Full opinion text
FERGUSON, Circuit Judge. Arizona death row prisoner, Robert Charles Comer (“Comer”), appealed the District Court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction and capital sentence for first degree murder, armed robbery, kidnapping, aggravated assault, sexual assault, and sexual abuse. Before Comer’s appeal could be heard, however, the State of Arizona (the “State”) and Comer filed motions to dismiss the appeal because Comer expressed his desire to be executed. On remand from this Court, the District Court held an evidentiary hearing and found Comer to have competently and voluntarily waived his habeas appeal right. Habeas Counsel now challenges that determination on appeal. 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. We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted. I. FACTUAL AND PROCEDURAL BACKGROUND Grime The facts of this case are deeply disturbing. Comer, his companion Juneva Willis (“Willis”), and Willis’s two children arrived at the Burnt Corral campground in Apache Lake, Arizona on February 2, 1987. The next evening, Comer invited a nearby camper, Larry Pritchard, to dine with him and Willis, and, after the meal, Comer shot him in the head. It is unclear whether Pritchard died immediately from the gunshot wound or later on. Comer later stabbed him in the neck. Comer then removed an Emergency Medical Technician (“EMT”) badge from Pritchard’s pocket, and Willis hid Pritchard’s body by covering it with wood. After the murder, Comer and Willis drove to Pritchard’s campsite, where they stole a number of Pritchard’s belongings, as well as his dog. Comer and Willis then proceeded to the campsite of Jane Jones and Richard Smith, campers whom they had met earlier that day. Remembering from their earlier encounter that Jones and Smith were in possession of a small quantity of marijuana, Comer and Willis posed as “Arizona Drug Enforcement” officers, and ordered them out of their tent at gunpoint. Comer flashed the EMT badge and then tied up Jones and Smith with wire and duct tape. He put them in their truck and stole several items from their tent. Comer then drove Jones’s and Smith’s truck, while Willis followed behind in his. After a short time, Willis stopped following Comer. When Jones asked to relieve herself, Comer permitted her to do so but accompanied her into the woods and sexually assaulted her. He then sexually assaulted her again in front of the truck. Comer threatened to kill Smith but Jones convinced him not to do so. Comer instead left Smith in the woods and drove off with Jones. When the truck ran out of gas, Comer and Jones walked back to Willis, and the three of them then drove together, along with Willis’s two children. During this journey, Comer shot and killed Pritchard’s dog, and sexually abused Jones twice more. Jones managed to escape while Comer was fixing his truck. She was later picked up by a passing motorist and taken to the sheriffs home. Smith, too, had managed to walk back to the Burnt Corral campground and had reported the incident to the Department of Public Safety. The police quickly apprehended Comer and Willis. Charges Comer and Willis were charged in Mari-copa County with the first degree murder and armed robbery of Pritchard and the armed robbery, kidnapping, and aggravated assault of Jones and Smith. In addition, Comer was charged with two counts of sexual abuse and three counts of sexual assault of Jones. Willis subsequently pled guilty to one count of kidnapping in exchange for agreeing to testify against Comer. The other charges against her were dropped. Convictions and Sentence Comer was absent from the courtroom throughout his 1988 state trial for capital murder. After seven days of hearing evidence, a jury found Comer guilty on all counts. Comer was physically present in the courtroom for the first time on the day of his sentencing. He was shackled to a wheelchair and, except for a cloth draped over his genitals, he was naked. His body was slumped to one side and his head drooped toward his shoulder. He had visible abrasions on his body. After asking both the court deputy and a prison psychiatrist whether Comer was conscious, the state trial judge sentenced him to death for the murder of Pritchard and to aggravated, consecutive terms of imprisonment for the other offenses. On direct appeal, the Arizona Supreme Court affirmed the convictions and sentence. Comer, 799 P.2d at 350. State Post-Conviction Relief On October 24, 1991, Comer filed a petition for post-conviction relief in state court challenging the constitutionality of his conviction and sentence. On November 10, 1992, the superior court denied the petition on the ground that Comer’s claims were largely precluded and waived. The Arizona Supreme Court denied the petition for review on September 21, 1993, and the U.S. Supreme Court denied the petition for certiorari on April 4,1994. Federal Habeas Corpus Petition On July 19, 1994, Comer filed a federal habeas corpus petition with the District Court of Arizona. He later filed an amended petition on March 16, 1995. On August 2, 1996, the District Court found that Comer had procedurally defaulted on all his habeas claims except Claims I, II, 111(A), 111(B)(1), III(C) (in part), V(A), V(B), XIII, XX(C)(4), and XX(D), which largely concerned errors at trial and ineffective assistance of defense counsel. The District Court considered the merits of these