Special to Law.com
09-18-2006
Related: Bashman Archive
Last week, a three-judge panel of the 9th U.S. Circuit Court of Appeals held that an inmate on Arizona's death row had knowingly and voluntarily abandoned his federal habeas corpus action challenging the imposition of the death penalty as punishment for having committed first-degree murder, armed robbery, kidnapping, aggravated assault, sexual assault and sexual abuse.
Notwithstanding the inmate's decision to forgo any appeal from the denial of his federal habeas action and to accept the death penalty as appropriate punishment, a majority on that panel held that permitting a state to execute a capital defendant without a full adjudication, including appellate review, of the inmate's federal habeas action, would violate the 8th Amendment.
Robert Charles Comer, the inmate in question, was convicted by a jury, but it was a trial court judge, sitting without a jury, who decided whether to impose a death sentence. The majority in the 9th Circuit ruling held that because the trial judge sentenced Comer to death at a proceeding where Comer was "nearly naked, bleeding, shackled, and exhausted," the death penalty was imposed in a manner that violated Comer's due process rights and that necessitated a resentencing.
Senior Circuit Judge Warren J. Ferguson was the author of the majority opinion, in which Circuit Judge Harry Pregerson joined. The third judge on the panel, Pamela Ann Rymer, issued a dissenting opinion that begins, "We need to -- and may only -- decide one question: whether death row inmate Robert Comer is competent to withdraw his appeal from denial of his petition for writ of habeas corpus and has done so knowingly and voluntarily. All of us agree that the answer to that question is yes. ... This means that this case is over, because Comer's waiver of further review of his habeas claims leaves no live controversy remaining between Comer and the State of Arizona."
The 9th Circuit's ruling in Comer v. Schriro raises some fascinating issues. First and foremost, does a federal appellate court have an affirmative duty to prevent a death row inmate from being executed in violation of the 8th Amendment even if the death row inmate himself competently and voluntarily seeks to abandon all legal challenges to his sentence? Second, does the 9th Circuit's "no waiver" rule require that federal habeas review occur for all state death row inmates, even those inmates who knowingly and intelligently decide not to initiate any federal habeas corpus proceeding? And third, why should this limitation on the right of a potentially prevailing litigant's ability to withdraw a federal court claim be limited to death row inmates?
Under the majority's logic, it would appear incumbent on all federal judges within the 9th Circuit, when reviewing a habeas challenge to a death sentence, to consider all possible arguments for setting aside the sentence, whether or not raised by the inmate, because anything less would presumably violate the 8th Amendment.
It's ironic that this sweeping 8th Amendment ruling, rejecting the right of a death penalty volunteer to control his own fate, should issue in a case where the particular due process error was likely inconsequential and also easily remedied. Because a trial judge, sitting without a jury, decided whether to sentence Comer to death, one can presume that Comer's appearance at the sentencing hearing had very little influence over the judge's choice of penalty. In other words, trial judges are not supposed to decide whether to sentence a convicted murder to death or life imprisonment based on the convict's physical appearance at the sentencing hearing. And because the 9th Circuit's decision merely orders a new sentencing hearing, the state of Arizona will presumably have little difficulty achieving a lawful resentencing of Comer to death during a proceeding at which he is properly clothed and neither bleeding, shackled nor exhausted.
A much more difficult case would have been presented if the inmate who was now a death penalty volunteer had withdrawn his federal court challenges to a death sentence that was clearly and indisputably imposed in violation of the 8th Amendment and where no amount of further proceedings could remedy that constitutional violation. For example, imagine an instance in which an individual sentenced to death for a murder committed before age 18 had decided to abandon all federal habeas proceedings before the death sentence could be overturned pursuant to the U.S. Supreme Court's recent holding
I think that the proper answer in all of these cases would be to respect a death row litigant's wishes and allow the federal habeas corpus action to be dismissed. Nevertheless, the judges could explain that, had the action not been dismissed, the law would have compelled them to overturn the death sentence as unconstitutional. Such a ruling would squarely put the relevant governing body's executive branch on notice that it would be violating its own sworn obligation to adhere to constitutional commands by allowing the death sentence to be carried out.
In that way, a federal court would respect the inmate's wishes to withdraw his habeas challenge but, at the same time, would opine that the death sentence would have been set aside as unconstitutional had the challenge not been withdrawn. I doubt that the governor of any state would permit an execution to be carried out if it was obvious that doing so would violate existing 8th Amendment jurisprudence.
Similarly, in Comer's case, the 9th Circuit's majority could have respected the inmate's wishes to withdraw his habeas corpus appeal, and thereby not overturn his death sentence, while writing in their opinion that had the appeal not been withdrawn, then would have issued a decision setting aside the death penalty and requiring a resentencing because of the due process violation that occurred at the original sentencing. Would the state of Arizona, under those circumstances, have carried out an execution of an inmate whom the majority of a 9th Circuit panel had opined had been unconstitutionally sentenced to death, even though the statement technically constituted dicta? I would think not.
I am confident that if the state of Arizona seeks further review in Comer's case, either from an en banc 9th Circuit or the U.S. Supreme Court, last week's divided decision holding that it violates the 8th Amendment to abide by the wishes of a so-called death penalty volunteer will be overturned. The three-judge panel majority's unwillingness to allow an unconstitutional execution to occur may be admirable from a policy perspective, but it exceeds their power as Article III judges to issue a ruling in the absence of any actual case or controversy. For better or worse, Article III's limits on judicial power contain no
exceptions applicable to the death penalty or 8th Amendment challenges.
Howard J. Bashman operates his own appellate litigation boutique in
Willow Grove, Pa., a suburb of Philadelphia. He can be reached via
e-mail at hjb@hjbashman.com. You can access his appellate Web log at
http://howappealing.law.com/.
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