Full opinion text
AMENDED OPINION (Death Penalty) SILVER, District Judge. The Court issued an Order on June 20, 2002, announcing its decision and finding that Petitioner Robert Comer was competent to dismiss habeas counsel and to fore-go further legal review, and that he made these decisions voluntarily. The Court issued an opinion setting forth its findings of fact and conclusions of law on July 29, 2002. This amended opinion is issued to correct typographical and grammatical errors. FINDINGS OF FACT AND CONCLUSIONS OF LAW Petitioner Robert Charles Comer (“Mr. Comer”) is an Arizona inmate sentenced to death for murder. Following the denial by this Court of his petition for capital habeas relief, he filed an appeal with the Ninth Circuit Court of Appeals. Respondents filed a motion to dismiss the appeal based on pro se letters written by Petitioner and mailed by him to their counsel reflecting his desire to terminate appointed habeas counsel’s (“habeas counsel”) representation, forego further legal review and proceed to execution. Petitioner also sent a pro se motion to dismiss his appeal to the Ninth Circuit. Habeas counsel objected to the motions and asked the Ninth Circuit to establish a procedure to determine whether Petitioner was competent to .terminate representation and waive his appeal and whether his decisions were rendered involuntary because of his conditions of confinement. The Ninth Circuit granted habeas counsel’s request, suspended ruling on Petitioner’s motions pending remand to this Court for an evidentiary hearing regarding Petitioner’s competency and the voluntariness of his decisions. An evidentiary hearing was conducted on March 26-28, 2002. Before discussing the evidence presented at the hearing and the legal basis for this Court’s decisions, the Court summarizes the circumstances involved in the filing of this action, the appointment of counsel, the denial of habe-as relief and appeal and pertinent post-remand events. BACKGROUND I. Procedural History On July 19, 1994, Mr. Comer filed a motion for stay of execution with a petition for habeas relief and a motion for appointment of counsel, personally signed by him. (Dkt. 1.) The same day, a stay of execution was entered and John R. Hannah, then with the Federal Public Defender (“FPD”), and Peter Eckerstrom were appointed as counsel for Mr. Comer. On February 28, 1997, Denise I. Young of the FPD was substituted in place of Hannah. (Dkt. 105.) Mr. Comer filed an amended petition for habeas relief. (Dkt. 28.) The Court determined that certain of the claims in the amended petition were procedurally barred and that Mr. Comer was not entitled to relief on the merits of the remaining claims. (Dkts. 86 and 111.) Mr. Comer was granted a certificate of probable cause on March 3, 1998. (Dkt. 119.) On June 6, 2000, the Ninth Circuit remanded this matter to this Court with instructions to hold an evidentiary hearing to determine whether Mr. Comer was competent to terminate representation by counsel and forego further legal review, and whether his conditions of confinement rendered those decisions involuntary. At that time, Mr. Comer had been an inmate in the custody of the Arizona Department of Corrections (“ADOC”) for twelve years. Mr. Comer was housed in Cellbloek 6 (“CB6”) of the Arizona State Prison in Florence, Arizona, for several months in 1988. Between 1989 and 1996, Mr. Comer was housed in Special Management Unit I (“SMU I”) in the Eyman Complex of the Arizona State Prison in Florence, Arizona. Since 1996, Mr. Comer has been housed in SMU II, also in the Eyman Complex. On June 30, 2000, Julie Hall, formerly with the FPD, was substituted for the FPD as habeas co-counsel and filed a notice of appearance. (Dkt. 122.) On or about July 18, 2000, Mr. Comer mailed pro se a letter to Assistant Arizona Attorney General Jon Anderson, who then represented Respondents. (Ex. A to Dkt. 123.) In the letter, Mr. Comer thanked Anderson for his efforts seeking dismissal of Mr. Comer’s appeal and suggested that Anderson represent him in his efforts to dismiss his appeal. In those letters Mr. Comer claimed he did not want to meet with his lawyers; however, he acknowledged that his daughter had at some point asked him to meet with lawyers, which he did, and he acknowledged that he did “sign a few papers ... so Pete [Eckerstrom] can get paid.” He further stated that he had only learned “a month ago or so” that his automatic direct appeal had ended some time before and that he had believed “those lawyers” with whom he had met were involved in the automatic direct appeal of his conviction. (Ex. A at 3 to Dkt. 123.) Mr. Comer accused habeas counsel of having disseminated lies about him by calling him “delusional” and “mentally damaged.” (Id.) Mr. Comer provided Anderson with the names of corrections officers he thought could or would verify his competence. (Id.) On July 20, 2000, Respondents filed a motion for determination of counsel for Mr. Comer based in part on one of Mr. Comer’s letters. (Dkt. 123.) On July 25, 2000, Mr. Comer filed pro se motions to attend any and all proceedings, and to either substitute new counsel or to allow him to represent himself. (Dkts. 124 and 126.) A status hearing was held on August 25, 2000, on the motion for determination of counsel. Mr. Comer appeared by video-conference from a secure location in Florence, Arizona. (Dkt. 131.) After hearing oral argument on the motion to disqualify, the Court denied the motion finding no basis to disqualify the Attorney General’s Office based on its asserted interference with the attorney-client relationship, nor did the Court find a basis for an alleged violation of Mr. Comer’s Fifth and Sixth Amendment rights. (Dkts. 136 & 138.) The Court also considered whether the attorney-client relationship between Mr. Comer and habeas counsel had been irreconcilably broken. Habeas counsel explained that while the attorney-client relationship was strained because habeas counsel sought a determination that Mr. Comer was incompetent to abandon his appeal and dismiss them as counsel, they remained committed to appropriately representing what they believed to be Mr. Comer’s “rational interests” pending a determination of Mr. Comer’s competency and the voluntariness issue. (R.T. 8/25/00 at 50-51.) During a sealed portion of the hearing with only habeas counsel and Mr. Comer, Mr. Comer strenuously expressed his unwillingness to communicate or cooperate with habeas counsel if they questioned his decision to abandon his appeal, and his competence to do so. Habeas counsel opined that Mr. Comer was unlikely to cooperate with any attorney who did not accede to his decision. On September 18, 2000, the Court granted Respondents’ motion, but ordered habe-as counsel to continue to represent Mr. Comer in connection with his habeas claims pending a determination of competency and voluntariness. (Dkt. 138.) Concomitantly, and in accordance with the procedure embraced by the Ninth Circuit in Mason v. Vasquez, 5 F.3d 1220, 1223 (9th Cir.1993), the Court appointed Michael Kimerer, Esq., a certified Arizona State Bar criminal specialist, whose firm is A-V rated, and who enjoys an excellent reputation in the legal community as special counsel, to represent Mr. Comer concerning his expressed