claims and, on November 20, 1997, denied Comer’s habeas petition. Appeal to this Court On February 18, 1998, Comer filed a timely notice of denial of his habeas petition. This Court has jurisdiction to hear Comer’s appeal pursuant to 28 U.S.C. § 2253. Intervening Motion to Dismiss Appeal After filing his appeal, Comer sent letters to the State Attorney General and to the state trial judge stating that he no longer wanted his appeal to be heard and expressing his desire to die. In light of these letters, the State moved to dismiss Comer’s appeal contending that this Court lacked jurisdiction to determine any aspect of the case. Comer himself also filed a pro se motion to dismiss his appeal. Comer’s originally appointed counsel — now Habeas Counsel — opposed both the State’s and Comer’s motions and asked this Court to order a procedure to determine the validity of Comer’s appeal. On September 18, 2000, the District Court appointed Special Counsel to represent Comer concerning his decision to end his appeals and proceed to execution. Evidentiary Hearing This Court subsequently decided to vacate the date for oral argument on the merits of Comer’s appeal and held the motion to dismiss Comer’s appeal in abeyance until the District Court held an evi-dentiary hearing on the separate questions of whether Comer was competent to terminate representation by counsel and waive legal review and, if so, whether his conditions of confinement rendered those decisions voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000). Pursuant to our order, the District Court conducted an evidentiary hearing in March 2002. Following extensive discovery and a three-day hearing, the District Court found in a 90-page opinion that Comer was competent to waive his habeas appeal right and that his waiver was made voluntarily. Habeas Counsel appealed the District Court’s judgment to this Court. We delayed issuing a briefing schedule until the Supreme Court decided Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), did not apply retroactively to cases already final on direct review). II. DISCUSSION A. The Waiver’s Validity 1. Background We asked the District Court to hold an evidentiary hearing to determine whether Comer competently waived his habeas appeal right. Pursuant to our order, the District Court suggested to both parties that a neutral expert evaluator be appointed to assess Comer’s competency at the time he waived his habeas appeal right, and that the parties confer and suggest candidates. The District Court allowed both parties to have access to every place Comer had lived while incarcerated. The parties submitted proposed findings of fact and conclusions of law, and both parties were allowed to object to each other’s proposed findings and conclusions. The District Court thus ostensibly undertook comprehensive steps to ensure an adequate factual determination of Comer’s competency at the time he waived his habeas appeal right. The question before the District Court was whether, giving full and fair consideration to all of the evidence, it could be established by a preponderance of the evidence that Comer is competent to waive further legal review of his convictions and sentences. Specifically, we directed the District Court to determine “whether [Comer] 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.” Comer, 215 F.3d at 917 (quoting Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (per curiam)). In arriving at this determination, the District Court reviewed evaluations, reports, testimony from two psychiatrists and one psychologist, Comer’s personal background, and other witness testimony and exhibits to conclude that Comer did not suffer from mental disease or defect. See Comer, 230 F.Supp.2d at 1061. 2. Analysis a. Competency The District Court’s determination as to whether Comer was competent to waive his habeas appeal right is a strictly factual one that we accept unless clearly erroneous. Massie ex rel. Kroll v. Wood-ford, 244 F.3d 1192, 1194 (9th Cir.2001) (citing Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990)). The District Court rendered several preliminary determinations to come to its conclusion that Comer was competent when he waived his habeas appeal right. We analyze each preliminary determination here briefly to assess whether or not it was clearly erroneous. First, the District Court determined that its own court-appointed expert, Dr. Sally Johnson, was significantly more qualified to render a competency opinion than Habeas Counsel’s expert, Dr. Terry Krupers. Comer, 230 F.Supp.2d at 1039. The Court based this determination on evidence as to the experts’ qualifications, in particular on the fact that, unlike Dr. Johnson, Dr. Krupers had never engaged in a forensic evaluation to determine the competency of an inmate to be executed nor previously conducted a forensic evaluation of an inmate sentenced to death who wanted to dismiss his appeal. Id. Moreover, the Court found Dr. Johnson’s investigation to be thorough and her questions especially relevant. Id. at 1040. Given the clear difference in expert qualifications between Dr. Johnson and Dr. Krupers, as well as Dr. Johnson’s relatively superior investigation, the Court did not clearly err in affording greater weight to Dr. Johnson’s opinions. Second, the District Court determined that Comer did not suffer from Major Depressive Disorder. The Court based this determination on the