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Mandamus in the Wind


In In re Blodgett, 502 U.S. 236 (1992), the State of Washington asked the Supreme Court to issue a writ of mandamus directing the Ninth Circuit to decide a successive-petition habeas case which the Ninth had sat on for two and a half years after briefing and argument. The high court denied the writ because it did not feel that the State had made quite enough of an objection below, but it sent a clear warning, laying down this rule: "In a capital case the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case." Id., at 240. This rule is routinely ignored in the Ninth Circuit.

In the notorious case of Stanley "Tookie" Williams, for example, that court sat on the case for two and a half years just on the petition for rehearing. When the defendant wins before the panel, in contrast, the state's petition for rehearing is routinely disposed of in a month or two.

Today, the Ninth issued an order in the case of Arizona death row "volunteer" Robert Comer. According to the docket, "Robert Charles Comer has lodged four motions with this court: to terminate representation of habeas counsel immediately; to order habeas counsel to supply petitioner a complete copy of his case; to rule or turn the case over to a competent panel; and to withdraw all motions/briefs and strike all oral argument by habeas counsel since Nov. 2002." Today's order denies these motions, Judge Rymer dissenting. Earlier motions to dismiss the appeal, both by the state and by Comer pro se, remain pending. The District Court held a three day hearing and found Comer was competent to make this decision, almost four years ago.

So what could possibly be taking so long? When neither party to litigation wants a case to continue, there is nothing for a court to decide, at least if both parties are competent. The Supreme Court settled sixteen years ago that death is not different in this regard. See Whitmore v. Arkansas, 495 U.S. 149 (1990); Demosthenes v. Baal, 495 U.S. 731 (1990).

Judge Ferguson writes a brief concurrence joined by Judge Pregerson. "Comer's appointed habeas corpus counsel demonstrated serious due process violations by the judicial system against Comer that must be answered." Why must they be answered over the aggrieved party's objection? "I maintain that the right to die is not synonymous with the right to kill." That sounds like exactly the distinction rejected by the high court in Demosthenes and Whitmore.

Comer made his decision to stop fighting his sentence at a procedurally different point than the petitioners in the Supreme Court cases. It is hard to see how this makes a difference. The Article III power of a federal court to decide a question depends on the existence of a live controversy at the time of decision, not at some point in the past. See DeFunis v. Odegaard, 416 U.S. 312, 319 (1974).

Both Arizona and Comer have duly made the objection that Blodgett requires. This case cries out for a writ of mandamus.


The shackling concern cited by the majority is illusory. Comer's sentencing occurred in front of a judge, not a jury. Thus, the prejudicial aspects of shackling that might be of concern in a jury proceeding were not present. Furthermore, to the extent the court thinks the issue was governed by
the Supreme Court's recent decision in Deck v. Missouri, a claim about shackling during a sentencing hearing would at a minimum certainly not be cognizable on federal habeas because it would be a "new rule" not retroactive to Comer's case under Teague v. Lane.

Of course, more troubling is the failure of the court to follow its own previous language in its prior Comer opinion: In Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000) Judge Ferguson wrote that “[a]lthough Mr. Comer’s appeal raises serious questions about the constitutionality of his conviction and sentence, we must first decide the instant motions to dismiss the appeal.” Id. at 912. This language now rings pretty hollow, since the court is not dealing with Comer's desire to end its litigation. The court's failure to deal with the threshold issue of Comer's waiver of further proceedings and the relative meritlessness of the Due Process concern cited by the majority(although that should be irrelevant) both counsel in favor of going to SCOTUS as Judge Rymer's citation of Blodgett suggests.

Speaking of ringing hollow, didn't some Ninth Circuit judges tell us that Kevin Cooper's bogus innocence claims could be speedily resolved? It's been years.

"Since Cooper's guilt can be quickly and definitively determined by means of a simple test, there is no reason not to have it performed prior to his execution." Cooper v. Woodford, 357 F.3d 1054 (CA9 Feb. 9, 2004) (Silverman, J., concurring in part and dissenting in part).

And federal courts are working at breakneck speed to resolve lethal injection claims too.

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