decisions to end his appeals and proceed to execution. (Id.) The Court instructed Mr. Kimerer (“Special Counsel”) to first assess whether he believed Mr. Comer intended to waive his appeal and, if he did, to continually reassess Mr. Comer’s decision. If at any time Mr. Comer wavered in his decision, or if Mr. Kimerer determined that Mr. Comer was not competent or his decision was not voluntary, Mr. Kimerer was to immediately inform the Court. On November 3, 2000, the Court ordered the Director of ADOC, Terry Stewart, to surrender custody of Mr. Comer to the United States Marshal (“USM”) for transport to the United States Medical Facility in Springfield, Missouri, for a complete psychiatric/psychological evaluation of his mental competence. (Dkt. 140.) On December 8, 2000, the USM filed a motion to vacate the order to transport Mr. Comer to Springfield arguing that the Court lacked authority to compel it as a non-custodian to bear the expense of producing and transporting a state prisoner-witness for federal court proceedings under the All Writs Act, 28 U.S.C. § 1651. (Dkt. 145 at 1.) The Court denied the motion, but ordered Respondents to reimburse the USM for the costs of transporting Mr. Comer to Springfield. (Dkt. 146.) On January 31, 2001, Respondents filed a motion to stay or vacate portions of the November 3 Order, arguing that transporting Mr. Comer to and from Springfield posed an extreme security risk and that the cost of such transport, including appropriate security measures, would impose an undue hardship on Respondents. (Dkt. 151 at 1-2.) The risks posed by transportation allegedly would require “a USM Special Unit Squad ... to be brought to Arizona, and an aircraft, presently located in Louisiana, [would] need to be put into service solely for the purpose.” (Id.) Respondents reported that the USM estimated the costs associated with such transport at between $30,000 and $50,000 for aircraft, fuel, and personnel. (Id.) In addition, Respondents pointed to Mr. Comer’s crimes of conviction and the discipline record he had amassed, which ADOC believed warranted characterizing him as the most dangerous prisoner in its custody; his disciplinary record included a special expertise or proclivity for making and concealing weapons and committing numerous assaults. (Id.) Respondents also argued that Mr. Comer would be able to make weapons while out of ADOC custody that he might attempt to smuggle into ADOC upon his return. (Id.) Respondents also pointed out that Mr. Comer had previously escaped from prison in California. (Id.) Habeas and special counsel also opposed transporting Mr. Comer to Springfield because of the extremely uncomfortable security procedures necessary to ensure his safe transport. (Dkts. 160 & 161.) Expedited briefing of the motion to stay/vacate was ordered. (Dkt. 153.) Following argument on February 7, 2001, the Court granted the motion to vacate the transport order because of the extreme security risk posed by transport, the associated costs to ensure security, and the likelihood that a second evaluation would be required at ADOC to assess the voluntariness issue. II. Court Appointed Expert The Court suggested that a neutral evaluator be appointed and ordered the parties to confer and suggest candidates. (Dkts. 158 & 162.) On February 9, 2001, the Court provided the parties with the curriculum vitae of Dr. Sally Johnson, Associate Warden Medical/Chief Psychiatrist of the Health Services Division of the Federal Correctional Complex at Butner, North Carolina for their consideration. (Dkt. 162.) Respondents agreed to the appointment of Dr. Johnson. (Dkt. 164.) Habeas and special counsel had proposed alternative experts, but special counsel subsequently agreed to the appointment of Dr. Johnson. (Dkts. 163, 165 & 170; R.T. 3/8/01 at 3-4.) Dr. Johnson was appointed as an expert for the Court and habeas counsel reserved the right to seek the appointment of their own experts following the issuance of Dr. Johnson’s report.. (Dkt. 174.) On September 27, 2001, Dr. Johnson submitted her written evaluation concluding that Mr. Comer was competent to waive his appeal and that his decision to do so had not been rendered involuntary by his conditions of confinement. (Dkt. 282.) There were a surfeit of diversions that impeded the completion of Dr. Johnson’s report and ultimately the holding of the competency hearing, two of which are discussed below. A. Conduct of Mr. Comer Warranting Discipline and the Media Event Following Dr. Johnson’s appointment, she and special counsel sought authorization for contact visits with Mr. Comer to facilitate and expedite completion of their respective tasks. On March 14, 2001, the Court entered a stipulated order lodged by Respondents granting the request. (Dkt. 180; R.T. 3/14/01 at 5-9.) Thereafter, several contact visits with Mr. Comer occurred without incident. On April 30, 2001, with the knowledge of, and without objection from Respondents, special counsel asked, and received, an order permitting them to forego wearing protective gear ordinarily required of anyone within physical proximity of a death row inmate. (Dkt. 197; R.T. 4/30/01 at 31-32.) On May 4, 2001, correctional staff discovered a piece of metal had been cut from the desk in Mr. Comer’s cell. A portion of the missing metal, sharpened into a blade, was reportedly recovered from the cell of an inmate adjacent to Mr. Comer’s cell. A lighter flint, which ADOC believed Mr. Comer used to cut the metal from his desk to manufacture the shank, was reportedly found concealed in a wall of Mr. Comer’s cell. The remainder of the metal cut from the desk was never found despite repeated searches of Mr. Comer’s cell and the pod in which Mr. Comer was housed, as well as medical examinations of Mr. Comer and other inmates. Additionally, Mr. Comer made threatening statements to correctional officers. The Court was not notified of these events nor did Respondents seek modification of the stipulated-to contact visit order for Dr. Johnson and special counsel. Instead, and without satisfactory explanation, Respondents contacted a local television station about airing a story concerning the risks posed by death row inmates generally, and Mr. Comer in particular. On or about May 14 and 15, 2001, Respondents escorted a television reporter and a film crew through SMU II. ADOC staff was interviewed about Mr. Comer, his background, and his conditions of confinement, and Mr. Comer was filmed without his consent. Two segments about Mr. Comer ’Were subsequently broadcast, in which Mr. Comer was described as Arizona’s Hannibal Lecter, a fictional cannibalistic serial killer. (See Dkt. 269.) The Court set a status hearing for Respondents to explain why they delayed more than a month after the shank was found, and weeks after the media broadcasts, before filing a motion to rescind contact visitation. Hearings were held in June 2001, but Respondents failed to provide a satisfactory explanation. The Court was informed, however, that Mr. Comer’s cell was being modified so that his bunk, commode and sink were made from a special type of metal to diminish his ability to make weapons, and that his desk would be removed entirely. (R.T. 6/21/01 at 21-23.) Dr. Johnson expressed a concern that the media