accuracy of Dr. Johnson’s differential diagnoses of Comer’s various apparent depressive episodes. Specifically, with respect to Comer’s first apparent depressive episode in May 1999, the Court found as credible Dr. Johnson’s attempt to distinguish the differential diagnosis of bereavement from the symptoms that Dr. Krupers attributed to a major depressive episode. See id. at 1042-43. With respect to Comer’s second apparent depressive episode in Spring 2001, the Court found as credible Dr. Johnson’s attempt to distinguish the differential diagnosis of a general medical condition from the symptoms that Dr. Krupers attributed to a second major depressive episode. See id. at 1043-44. Finally, with respect to Comer’s apparent bouts of depression between his two purported episodes, the Court found as credible Dr. Johnson’s explanation that Comer sought attention by narrating his feelings and that he did not deny his symptoms of depression, as Dr. Krupers had argued. See id. at 1047-48. Given the failure of Dr. Krupers to assess possible differential diagnoses for Comer’s apparent depressive episodes, and the confidence with which Dr. Johnson attested to such diagnoses, the District Court did not clearly err in concluding that Comer did not suffer from Major Depressive Disorder. Third, the District Court determined that Comer did not suffer from Post-Traumatic Stress Disorder (“PTSD”). The Court based this determination on Dr. Krupers’s inability to apply accurately the DSM-IV criteria for PTSD. In particular, the Court questioned Dr. Krupers’s failure to identify credible evidence with respect to the third group of PTSD symptoms related to “increased arousal.” Id. at 1052. According to the Court, Dr. Krupers needed to establish with sufficient certainty that Comer suffered from two or more of the following symptoms related to “increased arousal”: (1) difficulty falling or staying asleep; (2) irritability or outbursts of anger; (3) difficulty concentrating; (4) hypervigilance; and (5) exaggerated startle response. Id. Dr. Krupers, however, merely speculated that “most prisoners in [Comer’s] situation” would have difficulty falling asleep and failed to rebut Dr. Johnson’s and Comer’s testimony as to factors (4) and (5). Id. While it is unclear from the Court’s opinion just how narrowly the DSM-IV criteria for PTSD are defined, the District Court did not clearly err in dismissing as unspecific Dr. Krupers’s factual applications of the criteria to Comer’s symptoms. Lastly, the District Court determined that Comer did not suffer from Segregated Housing Unit (“SHU”) syndrome. The Court based this determination on Dr. Johnson’s and Comer’s testimony contradicting Dr. Krupers’s findings concerning SHU syndrome. Id. at 1057. The Court identified and accepted the following characteristic symptoms of SHU syndrome: massive free-floating anxiety, hyperresponsiveness, derealization, difficulty with concentration and memory, acute confusional states, ideas of reference and persecutory idealation (paranoia), and compulsion. Id. at 1056. The Court then affirmed Dr. Johnson’s findings that Comer did not exhibit these symptoms at all or at least not to the level necessary to make an adequate showing of SHU. See id. at 1057. Of particular importance to the District Court was Dr. Johnson’s prior work with patients in segregated housing units and the fact that Comer’s own testimony did not corroborate Dr. Krupers’s findings. Id. Even though Dr. Krupers was qualified to offer his opinion on the disorder, he did not have prior experience in diagnosing or treating inmates who suffered from SHU syndrome in the way that Dr. Johnson had. While this fact alone does not render Dr. Johnson’s findings more accurate than Dr. Krupers’s, it does make it more difficult to find the Court’s determination that Comer did not have SHU syndrome to be clearly erroneous, particularly since there are no rigorous DSM-IV criteria for diagnosing SHU syndrome. See id. at 1055. In sum, the District Court’s preliminary determinations are not clearly erroneous, demonstrating that the Court did not clearly err in determining that Comer competently waived his habeas appeal right. b. Voluntariness We review de novo the District Court’s determination that Comer voluntarily waived his habeas appeal right. See United States v. Amano, 229 F.3d 801, 803 (9th Cir.2000). We directed the District Court to determine “whether [Comer’s] purported decision [to waive further legal review] is voluntary” and “whether [Comer’s] conditions of confinement constitute punishment so harsh that he has been forced to abandon a natural desire to live.” Comer, 215 F.3d at 917. The District Court determined that Comer’s waiver was voluntary and that the conditions of his confinement “have not had a substantial effect nor have they rendered his decision involuntary.” Comer, 230 F.Supp.2d at 1071. We previously summarized the legal standard to determine voluntariness of waiver: The Supreme Court has held that a waiver of a petitioner’s “right to proceed” is not valid unless, among other factors, it is “knowing, intelligent, and voluntary.” Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (emphasis added). “A waiver is voluntary if, under the totality of circumstances, [it] was the product of a free and deliberate choice rather than coercion or improper inducement.” United States v. Doe, 155 F.3d 1070, 1074 (9th Cir.1998). Put differently, a decision is involuntary if it stems from coercion — either mental or physical. See, e.g., Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Indeed, courts have recognized that a decision to waive the right to pursue legal remedies is involuntary if it results from duress, including conditions of confinement. See, e.g., Smith v. Armontrout, 812 F.2d 1050, 1058-59 (8th Cir.1987) (reviewing for error the district court’s determination on whether petitioner’s particular conditions of confinement rendered his decision to waive appeals involuntary); ... Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 961 (M.D.Tenn.1984) (“In the judgment of this Court, the conditions of confinement inflicted on Mr. Harries are so adverse that they have caused him to waive his post-conviction remedies involuntarily”). Comer, 215 F.3d at 917-18. From the record, it is clear that Comer’s waiver was a “product of a free and deliberate choice.” Doe, 155 F.3d at 1074. At the evidentiary hearing, Comer clearly expressed his willingness to withdraw his appeal in spite of the fact that Habeas Counsel informed him that his appeal had a strong prospect of success (“Julie [Hall] came down and said I had some real good merits in my case and that we were in the Ninth Circuit.”). Special Counsel fully informed Comer that he could possibly receive a new sentence or a new trial, or even be found not guilty, if his appeal were to be heard. Special Counsel further informed Comer that it would be much tougher for the State to retry him because of the amount of delay in the proceedings. Moreover, Special Counsel informed Comer that he would not be able to change his mind once he waived his habeas appeal (“[Special Counsel]: Do you understand that if you are allowed to drop your appeal that you may not be allowed to reinstate it afterwards if you change your mind? [Comer]: Yes, sir”). Perhaps most significantly, the District Court itself made clear to Comer that his decision to waive his appeal was his own and would necessarily result in his death. Despite all this, Comer repeatedly stressed how he understood the significance and consequences of withdrawing his appeal, and nevertheless wanted to do so. See, e.g., (“I, in my heart, have not appealed [the denial of my habeas petition]. I never appealed any of this.”). From the record, it is also clear that Comer’s waiver was not “improperly] induced” based on the conditions of his confinement. Doe, 155 F.3d at 1074. First, Comer’s own violent actions in prison have contributed to his continued confinement in restrictive conditions. Both Dr. Johnson’s and Dr. Krupers’s clinical evaluations make this apparent. Dr. Johnson reports: Review of Mr. Comer’s behavioral infractions (incident reports) over the last 13 years shows numerous major and minor violations. He had approximately a dozen violations for possession and manufacture of a weapon. In almost all cases this involved the making of shanks or knives. On at least two occasions he set fires in his cell.... He had several violations for destruction of property or tampering with equipment . -... On one occasion he was involved in an actual attempted assault on another individual (another inmate). [Comer] has gradually, as the result of his behavior, developed a reputation within the Arizona DOC as being their highest security risk and most dangerous inmate. His intermittent manufacture of weapons and periodic impulsive verbal responses that are perceived as threatening, make it unlikely that he would succeed in changing the perception of the DOC about his degree of dangerousness in the foreseeable future. He personally verbalizes his own opinion that the extra security precautions are warranted in his case and takes some enjoyment in persistently attempting to succeed in circumventing security interventions made by the DOC. Dr. Krupers reports: Mr. Comer feels compelled, as a symptom of his mental disorder, to continually manufacture [metal] shanks; his doing so gives the DOC a rationale for requiring he live in ever more restrictive conditions; and the extremity of his conditions of confinement in turn exacerbate the mental disorder that is reflected (in part) in the compulsion to manufacture shanks .... [Comer’s] psychologically compelled behaviors, to wit shank-manufacturing and threatening staff, prevent him from gaining even modest improvements in his actual conditions of confinement. Based on Comer’s own willful and violent actions, it is difficult to see how the State acted improperly in placing him in maximum confinement and, more importantly, how his conditions of confinement have improperly coerced him into waiving his appeal. Second, the conditions of Comer’s confinement in the Arizona Department of Corrections (ADOC) Special Management Unit (SMU) II, while certainly harsh, are no more restrictive than the conditions of his confinement in SMU I and California’s Folsom Prison, nor are they unique to Comer. Comer himself estimates that his one-person prison cell in SMU II is twice as large as his two-person cell in Folsom (“[I]f you took my cell right now and cut it in half, it would still be bigger than our cells at Folsom, and at Folsom we had two people sitting in there”). He further notes that SMU II is more clean, easier to see in and out of, quieter, and less dangerous than Folsom or SMU I. SMU II is “heaven” compared to “Folsom” with “much nicer ... conditions