor did Comer want to appear at the April 11, 1988 hearing for the pronouncement of his sentence. Arizona state law, however, required that Comer be present when his sentence was pronounced. On the day of the pronouncement, Comer refused to voluntarily attend the hearing.

He barricaded his cell door with a mattress and threatened jail staff with a 10-inch shank. Jail correctional officers, in order to disarm Comer and extract him from his cell, sprayed Comer with water from a fire-hose with a 150-pound water pressure capacity. Even when being sprayed with the fire hose, Comer still fought back. A prison doctor, one day after the incident, testified that he was present at the jail on April 11, 1988 when Comer refused to come out of his cell. It was clear to the doctor that Comer was “willing and able” to do serious bodily harm to anyone who came within his reach.

The doctor considered it a potentially lethal situation, to both Mr. Comer as well as any of the guards there, that was handled in a “very humane manner with no one getting hurt.” The District Court later concluded that Comer gave officers no choice but to remove Comer from his cell by force. After finally disarming Comer, jail correctional officers brought Comer to the sentencing courtroom in a wheelchair, his head slumped to one side, apparently unclothed except for a blanket covering his lap, with a contusion on his forehead.

At the trial court's request, a medical doctor checked Comer to see if Comer was conscious and aware. In the doctor’s opinion, Comer was competent and conscious throughout all of the court proceedings on April 11,1988. The complete transcript of the April 11, 1988 pronouncement of sentence supports the doctor’s opinion that Comer understood the proceedings. Despite his physical appearance, Comer was responsive to the judge’s questions.

For example, when told by the prison doctor that he (Comer) was “in court in front of the Judge,” Comer responded “I know.” When the trial judge asked Comer, “I know you don’t want to be here today, is that right?,” Comer responded: “We made it though, huh?” When the Court replied “I guess we did but I’ll tell you — ,” Comer interjected “With a little help from my friends, man.” The trial court then explained to Comer: Arizona law requires that you have to be here at the time of sentencing and that is why you are here. [¶], I wish I could accommodate your wish not to be here but because the law says you have to be here.

That is why they had to bring you up. Do you understand that? Comer responded: “Yeah.” After the trial court read to Comer the counts of conviction, the trial court noted that Comer had already served 431 days in custody. When asked “Does, that number of days sound right to you, Mr. Comer?,” Comer replied: “Yeah.” The trial court then asked Comer whether there was “anything you want to say now before I pronounce sentence?” Comer responded: “Yeah. Are you going to sentence me for the piece, the tool?”.

The trial court replied “We are going to get into that later....” After Comer twice more stated he had nothing he wished to say before the pronouncement of his sentence, the trial court sentenced Comer to death for the murder and to aggravated, consecutive terms of imprisonment on the remaining counts, resulting in a sentence of imprisonment totaling 339 years. 2. Comer’s Claims Regarding His Appearance at Sentencing, Raised For First Time in Federal Habeas Proceedings, Were Later Expressly Ruled Procedurally Barred By State Courts In 1990, the Arizona Supreme Court affirmed Comer’s convictions and sentences.

In 1993, the Arizona Supreme Court denied Comer’s petition for review of the trial court’s 1992 denial of Comer’s first state post-conviction petition. Neither on direct appeal nor in his first state post-conviction petition did Comer claim that his constitutional rights were violated because his sentence was pronounced when he was nearly naked and slumped in a wheelchair. Comer raised his appearance at sentencing claims for the first time in his amended 28 U.S.C. § 2254 petition filed in 1995 in federal district court.

Specifically, Comer argued that (1) sentencing him while he was unclothed and semi-conscious violated the Fourteenth Amendment by impairing his Eighth Amendment right to allocution and (2) sentencing him while he was unclothed violated the Fourteenth Amendment. The District Court ruled that Comer’s appearance at sentencing claims were unexhausted and, after concluding that Comer’s unexhausted claims were now procedurally precluded by state court rule, denied Comer’s motion to hold his 2254 petition in abeyance pending exhaustion.

When Comer later returned to state court and raised his appearance at sentencing claims in his second state post-conviction petition, the state trial court in 1998 dismissed the entire second state post-conviction petition as procedurally barred and ruled specifically that Comer’s appearance at sentencing claims were procedurally barred. In 1999, the Arizona Supreme Court denied Comer’s petition for review. B.

Analysis If Comer is competent to waive further proceedings, then we need not, and indeed cannot, decide whether any of Comer’s claims have merit or are procedurally barred because there is no dispute remaining between the parties. See Gilmore v. Utah, 429 U.S. 1012, 1016-17, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (Burger, C.J., concurring) (once a competent petitioner waives further review, the court lacks jurisdiction to consider other issues no matter their merit); see also Massie ex rel.

Kroll, 244 F.3d at 1194 (whether petitioner’s “conviction and sentence meet federal constitutional standards is not now before us”). Thus, the only questions before us now are (1) whether the District Court clearly erred in determining that Comer is competent, see Massie ex rel. Kroll, 244 F.3d at 1194, and (2) whether Comer’s decision to waive further proceedings is voluntary. The District Court, after extensive proceedings and a meticulous analysis, found Comer competent. See Comer, 230 F.Supp.2d at 1034-63.

Because no party before this Court, including habeas counsel, disputes Comer’s competency, there is no issue before this Court as to Comer’s competency. Cf. Gilmore, 429 U.S. at 1016-17, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (Burger, C.J., concurring) (federal courts have jurisdiction only over “cases and controversies” and lack jurisdiction over questions undisputed by the parties). Habeas counsel argue instead that Comer’s decision to waive further proceedings is involuntary and constitutionally invalid due to harsh prison conditions.