event and change in Mr. Comer’s conditions of confinement might introduce additional issues relevant to her evaluation of his conditions of confinement, and therefore delay her final report because she would need to reassess the changed conditions. She advised the Court and the parties that to the extent such disruptions could be eliminated, consistent with the security of the institution, the more expeditiously she would be able to complete her assignment. After briefing and hearings, the Court rescinded the contact visit order because Mr. Comer refused to disclose the location of the missing metal, ADOC could not find it, making contact visits too risky. (Dkt. 236.) Further, after extensive briefing and numerous hearings regarding ADOC’s contact with the media concerning Mr. Comer, the Court ordered that a record of any further media contacts with Mr. Comer be provided by Respondents to the evaluating experts. The Court also accepted Respondents’ proposal to adhere to specific rules with respect to media contacts involving Mr. Comer. B. Dietary Issues During a status hearing on September 4, 2001, Dr. Johnson expressed concern that Mr. Comer might not be eating sufficient food in light of his activity level, noted his complaints that he was always hungry, and reported an observable weight loss. (R.T. 9/4/01 at 17.) Insufficient food, she explained, could adversely affect his mental state which would require her to reassess his competency. (R.T. 9/4/01 at 21-22.) Respondents acknowledged awareness of Dr. Johnson’s concerns, and reported that ADOC had begun monitoring whether Mr. Comer accepted his meal trays and whether he appeared to be eating. (Id. at 16-17.) In addition, Respondents reported that an ADOC physician and the ADOC Facility Health Administrator (“Health Administrator”) visited Mr. Comer at his cell to conduct a medical examination, but Mr. Comer refused to cooperate. They stated, however, that he did not appear to be in “acute distress,” from their observations from outside his cell. (Id. at 15-16, 25.) The Court instructed Respondents to apprize the court, the parties and Dr. Johnson of Mr. Comer’s mental and physical status. (Id. at 23-25.) At a status hearing held on October 1, 2001, habeas counsel asked that ADOC be ordered to provide Mr. Comer vegetarian meals without requiring him to meet the ADOC regulation for vegetarian meals. The Court learned that Mr. Comer had supplemented the non-meat portion of his ADOC meals with commissary items. The Court declined to order ADOC to make an exception to its policy concerning the provision of vegetarian meals to inmates based in part on Respondents’ representations that Mr. Comer had commissary privileges. (Id. at 18.) On October 18, 2001, at the request of habeas counsel, an emergency hearing was held regarding Mr. Comer’s health. At the hearing, habeas counsel reported that Mr. Comer had informed her that he lacked the strength to leave his cell for recreation or exercise. (Id. at 7.) The Court learned from Respondents that Mr. Comer had been found guilty of a major and a minor violation for unidentified conduct on August 31, 2001, and sanctioned with a thirty and fifteen-day loss of commissary privileges. (R.T. 10/18/01 at 9-10.) Respondents informed the Court that the revocation of those privileges did not take effect until Monday, October 15, 2001, and would be in effect for thirty days. The Court also learned that as of October 15, ADOC staff observed packages of “Honey Buns,” Mr. Comer’s favorite commissary item, in his cell. (R.T. 10/18/01 at 27-28.) Additionally, Respondents reported that since October 15, Mr. Comer had refused five or six meals. (Id.) The Court directed Respondents to medically evaluate Mr. Comer’s condition; determine the date and nature of the rule infraction; provide and explain ADOC’s vegetarian meal policy; and submit its procedures regarding ADOC’s response to inmates who engage in hunger strikes. (Id. at 28-30.) At a hearing on October 19, ADOC medical staff reported- that Mr. Comer had refused to consent to a medical examination on October 18 and 19, 2001. (R.T. 10/19/01 at 4-5, 6.) Also, the Health Administrator reported that only thirteen percent of Mr. Comer’s meals (of 2,800 calories daily), was comprised of protein or meat. {Id. at 9-10.) It was undisputed that Mr. Comer never requested a vegetarian diet pursuant to the ADOC policy because his decision to become a vegetarian was not faith based and he did not have a medical condition that made vegetarian meals necessary. Finally, the Health Administrator summarized ADOC’s procedures for inmates who became endangered as a consequence of a “hunger strike,” described as the refusal of meals for seventy-two hours, or nine meals. {Id. at 11.) He testified that the prisoner would be monitored, and if his health deteriorated, a decision would be made whether hospitalization and force-feeding was required. {Id. at 11-12,13-14.) Significantly, the Court learned that Mr. Comer’s major rule infraction was for threatening a corrections officer who had issued him a minor violation charge for passing or “fishing” materials to another inmate. (R.T. 10/19/01 at 18-19.) Moreover, Mr. Comer waived his right to attend the disciplinary hearing, and was notified the same day that he had been found guilty and sanctioned to a thirty day loss of commissary privileges. {Id. at 19-20.) In light of the evidence, the Court found that ADOC’s vegetarian meal policy was not irrational and that by his own admission it did not apply to Mr. Comer. The Court refused to interfere with ADOC’s discipline of Mr. Comer for the infractions nor did the Court order ADOC to make a special exception to its vegetarian meal policy for Mr. Comer. (Id. at 30-33.) See Turner v. Safley, 482 U.S. 78, 89, 90-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); accord Lewis v. Casey, 518 U.S. 343, 361, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The Court found that Mr. Comer had voluntarily made the choice not to eat any portion of the meals provided by ADOC, but it ordered ADOC to continue monitoring Mr. Comer’s physical and mental condition. {Id.) Mr. Comer’s commissary privileges were reinstated following the expiration of the sanction period without further Court involvement. He appeared healthy and not underweight at the time of the competency hearing in March 2002 and the Court’s visit with him at ADOC in April 2002. III. Second Expert Evaluation After Dr. Johnson’s report was filed in late September 2001 finding Mr. Comer competent and his decision voluntary, ha-beas counsel renewed requests for the appointment of Dr. Terry Kupers, a psychiatrist, and Dr. Craig Haney, a psychologist and attorney, as their experts. Both were appointed, and the evidentiary hearing was scheduled to commence on January 22, 2002. Dr. Kupers met with Mr. Comer on November 28 and 29, 2001, and again on January 11, 2002. Habeas counsel filed a motion to continue the evidentiary hearing to allow Drs. Kupers and Haney sufficient time to complete their evaluations. Mr. Comer, who appeared telephonically, strongly objected to a continuance and threatened not to cooperate with their evaluations. (See R.T. 1/11/02 at 4-9, 13-17.) The Court expressed understanding of Mr. Comer’s