of confinement.” Comer references how other inmates were confined in “supermax units” at SMU II and how they posed equally as high a security risk as Comer. He defines his conditions of confinement in the context of what he and his fellow inmate, Robert Wayne Vickers (“Bonzai”), had coming to them (“You had me and Robert Wayne Vickers, Bonzai. We earned everything we got there [at SMU II], man, that’s how we got there”). Thus, because Comer’s waiver was “the product of a free and deliberate choice rather than coercion or improper inducement,” Doe, 155 F.3d at 1074, the District Court did not err in determining that Comer voluntarily waived his habeas appeal right. B. The Waiver’s Constitutionality A capital defendant’s waiver of appeal requires particularly careful scrutiny. Generally, “[w]e lack jurisdiction to entertain appeals where there was a valid and enforceable waiver of the right to appeal.” United States v. Jeronimo, 398 F.3d 1149, 1152-53 (9th Cir.2005). However, “because there is a qualitative difference between death and any other permissible form of punishment, ‘there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” Zant v. Stephens, 462 U.S. 862, 884-85, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII (emphasis added). Its protections apply to the states through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). “[T]he death penalty has been treated differently from all other punishments” insofar as it cannot be “imposed without the serious and calm reflection that ought to proceed any decision of such gravity and finality.” Thompson v. Oklahoma, 487 U.S. 815, 856, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (O’Con-nor, J., concurring). For a death sentence to be constitutional, the Eighth Amendment requires that the sentence be imposed in a non-arbitrary fashion. See Gregg v. Georgia, 428 U.S. 153, 188, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Permitting a state to execute a capital defendant without a full adjudication of his previously filed federal habeas appeal amounts to an Eighth Amendment violation. The “[Supreme] Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U.S. 738, 749, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Meaningful appellate review clearly includes review on direct appeal. See Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (“[Djirect appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception.”). But “significant evidence ... demonstrates that the meaningful appellate review necessary in a capital case extends beyond the direct appellate process.” Murray v. Giarratano, 492 U.S. 1, 24, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (Stevens, J., dissenting). Especially vital is meaningful appellate review of a capital defendant’s habeas petition. “The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). The writ demonstrates “Congress’ expressed interest in providing a federal forum for the vindication of the constitutional rights of state prisoners.” Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Habeas corpus is “not a ‘static, narrow, formalistic remedy,’ but one which must retain the ‘ability to cut through barriers of form and procedural mazes.’ ” Murray v. Carrier, 477 U.S. 478, 501, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (Stevens, J., concurring) (citation omitted). Its “central concern” is “fundamental fairness.” Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Indeed, of the 599 federal habeas petitions submitted from 1973 to 1995 challenging the constitutionality of death sentences, 237 of them were granted, or nearly 40%. James Liebman, A Broken S Ystem: Error Rates In Capital Cases, 1973-1995, E-5 (1995). Between 1976 and 1983, approximately 70% of capital defendants who had been denied federal habeas relief in district court prevailed in federal courts of appeal. Whitmore, 495 U.S. at 170-71,110 S.Ct. 1717 (Marshall, J., dissenting). Ha-beas review, therefore, significantly increases the reliability of a death sentence. In contrast, allowing a defendant to arbitrarily waive such review, once it has been properly initiated by the defendant and the reviewing court has been presented with briefs that demonstrate the defendant’s conviction or sentence may indeed be unconstitutional, violates the Eighth Amendment. The defendant is not taking his own life, he is coopting the power of the state’s capital punishment system to kill — a power that must only be wielded in accordance with the Constitution’s fundamental protections. The people’s interest in justice, which forms the basis of the state’s power to execute, should not be so easily commandeered. The right to die is not synonymous with the right to kill. Comer once felt strongly about his federal habeas claims. His own attorneys— then habeas counsel — filed briefs that alerted this panel to potentially serious constitutional violations that occurred during Comer’s trial and sentencing proceedings. To pretend these claims have gone away is to permit the state to execute a man who has been sentenced wrongfully. The state should not be able to execute an illegally convicted or sentenced person. As the Pennsylvania Supreme Court so eloquently counseled: [W]hile a defendant may normally make an informed and voluntary waiver of rights personal to himself, his freedom to do so must give way where a substantial public policy is involved; in such a case an appeals court may