A waiver of constitutional rights is voluntary if, under the totality of the circumstances, it was the product of a free and deliberate choice rather than coercion or improper inducement. Habeas counsel quote passages from Comer’s letters to counsel and insist that Comer’s letters, in combination with prison deprivations and harsh prison conditions, show that Comer’s decision to waive further proceedings is involuntary. Dr. Johnson, the independent psychiatric expert appointed by the District Court, toured the prison and interviewed Comer for numerous hours.

In Comer’s district court testimony, Comer agreed with Dr. Johnson’s opinion that although prison conditions contributed to Comer’s decision to waive further proceedings, the prison conditions were not the most significant factor nor were they so harsh as to cause him to abandon his natural desire to live. Comer acknowledged that he had been through tough times when in prison, yet he had “a hard time seeing that” prison conditions could make him do anything.

The conditions were harsh, but Comer observed that when he stays out of trouble the conditions get “unharsh.” Despite harsh prison conditions, Comer insists he is competent to “pull” his appeals and his decision to do so is voluntary. As there is no dispute regarding Comer’s competency, the District Court did not err in accepting Comer’s testimony that prison conditions are not the major factor in his decision to waive further proceedings nor are they so harsh as to force him to abandon a natural desire to live. Cf. Dawson v.

Mahoney, 451 F.3d 550, 551-52 (9th Cir.2006) (state court did not err in accepting competent capital petitioner’s testimony regarding the effect of prison conditions on his decision to waive further proceedings over habeas counsel’s arguments that petitioner’s reactions to harsh prison conditions rendered his decision involuntary). Because Comer is competent and has voluntarily decided to waive further proceedings, we grant his pro se motions to waive further proceedings, to terminate representation by habeas counsel, and for dismissal of his appeal. APPEAL DISMISSED. . Cf. Godinez v.

Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ("In addition to determining whether a defendant who seeks to waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary”); Moran v. Godinez, 57 F.3d 690, 698 (9th Cir.1995), amending 40 F.3d 1567 (9th Cir.1994) ("Whether a waiver of constitutional rights was made knowingly and voluntarily is a mixed question of law and fact which we review de novo”); Crandell v.

Bunnell, 25 F.3d 754 (9th Cir.1994) (per curiam) (reviewing de novo petitioner’s claim that he did not voluntarily waive his right to counsel in state municipal proceedings); United States v. Amano, 229 F.3d 801, 803 (9th Cir.2000) (reviewing Miranda waiver de novo). .

"There were no arguments to be heard or evidence to be taken” at the sentence imposition hearing; it "was the time for the [sentencing] Court’s rendition of the special verdict, a copy of which was furnished to both counsel.” See September 22, 1998 Arizona Superior Court Order at 3 (dismissing second state post-conviction petition); see also August 2, 1996 District Court Order at 27(re-jecting argument that Comer’s physical appearance at the April 11, 1988 imposition of sentence hearing could have affected Comer’s sentence for the state trial court “had already determined the sentence based on the evidence presented at a prior aggravation/mitigation hearing”). .

See August 2, 1996 District Court Order at 27; see also September 22, 1998 Arizona Superior Court Order at 3(state trial court, in its. order dismissing second state post-conviction petition as procedurally barred, noted that Comer "brought the whole situation on himself”). .

See 4/11/88 complete RT; see also September 22, 1998 Arizona Superior Court Order at 3 (state trial court, in its order dismissing second state post-conviction petition as procedurally barred, noted that on April 11, 1988 it had determined that Comer was conscious and aware of the proceedings and there was no issue as to Comer’s competency); see also August 2, 1996 District Court Order at 27(Dis-trict Court found that "the record of the sentencing proceeding itself shows that [Comer] was competent”). . See August 2, 1996 District Court Order at 26, 55. .

In the penultimate sentence of its order dismissing the second state post-conviction petition, the state trial court added: “Further, no colorable claim has been presented, in that no material issue of law or fact exists which would entitle [Comer] to relief in these proceedings.” See September 22, 1998 Arizona Superior Court Order at 10. A state court, however, does not vitiate a procedural bar ruling by addressing the merits of a claim in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). . See September 22, 1998 Arizona Superior Court Order at 4-5, 10. .

See December 6, 1999 Arizona Supreme Court Order. . As previously noted, we assume without deciding that we review the District Court’s voluntariness determination de novo. See supra pp. 961-62 & note 1. . See Habeas Counsel's November 22, 2006 Brief Re En Banc Review (filed under seal) at 45-60. We unseal the sealed pages cited in this opinion only to the extent that unsealing is necessary for purposes of this opinion. The sealed materials, including the specific pages cited herein, otherwise remain sealed. . See Habeas Counsel’s November 22, 2006 Brief Re En Banc Review (filed under seal) at 45-60; cf.

Comer, 230 F.Supp.2d at 1064-72. . Cf. United States v. Doe, 155 F.3d 1070, 1074 (9th Cir.1998) (Miranda waiver); Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ("That prerequisite for 'next friend’ standing is not satisfied where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to.proceed, and his access to court is otherwise unimpeded”). . See State’s August 25, 2004 ER 2 at 478-79, 514, 524 (filed under seal) & State’s August 25, 2004 ER 3 at 686-697, 712 (filed under seal). .

When the District Court determined that Comer’s decision to waive further proceedings is a voluntary one, the District Court implicitly accepted Comer’s testimony as sincere and credible. See Comer, 230 F.Supp.2d at 1071.