frustration with the delay, but made it clear that it could not legally determine his competency and the volun-tariness of his decisions without consideration of habeas counsel’s expert’s opinions. (Id.) He was told his cooperation was necessary and, if he did not cooperate, the Court’s task would be incomplete, resulting in a return of the case to the appellate court for possible resolution of the habeas petition. (Id.) To ensure that Drs. Kupers and Haney had sufficient time to complete their evaluations, the evidentiary hearing was reset to March 26-28, 2002. (Dkts. 349 & 353.) Mr. Comer cooperated and Dr. Kupers completed his evaluation and submitted a report on March 19, 2002. Dr. Kupers concluded that Mr. Comer suffered from depression, post-traumatic stress disorder, and SHU Syndrome, and, consequently, he was not mentally competent to waive further legal review. Dr. Kupers further found that the conditions of Mr. Comer’s confinement rendered his decision to waive further legal review involuntary. (Ex. 1 to Dkt. 383.) IV. Changes in Mr. Comer’s Conditions of Confinement, January 2002 Beginning sometime in January 2002, Mr. Comer was permitted to have in his cell for the first time in several years a radio cassette player, and a television, in recognition of the absence for six months of any significant disciplinary infraction. (R.T. 3/26/02 at 272-73, 280, 282-83; R.T. 3/27/02 at 535-37, 546-47, 550-51; R.T. 3/28/02 at 836, 873.) As Deputy Warden Marshall explained at the competency hearing, he had promised Mr. Comer a radio cassette player and a television if he did not have a significant disciplinary write-up for six months. (R.T. 3/27/02 at 535-37, 546^7, 550-51.) V. Evidentiary Hearing, Prison Tour and Briefing The Court required counsel to agree on a fair allocation of the time for presentation of evidence at the evidentiary hearing. Counsel complied. In addition, the Court considered Respondents’ motion to hold the hearing at SMU II, rather than the Federal Courthouse, because of security concerns in transporting Mr. Comer to Phoenix. Habeas counsel opposed the motion; special counsel sought to ensure that Mr. Comer would be physically present whether the hearing was held at SMU II or at the Federal Courthouse. (Dkts. 376 & 419.) After numerous planning meetings with the United States Marshal’s Service, working with ADOC security, the Court ordered that Mr. Comer participate by video-conference at the hearing on March 26, 2002. The Court further ordered that if he complied in all respects with the orders of the transporting officers, he would be transported to Phoenix to appear in person on March 27 and 28. Mr. Comer persuaded the Court that he understood what was required of him and was committed to adhere to the requirements. On March 26, 2002, Mr. Comer cooperated with the transporting officers and was transported without incident to a secure prison facility in Florence, Arizona, where he participated during the hearing with special counsel by video-conference. Because of his cooperation on the first day of the proceedings, Mr. Comer was transported without incident to Phoenix where he appeared at the hearing in person on March 27 and 28. Again, he cooperated in all respects with security personnel during the last two days of the hearing. For security reasons, Mr. Comer was not permitted to testify from the witness box and was seated approximately twenty-five feet from the Court and twenty feet from habe-as counsel. Because of this distance the Court was unable to clearly observe his demeanor. Thus, his testimony was videotaped without objection for review by the Court before rendering its decision, and for counsel’s preparation for briefing. It was filed under seal for appeal to the Ninth Circuit. After the hearing, and without objection, on April 6, 2002, the Court and counsel for all the parties toured the portions of ADOC in which Mr. Comer had been, and is presently, housed since his incarceration began at ADOC, including CB6, SMU I and SMU II. The Court and counsel inspected the various cells, as well as the shower and recreation areas. Mr. Comer was present when his cell was inspected, and answered questions posed by the Court in the presence of all counsel. Finally, the parties submitted proposed findings of fact and conclusions of law. (Dkts. 399, 402 & 413.) Respondents filed objections and a response to habeas counsel’s proposed findings and conclusions. (Dkt. 407.) Special counsel also filed objections to habeas counsel’s proposed findings and conclusions. (Dkt. 423.) Habeas counsel filed responses to Respondents’ and special counsel’s proposed findings and conclusions. (Dkts. 414 & 420.) Habeas counsel argues that Mr. Comer is not competent to waive his habeas appeal because he suffers from three mental disorders: depression, post-traumatic stress disorder (“PTSD”) and SHU syndrome. Counsel further argue that the conditions of Mr. Comer’s confinement at ADOC, and his conditions at the California Department of Corrections resulted in PTSD and SHU syndrome, and in turn, have rendered his decision to waive further legal review involuntary. Special counsel argues that Mr. Comer has the capacity to make the decision to terminate representation by habeas counsel and to waive further legal review and that his decisions to do so are not rendered involuntary by his present and/or past conditions of confinement. Respondents agree that Mr. Comer has the mental capacity to make the decision to terminate representation by habeas counsel and to waive further legal review. DISCUSSION There are two issues before this Court. First, whether Mr. Comer is competent to dismiss habeas counsel' and abandon his habeas appeal. The second is whether Mr. Comer’s decision to dismiss counsel and abandon his appeal has been rendered involuntary in light of his conditions of confinement. The Court has been cognizant from the outset of the solemnity of the decision before it. First, there is the obvious— death is a one-way street — but the Court is also aware that its findings of fact and credibility decisions will be accorded significant deference. See Fed.R.Civ.P. 52(a); Mason v. Vasquez, 5 F.3d 1220, 1224-25 (9th Cir.1993). These realities have led the Court to anguish over its decision and ultimately over the question .of whether any healthy person, choosing between being and not being, could ever freely choose the terrifying ignorance of what may follow death, over enduring the ordeal of life. Resolving whether Mr. Comer’s decision has been competently made without coercion has required immersion into the details of Mr. Comer’s life to gain an intimate understanding of him as a person, including learning and evaluating all meaningful aspects of how he presently lives, and of everywhere he has lived while incarcerated, which were not the simplest of tasks. It has required rigorous study of numerous papers, pleadings, and his writings, and most significantly, it has required listening to him, watching him testify, and carefully examining the evaluations of him conducted by qualified psychiatrists and a psychologist. In the end, the Court is confident of its factual and legal decision that Mr. Comer has competently and voluntarily made his dire choice, though the Court