feel fully warranted in seeking to reach an issue .... Because imposition of the death penalty is irrevocable in its finality, it is imperative that the standards by which that sentence is fixed be constitutionally beyond reproach____[T]he waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 181 (1978) (internal citations omitted). To allow a defendant to choose his own sentence introduces unconscionable arbitrariness into the capital punishment system. See Massie v. Sumner, 624 F.2d 72, 74 (9th Cir.1980). Permitting such waiver allows the defendant, not the justice system with its attendant procedural safeguards, to determine whom the state will execute. Comer seeks death, yet the errors in his sentencing hearing prevent us from knowing if he is a member of that narrow class of individuals that the state is permitted to execute. See Gregg, 428 U.S. at 189, 96 S.Ct. 2909. Indeed, “the waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue — the propriety of allowing the state to conduct an illegal execution of a citizen.” McKenna, 383 A.2d at 181. We cannot abdicate our judicial and societal duty to preserve the sanctity of the Eighth Amendment from such violation. Federal appellate review of a capital defendant’s federal habeas petition is a vital protection against such arbitrary and inconsistent infliction of the death penalty. We note that limiting a defendant’s ability to unilaterally waive constitutional safeguards is not without precedent. For example, the Supreme Court upheld a rule that does not allow a defendant to waive his right to a jury trial without the consent of the court and of the prosecution. See Singer v. United States, 380 U.S. 24, 34-35, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) (“The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.”). Nor may an accused assert a right to plead guilty to any criminal charge, and thereby waive his right to a jury trial, absent a determination of a factual basis for the plea. See FED. R. CRIM. P. 11(b)(3); McCarthy v. United States, 394 U.S. 459, 466-67, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The McCarthy Court recognized that a defendant should not be allowed to determine whether he is convicted of a crime, by pleading guilty, if “his conduct does not actually fall within the charge.” Id. at 467, 89 S.Ct. 1166. Similarly, Comer should not be allowed to sentence himself to death if the state has not properly fulfilled its obligation to determine who falls within the narrow class of individuals who deserve capital punishment. This Circuit has already implicitly recognized the correctness of our position. In Landrigan v. Schriro, we ignored the defendant’s attempt to waive his pending ha-beas appeal. 441 F.3d 638, 653 n. 2 (9th Cir.2006) (en banc) (Bea, J., dissenting). Instead, in an en banc proceeding, we held that Landrigan may have received ineffective assistance of counsel during his sentencing hearing and remanded for an evi-dentiary hearing to develop the facts of the claim. Id. at 650. Thus, in spite of Comer’s valid waiver, we must review the merits of his habeas claims on appeal. To do otherwise, and allow Comer to be executed despite the infirmities in his sentence, would be to deny him the dignity of being treated fairly and justly by a state that claims the power of life and death over his person. The dissent contends that review of the Eighth Amendment claim before us is foreclosed by Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). However, the Gilmore Court never addressed the constitutional claim presented by the petitioner, namely whether a state must provide mandatory appellate review of a capital defendant’s conviction and sentence despite the defendant’s desire to waive such review. See Gilmore, 429 U.S. at 1017, 97 S.Ct. 436 (“The question ... [of whether] Gilmore is ‘unable’ as a matter of law to waive the right to[meaningful] state appellate review ... simply is not before us.”). In Gilmore, the Court’s holding turned on the petitioner’s lack of standing. Id. at 1014, 1016-17, 97 S.Ct. 436. In that case, convicted defendant Gary Mark Gilmore directed his attorneys not to appeal his conviction or sentence and to withdraw an appeal that had previously been filed without his consent, by appointed trial counsel. Id. at 1015, n. 4, 97 S.Ct. 436. However, four days before Gilmore’s scheduled execution, his mother, Bessie Gilmore, filed an application for a stay of execution, claiming to be acting as her’s son’s “next friend.” Id. at 1013, 97 S.Ct. 436. Mr. Gilmore, by and through his attorneys, then filed a response, challenging his mother’s standing. A next friend is one who appears on behalf of a party “unable, usually because of mental incompetence or inaccessibility, to seek relief [himself.]” Whitmore, 495 U.S. at 162, 110 S.Ct. 1717 (citations omitted). A “necessary condition for ‘next friend’ standing in federal court is a showing by the proposed ‘next friend’ that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.” Id. at 165, 110 S.Ct. 1717. The majority in Gilmore held that Mr. Gilmore had “made a knowing and intelligent waiver of any and all federal rights he might have asserted,” and therefore did not consider the substance of the claims his mother had raised as his next friend. Id., at 1013, 97 S.Ct. 436. Whitmore, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135, is another case, similar to Gilmore, that may