Denial of his habeas petition is reversed

Comer v. Schriro, No. 98-99003 (9th Cir. September 13, 2006).

The Constitution does not permit a state to execute a capital defendant who wants to die but whose properly filed federal habeas appeal has not yet been substantively reviewed. The state's and a death row prisoner's motions to dismiss his own appeal are denied where, although petitioner competently and voluntarily waived his habeas appeal right, upholding the waiver would amount to a violation of the Eighth Amendment. Denial of his habeas petition is reversed as to the penalty phase where petitioner's sentence was invalid and habeas relief was merited based on the violation of his due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted. http://caselaw.lp.findlaw.com/data2/circs/9th/9899003p.pdf