will never be comfortable with it. I. Guidance for Determining Competency and Voluntariness Set Forth in the Ninth Circuit Opinion The Ninth Circuit remanded this case for an evidentiary hearing, and the majority expressed its “grave concerns that a mentally disabled man may be seeking this court’s assistance in ending his life,” mandating “an evidentiary hearing to determine if [Mr. Comer] can validly withdraw his consent to proceed with this appeal.” Comer v. Stewart, 215 F.3d 910, 916 (2000). The Ninth Circuit directed this Court, after considering medical and psychiatric evaluations offered by the parties, to: determine “whether [Petitioner] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees, 384 U.S. at 314, 86 S.Ct. 1505, 16 L.Ed.2d 583. Id. The Ninth Circuit also expressed concern regarding the voluntariness of Mr. Comer’s decision noting that, “we and other courts have recognized that prison conditions remarkably similar to Mr. Comer’s descriptions of his current confinement can adversely affect a person’s mental health.” Id. at 915-16. II. History and Present Conditions of Confinement of Mr. Comer Although the Ninth Circuit expressly disavowed any intention that this Court assess whether the conditions of confinement on Arizona’s death row, i.e., in SMU II, violate the Eighth Amendment, it directed this Court to assess whether Mr. Comer’s conditions of confinement have rendered his decision to waive further review involuntary. In addition, the conditions of his confinement in the California Department of Corrections (“CDC”) figure in the experts’ evaluations regarding whether Mr. Comer suffers from a mental disorder. Therefore, an overview of those conditions is included below. A. Conditions 'in Soledad, DVI and Folsom Security Housing Units Between 1979 and 1984, Mr. Comer was incarcerated at the Corrections Training Facility at Soledad (“Soledad”), Deuel Vocational Institute at Tracy (“DVI”), and Folsom Prison. Mr. Comer was incarcerated at Soledad between April and October, 1979. On October 19, 1979, Mr. Comer escaped from Soledad. (See ER 25, Habeas Ex. Vol. 1, Dkt. 383.) In May 1980, Mr. Comer was apprehended in Dallas, Texas, returned to CDC custody, and assigned to Unit IV at Soledad, a Segregated Housing Unit (“SHU”), where he remained for approximately eight months until February 1981, when he was transferred to general population at Folsom as a Level IV inmate. (See id.) Mr. Comer remained in general population at Folsom until September 8, 1982, when he was slashed in the neck by another inmate and seriously injured. (See id.) Following emergency treatment outside the prison, Mr. Comer was reassigned to a Folsom SHU based on the attack and remained there for approximately six months. (See id.) In February 1983, Mr. Comer was transferred from Folsom to a DVI SHU. (See id.) In August 1984, Mr. Comer was paroled. In total, Mr. Comer was confined to Soledad SHUs for approximately eight months from June 1980 until February 1981, to Folsom SHUs for approximately six months from September 1982 until February 1983, and to DVI SHUs for as long as seventeen months. Prior to and continuing through the period of Mr. Comer’s confinement in So-ledad, Folsom and DVI SHUs, a class action was litigated regarding the conditions of confinement in those SHUs. See Wright v. Rushen, 642 F.2d 1129, 1135 (9th Cir.1981); Toussaint, 553 F.Supp. at 1368 n. 1; see also McCord, Imagining a Retributivist Alternative, 50 Fla. L. Rev. at 99; Romano, If the SHU Fits, 47 Emo-RY L.J. at 1097-1106; Miller, International Protection of the Rights of Prisoners, 26 Cal. W. Int’l L.J. at 156-60. On November 3, 1980, the district court issued a preliminary injunction requiring the CDC to implement steps to ameliorate the conditions in the SHUs at the four institutions and to establish procedures with respect to the assignment of inmates to those units. See Appendix to Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981). However, on March 13, 1981, the Ninth Circuit vacated the injunction and remanded for application of the appropriate standard. See Wright, 642 F.2d at 1135. The class renewed its motion for a preliminary injunction, and, on January 14, 1983, the district court issued a new preliminary injunction concerning the conditions of confinement in the SHUs at So-ledad, DVI and San Quentin. See Toussaint v. Rushen, 553 F.Supp. 1365, 1368 n. 1, 1385 (N.D.Cal.1983). The district court made detailed findings regarding the conditions at those institutions. With respect to SHUs at Soledad and DVI, in which Mr. Comer was confined between May 1980 and February 1981 (So-ledad) and between February 1983 and August 1984(DVI), respectively, the court found that approximately one-fifth of Sole-dad’s total inmate population was housed in its SHUs and that approximately one-third of DVI’s total inmate population was housed in DVI’s SHUs. The court determined that such placement was arbitrary, lengthy, indefinite, and without the benefit of procedural protections. Toussaint, 553 F.Supp. at 1370. The court also found that the capriciousness with which inmates were assigned to the SHUs intensified the “debilitating effects” on them of the conditions in those units. Id. The physical conditions of the cells in the units were described as follows: The cells measured five or six feet wide and eight to nine feet long, furnished with a bed “of some sort” and thin mattress, a pillow and blanket, a coverless toilet and a sink. Id. at 1371. Many cells were windowless and were primarily lighted only by a single bulb of “inadequate wattage.” Id. The court found inmates were, at best, irregularly provided changes of clothing, bedding and linens, and at worst, weeks or even months could elapse before an inmate was provided with clean clothing, bedding and linens. See id. The court found the cells in the units lacked adequate heating and ventilation, causing them to be hot and stuffy in the summer and cold in the winter, and that the antiquated and inadequate plumbing frequently resulted in leaking toilets, wet floors, water shutdowns and an inability to flush toilets. See id. at 1371,1372. The court also found rodents, insects, dirt and excrement present in the cells in the units, and that inmates were not provided with the means to clean their cells. See id. The court found that inmates spent as many as twenty-three and one-half hours a day in their cells and, to their detriment, most did not receive daily exercise. See id. at 1372-73. It also found many inmates were denied contact visits with family or friends, and that delivery and mailing of inmate correspondence was often obstructed by corrections staff. See id. at 1374. The court further found the lack of vocational, educational and recreational activities exacerbated boredom, tension and idleness. See id. at 1373. It found that SHU inmates experienced difficulty in obtaining reasonably prompt access to necessary medical, dental and psychiatric treatment. See id. at 1374. In addition to all of these conditions, the court found that despite the tiny size of the cells, there was substantial involuntary double-celling in the units. Id. at 1371. It found that double-celling, in conjunction with the other conditions in the units, engendered “violence, tension, and psychiatric problems.” Id. at 1372. It also found that the arbitrariness with which inmates were consigned to the units, together with the lengths and conditions of such confinements, and the absence of procedural safeguards, seriously debilitated the physical and psychological well-being of inmates. See id. at 1374-76. The court concluded that double-celling of inmates and the failure to provide adequate sanitation, lighting, heating, ventilation, plumbing, exercise, visitation, medical care, and procedural safeguards, among other deficiencies, in the units was inconsistent with notions of human decency and posed serious questions regarding the CDC’s compliance with the federal and state constitutions. See id. at 1379-81. It enjoined the CDC to correct many of the deficiencies. On October 18, 1984, the court issued findings of fact and conclusions of law regarding the conditions in the SHUs at Folsom and San Quentin, and entered a permanent injunction with respect to those units. See Toussaint v. McCarthy, 597 F.Supp. 1388 (N.D.Cal.1984), aff'd in part, rev’d in part and vacated and remanded in part, 801 F.2d 1080 (9th Cir.1986). As noted above, Mr. Comer was confined in Folsom’s SHUs between September 1982 and February 1983. With respect to conditions in Folsom’s SHUs, the court found that Folsom was one of the oldest penal institutions still in use in the United States and that the majority of inmates confined to its SHUs were confined in its SHU II. See id. at 1393 n. 4. It found little natural light present in the units and the artificial lighting so dim as to make reading and writing difficult, if not impossible. See id. at 1393, • 1394, 1397. It found the noise levels, particularly in SHU II, substantially exceeded standards set for prisons, and filled the units day and night with “unrelenting, nerve-racking din,” including blaring televisions, radios, inmates shouting to one another and clanging cell doors. See id. at 1397, n. 15. It found this “unceasing racket exert[ed] a profound impact on lockup inmates, some of whom considered] it the single worst aspect of their confinement” and contributed to difficulty-sleeping and adversely affected their mental health. Id. at 1398. The court described the average cell size in SHU II as 49.5 square feet and 45.5 square feet in SHU I, with each cell furnished with one or two bunks, a coverless toilet, a sink, a shelf and a small mirror. See id. at 1394. Despite the small size of the cells, inmates were frequently double-celled and despite the double-celling, SHU inmates were nearly perpetually confined, except for sporadic exercise, showers, visitation, and hearings or medical treatment. See id. at 1393, 1401-1402. The court found it not uncommon for an inmate to remain in his cell for five or more consecutive days at a time. See id. at 1395. It further found that the prolonged idleness of SHU inmates adversely affected their mental health, see id. at 1403, and that the extensive double-celling “in the midst of the other abhorrent conditions ... engendered] tension and psychiatric problems” as well as “violence, particularly violence between cellmates.” Id. Among the “other abhorrent conditions” found by the court was inadequate heating and ventilation in SHU II and the entry of moisture through leaky roofs and overflowing sinks, toilets and showers. Id. at 1396. It found that a “putrid odor” lingered in the units because of poor ventilation. See id. It found “the plumbing and sewage disposal systems antiquated, deteriorated, and in need of replacement” and leaking toilets and sinks prevalent, which increased the damp and cold of the units. Id. It found the pipe chases behind the back walls of the cells exhibited numerous pipe leaks and sewage mains and steam water lines with accumulations of rotting garbage and human waste that fostered infestations of vermin and posed a “substantial hazard” to the health of the inmates. Id. at 1396-97. Despite these conditions, the court found that inmates were not provided with clean clothing and bedding on a regular basis or supplies to clean their cells. See id. at 1399. It also found inmates were not afforded regular access to showers and that the shower facilities were “revolting” due to accumulated filth, clogged drains and standing water. Id. It described the sanitation in the units as generally deplorable in part because inmates were instructed to throw trash onto walkways, which were infrequently cleaned, and debris clogged the gutters. See id. at 1400. The court also found SHU II infested with cockroaches, mice and rats. See id. It found the Folsom kitchen facility exhibited: (1) active infestations of rats, roaches and flies; (2) pools of standing water; (3) poor ventilation resulting in heavy deposits of grease and grime on exposed surfaces that could contaminate food; (4) exposed electrical wires; (5) unsanitary food preparation surfaces; (6) dried food residue on food preparation equipment; and (7) greasy, slippery floors. See id. at 1401. It noted that “[flood [served to SHU inmates] often arrive[d] contaminated with foreign objects such as roaches, hair, and incredibly, bits of plastic from shoes” and food preparers were sometimes directed to use spoiled cheese or meat in sandwiches which made inmates ill. Id. Finally, the court described a small number of cells in Folsom’s SHUs that had solid outside doors and no window or only a small window, which the guards, who controlled the lighting, could make completely dark for long periods of time (“quiet cells”). Id. at 1395. It is undisputed that Mr. Comer endured most, if not all and possibly worse, of these deplorable conditions while he was confined in SHUs at Soledad, DVI and Folsom. Furthermore, Dr. Terry Ku-pers, habeas counsel’s expert, was an expert witness for the plaintiffs in Toussaint and visited Folsom’s and DVI’s SHUs, and in fact, toured Folsom SHUs while Mr. Comer was confined there. (R.T. 3/27/02 at 342-43.) During his testimony in this case, Dr. Kupers synoptically corroborated the findings of the district court in Tous-saint and elaborated on certain features of Folsom’s SHUs. Dr. Kupers testified that Folsom SHUs contained “Intensive Custody Units” in which SHU inmates were confined as additional punishment and which lacked any facilities or furnishings and which were usually filthy with only a hole in the floor for a toilet, the flushing of which was controlled by the guards. (R.T. 3/26/02 at 45-46, 56.) Dr. Kupers testified that inmates placed in ICUs were almost completely isolated from others, including guards. (R.T. 3/26/02 at 46.) Based upon his review of the available CDC records and his interviews with Mr. Comer, Dr. Kupers concluded that Mr. Comer spent four or five months in a Folsom ICU. (R.T. 3/26/02 at 46.) B. Mr. Comer’s Conditions of Confinement While Incarcerated in Arizona Following his arrest in February 1987, and while awaiting and during trial, Mr. Comer was in the custody of the Maricopa County Jail. During that period, Mr. Comer was housed in a single cell twenty-four hours a day. (R.T, 3/26/02 at 50-51.) Mr. Comer reported one incident in which he asked a jail officer to loosen handcuffs that were tight, but the officer further tightened the handcuffs and raised