The en banc Ninth Circuit today once again corrected an out-of-the-mainstream panel decision in a habeas case. Robert Comer is an Arizona inmate sentenced to death whose attorneys are trying to challenge his sentence over his objections. In DP parlance, he is a "volunteer." The Ninth previously ordered the district court to determine if he was competent to withdraw his petition, and that court determined that he was. On September 13, a three-judge panel ordered the case to go forward anyway, with this holding:

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.

Today the 15-judge "en banc" court corrected this jaw-dropping violation of the Article III "case" or "controversy" limitation on the judicial power. The opinion is per curiam. Judge Pregerson dissents alone, reprinting the panel opinion.

The Ninth's increasing willingness to correct fringe panel opinions favoring the defense position* is a welcome, if overdue, development, as previously noted here. If this keeps up, maybe the Supreme Court can spend less of its time correcting obviously erroneous decisions from the Ninth.

*In this unusual case, the defense position is the position of the defense lawyer over the objection of the client.

David Kravets reports on the case for AP. In Monday's New York Times, Adam Liptak had a piece on Comer, which How Appealing has made temporarily available to nonsubscribers via this link.