Mr. Comer’s arms behind his back. (R.T. 3/26/02 at 51.) Mr. Comer barricaded himself in his cell, armed with a shank, when officers attempted to take him to court for sentencing. (R.T. 3/26/02 at 51-52.) He was forcibly removed and transported to court where he appeared in a wheelchair, naked except for a towel over his midriff. (Id.) A doctor for the County examined Mr. Comer and found him competent to be sentenced. Following his sentencing in April 1988, Mr. Comer was transported to Arizona’s death row then located in Cell Block 6 (“CB6”), of the Arizona State Prison in Florence, Arizona. (See R.T. 3/26/02 at 53-54.) It was there that Mr. Comer met and became friends with another death row inmate, Robert (“Bonsai” or “Banzai”) Wayne Vickers. (R.T. 3/27/02 at 352.) A few months later, Mr. Comer and Mr. Vickers were placed in SMU I, because of their disciplinary infractions in CB6, in-eluding making weapons and assaulting other inmates and staff. (R.T. 3/26/02 at 54; R.T. 3/27/02 at 353, 679-80.) Mr. Comer has reported that on one occasion while housed in SMU I, he was subjected to inverted four-point restraints, ie., he was placed in four-point restraints (shackled hands and feet) to a stiff board and then inverted with his feet above his head at about a 45"angle facing downward for several hours. (R.T. 3/26/02 at 55-56; R.T. 3/28/02 at 771, 838, 843-44.) In 1996, Mr. Comer and Mr. Vickers were moved to SMU II. (Id.) In 1997, most of Arizona’s other death row inmates were moved from CB6 to SMU II. (R.T. 3/26/02 at 54.) Mr. Comer remains confined to SMU II. He remained close friends with Mr. Vickers until Mr. Vickers’s execution on May 5,1999. For purposes of this action, the physical layout of SMU I and SMU II do not materially differ. (See R.T. 3/26/02 at 58.) SMU I is a few years older than SMU II. (Id.) Both units consist of two levels of cells which extend like spokes from an elevated central control booth. (Id.) At the end of each spoke, or pod, is an outdoor recreation area measuring twelve feet by twenty feet with high concrete walls and floors and cyclone fencing over the top. (Id. at 59.) At times relevant to this matter, Mr. Comer has been held in a single cell measuring seven feet by eleven feet. (Id. at 59.) His cell door is covered with a translucent material called Lexan, which prevents materials from being thrown out of, or into, his cell. His cells in SMU I and II have been equipped with a bunk, toilet, sink, desk and stool constructed of metal secured to the concrete walls and floors of the cell. (Id.) As noted above, Mr. Comer’s cell was modified during the summer of 2001 to remove the desk and stool and to reinforce the bunk to make it more difficult for Mr. Comer to fashion weapons. (Id.) Mr. Comer receives between an hour and an hour and a half of individual recreation three times a week. (R.T. 3/27/02 at 516, 540.) He also has the opportunity to shower three times a week. (R.T. 3/26/02 at 64; R.T. 3/27/02 at 455, 516.) In addition, Mr. Comer has access to cleaning materials. Pursuant to ADOC policy, he and other death row inmates are not permitted “contact” visits absent court order, but he is permitted non-contact visits. III. Competency In remanding this case, the Ninth Circuit found the circumstances warranting remand for an evidentiary hearing “virtually indistinguishable” from those in Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966)(per curiam). See Comer v. Stewart, 215 F.3d 910, 915—16 (2000). In Rees, a condemned Virginia inmate filed, through counsel, a certiorari petition after his federal habeas corpus petition was denied by the district court and the denial affirmed by the Fourth Circuit. See Rees, 384 U.S. at 313, 86 S.Ct. 1505. Shortly thereafter, the inmate directed counsel to withdraw the certiorari petition and forego further legal proceedings. Id. Counsel advised the Supreme Court that he could not accede to his chent’s instructions without a psychiatric evaluation of his client because evidence cast doubt on his client’s mental competency. Id. The inmate was evaluated by a psychiatrist retained by his counsel, who found Rees mentally incompetent. Id. Rees was then evaluated by psychiatrists retained by the State of Virginia who expressed doubts that he was insane. Id. The Supreme Court remanded to the district court to determine, “in aid of the proper exercise of [the Supreme Court’s] certiorari jurisdiction,” and “upon due notice to the State and ah other interested parties,” Rees’ mental competence and report back to the Court. Id. at 313-14, 86 S.Ct. 1505. Specifically, the district court was directed to: determine Rees’ mental competence in the present posture of things, that is, whether he has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. Id. at 314, 86 S.Ct. 1505. In Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Supreme Court observed that though it had used the phrase “rational choice” in Rees to describe the competence necessary to withdraw a certiorari petition, it had not indicated that phrase meant “something different from ‘rational understanding’ ” as used in Dusky v. U.S., 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Godinez, 509 U.S. at 398 n. 9, 113 S.Ct. 2680. Since Rees was decided, courts have repeatedly applied its direction to evaluate a capital inmate’s competency to waive review, but found that condemned inmates who are mentally competent may nevertheless rationally decide to waive legal review of them sentences. See Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976); Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)(“next friend” standing is not available if “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 also Brewer v. Lewis, 989 F.2d 1021, 1027 (9th Cir.1993); Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.1979). In Smith v. Armontrout, 812 F.2d 1050, 1056 (8th Cir.1987), the Eighth Circuit rejected the contention that Rees barred waiver of post-conviction review in capital cases based on the mere possibility that the inmate’s decision was the product of a mental disease, disorder or defect, citing Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir.1985), and Hays v. Murphy, 663 F.2d 1004 (10th Cir. 1981). The court determined that a literal interpretation of the portion of the Rees standard asking whether an inmate suffered from “ ‘a mental disease, disorder, or defect which may substantially affect his capacity,’ would conflict with a similarly literal interpretation of the other half of the test, which asks whether the prisoner has, rather than absolutely, certainly, or undoubtedly has, the capacity to appreciate his position and make a rational choice.” Smith, 812 F.2d at 1057. The court noted that: Though Rees recites these two portions of the standard as disjunctive alternatives, there is necessarily an area of overlap between the category of cases in which at the threshold we see a possibility that a decision is substantially affected by a mental disorder, disease, or defect, and that of cases in which, after proceeding further, we conclude that the decision is in fact the product of a rational thought process. Furthermore, we think it very probable, given the circumstances that perforce accompany a sentence of death, that in every ease where a death-row inmate elects to abandon further legal proceedings, there will be a possibility that the decision is the product of a mental disease, disorder, or defect. Yet, Rees clearly contemplates that competent waivers are possible, see also Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), and there is little point in conducting a competency inquiry if a finding of incompetency is virtually a foregone conclusion. 812 F.2d at 1057. The Smith court also rejected the petitioners’ contention that “the [district [cjourt erred by construing Rees’s requirement that Smith have the capacity to appreciate his position and to make a rational choice to require only that he be cognizant of his factual circumstances, and that his choice be logical, the product of reason” without determining whether Smith was reasoning from premises or values that were “within the pale of those which our society accepts as rational ‘because’ [ljogic employed in the service of irrational premises does not produce a rational decision.” Id. The Eighth Circuit noted that the district court “examined the rationality of the values and beliefs underlying Smith’s decision, including his aversion [to] confinement, and his conclusion that ... he [would] be unable to avoid a life sentence” and affirmed the district court’s conclusion that Smith’s decision to forego further legal review was competent. Id. at 1058,1059. Similarly, in Franklin v. Francis, the court rejected a construction of the Rees standard that first required an inquiry into the capacity of the inmate to make the waiver decision, and then, if the inmate was found to have the capacity, to require an inquiry whether the inmate was “suffering from a mental disease, disorder, or defect which may substantially affect that capacity.” 144 F.3d 429, 433 (6th Cir.l998)(quoting Rees, 384 U.S. at 313, 86 S.Ct. 1505). The Sixth Circuit concluded that Rees was stated in the alternative rather than the conjunctive: “[e]ither the condemned has the ability to make a rational choice with respect to proceeding or he does not have the capacity to waive his rights as a result of his mental disorder.” Id. (citing Demosthenes v. Baal, 495 U.S. 731, 734, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990); Whitmore, 495 U.S. at 165, 110 S.Ct. 1717). The Sixth Circuit found the “best explanation of the Rees test” in Smith v. Armontrout, 812 F.2d 1050 (8th Cir.1987), and held that because competency hearings are contemplated “incompetency is [not] a foregone conclusion.” 144 F.3d at 433 (quoting Smith, 812 F.2d at 1057); see also Lonchar v. Zant, 978 F.2d 637 (11th Cir.1992); Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.1985). Further, with respect to application of the Rees standard, many courts have simplified the inquiry by requiring a three-part analysis: (1) Is the person suffering from a mental disease or defect? (2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him? (3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options? If the answer to the first question is no, the court need go no further, the person is competent. If both the first and second questions are answered in the affirmative, the person is incompetent and the third question need not be addressed. If the first question is answered yes and the second is answered no, the third question is determinative; if yes, the person is incompetent, if no, the person is competent. Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir.1985)(footnote omitted); accord Lonchar, 978 F.2d at 641-42; Ford v. Haley, 195 F.3d 603, 615 (11th Cir.1999). Likewise, in Mason v. Vasquez, 1993 WL 204625, *3 (N.D.Cal.1993), the district court utilized Rumbaugh’s three part inquiry in determining whether a condemned inmate was competent to waive further legal review. Although not specifically addressing the district court’s application of Rumbaugh’s three-part inquiry, the Ninth Circuit affirmed the district court’s analysis, finding the inmate competent and concluding that the third-party petitioner lacked next friend standing. See Mason v. Vasquez, 5 F.3d 1220, 1224 (9th Cir.1993), aff'd vacatur of stay, 1 F.3d 964 (9th Cir.l993)(en banc), recalling en banc mandate and remanding, 5 F.3d 1226 (9th Cir.l993)(e% banc). Significantly, the Ninth Circuit also established that the district court’s findings of fact are governed by the clearly erroneous standard, and decisions regarding credibility are entitled to great deference. See Mason, 5 F.3d at 1224. This Court concludes that the three-part inquiry set forth in Rumbaugh as applied in Mason provides an appropriate framework for assessing Mr. Comer’s competency to waive further legal review of his conviction and sentence. With respect to the allocation of the burden of proof, the Ninth Circuit has held that: Initially sufficient evidence must be presented to cause the court to conduct an inquiry. After that point, it is no one’s burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition. Mason, 5 F.3d at 1225. Finally, the Ninth Circuit in this case determined before remanding it to this Court, that a presumption of competency does not apply to Mr. Comer. In accordance with Mason, this Court concludes that no party bears the burden of proof. Instead, the question is whether, giving full and fair consideration to all of the evidence, does it establish by a preponderance that Mr. Comer is competent to dismiss his habeas counsel and waive further legal review of his convictions and sentences. Adhering to this standard, the Court finds after a thorough review of all the evidence presented that Mr. Comer is competent to dismiss his habeas counsel and waive further review of his convictions and sentences. A. Mental Disease or Defect Pursuant to Rumbaugh, 753 F.2d at 398-99, the first inquiry is whether Mr. Comer is suffering from a mental disease or defect. Habeas counsel maintains that Mr. Comer suffers from depression, PTSD, and SHU syndrome. Mr. Comer, special counsel and Respondents disagree. The Court finds that Mr. Comer is not suffering from any mental disease or defect, or SHU syndrome. This determination is based primarily on the evaluations, reports, and testimony of the psychiatrists, Dr. Johnson and Dr. Kupers, the report of the psychologist Dr. Landis, and the testimony, writings, and background of Mr. Comer, but is also based on other witness testimony and all the exhibits admitted. Rule 702 of the Federal Rules of Evidence, which codified the principles of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), sets forth the requirements for the admissibility of expert testimony. No party specifically objected to the admissibility of the testimony of either psychiatrist based upon Rule 702. Thus, the Court admitted and considered all of the psychiatric testimony, but the Court finds the application of the principles of Rule 702 helpful in evaluating the reliability of the opinions of the two psychiatric experts, and their credibility. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as a expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court clarified that these principles also apply to technical and other specialized knowledge, including psychiatric testimony. See S.M. v. J.K., 262 F.3d 914, 921 (9th Cir.2001). The Supreme