at first appear relevant but is actually inapposite. In Whitmore, Jonas Whitmore sought to challenge the validity of the sentence imposed on fellow death row inmate Ronald Simmons, who had knowingly, intelligently, and voluntarily chosen to appeal neither his conviction nor his sentence. Id. at 151, 110 S.Ct. 1717. The Supreme Court ruled that Whitmore lacked standing, and dismissed the petition for lack of jurisdiction. Id. at 165-66, 110 S.Ct. 1717. Notably, neither Gilmore nor Whitmore was decided without significant dissenting opinions: When a capital defendant seeks to circumvent procedures necessary to ensure the propriety of his conviction and sentence, he does not ask the State to permit him to take his own life. Rather, he invites the State to violate two of the most basic norms of a civilized society— that the State’s penal authority be invoked only where necessary to serve the ends of justice, not the ends of a particular individual, and that punishment be imposed only where the State has adequate assurance that the punishment is justified. The Constitution forbids the State to accept that invitation. Whitmore 495 U.S. at 173, 110 S.Ct. 1717 (Marshall, J., dissenting, joined by Brennan, J.); See Gilmore, 429 U.S. at 1018, 97 S.Ct. 436 (White, J., dissenting, joined by Marshall and Brennan, J.) (“[T]he consent of a convicted defendant ... does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment.”). But the remaining Justices in both cases expressly stated that they were not reaching the issues addressed in the dissents. In Gilmore, 429 U.S. at 1017, 97 S.Ct. 436 (J. Stevens, concurring, joined by J. Rehnquist), Justice Stevens’s concurrence described Bessie Gilmore’s petition as one of a “third party [who] has no standing to litigate an Eighth Amendment claim or indeed any other claim on [the defendant’s] behalf.” Justice Berger stated that the question raised in Justice White’s dissent was not before the Court. Id. at 1017, 97 S.Ct. 436 (J. Burger, concurring, joined by J. Powell). Similarly, in Whitmore, 495 U.S. at 151, 155, 110 S.Ct. 1717 (internal quotations and punctuation omitted), Justice Rehnquist explained: This case presents the question whether a third party has standing to challenge the validity of a death sentence imposed on a capital defendant who has elected to forgo his right of appeal to the State Supreme Court.... Our threshold inquiry into standing “in no way depends on the merits of the petitioner’s contention that particular conduct is illegal,” ... and we thus put aside for now WThit-more’s Eighth Amendment challenge!.] Comer’s case is different. Comer himself initiated his current appeal and properly stands before this court in his own right. Comer began the present federal habeas proceedings by filing with the District Court a preliminary petition for writ of habeas corpus, an application for appointment of counsel, and a request for a stay of execution. As a majority of this panel previously pointed out in its published opinion: [Comer] signed the pleading himself, in which he described the procedural history of his case and alleged that, “I am being held in violation of my federal constitutional rights.” [He] specifically requested that the district court appoint Peter J. Eckerstom, his current counsel, and John R. Hannah, Jr., of the Law Offices of the Federal Public Defender in Arizona, to represent him. He also asked the court to both provide his attorneys with sufficient time to file an amended petition and to grant a stay of execution. In support of his request for the appointment of counsel, he signed an affidavit attesting to his indigence. When Mr. Comer returned to state court with his federal constitutional claims, he personally verified the petition and repeated that he had given his consent to his counsel to proceed. He stated on that form that the petition contained every ground of which he was aware for granting a writ of habeas corpus. Further, he wrote that “Peter J. Eckerstrom is authorized to represent me in this matter. The pleadings he has already filed are authorized by me.” Comer, 215 F.3d at 912. Comer himself filed opening and reply briefs in this Court “rais[ing] serious questions about the constitutionality of his conviction and sentence.” Comer, 215 F.3d at 912. In contrast, Gilmore never chose to appeal. Gilmore, 429 U.S. at 1015, n. 4, 97 S.Ct. 436. We exercised 28 U.S.C. § 2253 jurisdiction over Comer’s habeas petition in 2000, and oral argument pertaining to the merits of his claims had been scheduled prior to the filing of any motion to dismiss the appeal. The State’s and Habe-as Counsel’s briefs concerning the merits of Comer’s habeas petition are today pending before this Court. We now decide a question left unanswered by the Supreme Court: whether the Constitution permits a state to execute a capital defendant who wants to die but whose properly filed federal habeas appeal has not yet been substantively reviewed. We answer this question in the negative. C. Comer’s Habeas Claims 1. Standard of Review Because Comer filed his federal habeas petition in 1994, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply to his petition. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We therefore apply pre-AEDPA standards of review. Woodford v. Garceau, 538 U.S. 202, 205, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under these standards “state court judgments of conviction and sentence carry a presumption of finality and legality and may be set aside only when a state prisoner carries his burden of proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir.2005) (en banc). We review de novo the District Court’s denial of habeas relief. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). 2. Exhaustion a. Federal Standard Consistent with our pre-AEDPA standard, habeas relief shall not be granted unless it appears that a petitioner has exhausted state remedies “or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254(b) (1994). For us to pass on the merits of a constitutional claim, that claim must first have been “fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (internal quotation marks and citation omitted); Casey v. Moore, 386 F.3d 896, 911 (9th Cir.2004). Even if a petitioner fails to raise a constitutional claim in state court, the exhaustion requirement may be satisfied, allowing us to address the claim on its merits, where the state court itself exhausts the claim. In particular, where a state court is required to review the record for federal constitutional error, the state court’s determination that there was no error constitutes sufficient state consideration of a constitutional claim, which impliedly exhausts that claim in a way that is not independent of federal law. See Ake v. Oklahoma, 470 U.S. 68, 74-75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Beam v. Paskett, 3 F.3d 1301, 1306-07 (9th Cir.1993), overruled on other grounds by Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir.1999). A state court’s automatic review process does not necessarily exhaust all federal constitutional claims. See Poland v. Stewart, 117 F.3d 1094, 1105-06 (9th Cir.1997) (distinguishing Arizona’s fundamental error review provision as not providing implied exhaustion of otherwise precluded constitutional claims). Rather, only those claims that the state court is specifically required to review are exhausted on the merits by that review. Id. at 1106. In Beam, we construed the Idaho Supreme Court’s automatic review of death sentences as impliedly exhausting constitutional claims not raised by the capital defendant on direct appeal in state court. 3 F.3d at 1306-07. Because the Idaho Supreme Court “ha[d] an affirmative duty to review the entire record in a capital case to determine ... whether ‘the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor[,]’ [t]he state court must [have] considered] possible errors in sentencing that [were] not raised by the defendant.” Id. (internal citation omitted). The Idaho Supreme Court’s decision to affirm Beam’s death sentence necessarily included an “antecedent determination of federal law.” Id. at 1307. Thus, Beam’s challenge to the constitutionality of the use of an aggravating factor during sentencing was not procedurally defaulted. Id. b. Arizona Supreme Court’s Independent Review of Capital Cases As in Beam, we look both to Arizona’s statutes and its case law to determine the parameters of Arizona’s independent review of capital cases. “In capital cases,[the Arizona Supreme Court] independently examine[s] the record to determine the existence of aggravating and mitigating circumstances and the propriety of imposing the death penalty.” Comer, 799 P.2d at 348 (Ariz.1990) (emphasis added). This independent review specifically encompasses review of the sentencing hearing and record as well as aggravating and mitigating circumstances to ensure, among other things, that “proper procedures were followed.” State v. Hill, 174 Ariz. 313, 848 P.2d 1375, 1388 (1993) (citation omitted) (reviewing whether the sentencing judge had an impermissible conflict that required his recusal, as well as aggravating and mitigating circumstances); accord State v. Stuard, 176 Ariz. 589, 863 P.2d 881, 896-97 (1993) (undertaking a “painstaking” examination of the record to determine if the death penalty was erroneously imposed); State v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1206 (1993); see also State v. Watson, 129 Ariz. 60, 628 P.2d 943, 946 (1981) (noting that the Arizona Supreme Court painstakingly reviews death sentences to ensure the punishment is not inflicted in an arbitrary and capricious manner). The Arizona Supreme Court also ensures that the death penalty was not “imposed under the influence of passion, prejudice, or any other arbitrary factors.” State v. Richmond, 114 Ariz. 186, 560 P.2d 41, 51 (1977), overruled on other grounds by State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992); accord State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865, 871 (1982). This independent review process includes scrutiny of federal constitutional claims. State v. Brewer, 170 Ariz. 486, 826 P.2d 783, 790-91 (1992) (undertaking independent review because, among other matters, the Arizona Supreme Court must determine that under the Eighth and Fourteenth Amendments the death penalty is not being inflicted in an arbitrary and capricious fashion). As the Arizona Supreme Court noted in explaining its review, “[i]f the record reveals that the trial court, for whatever reason, improperly sentenced a defendant to death, we must overturn that sentence.” Id. at 791 (emphasis added). c. Comer’s Impliedly Exhausted Habe-as Claims The District Court found seven of Comer’s present habeas claims to be procedurally defaulted because Comer failed to raise them in state court. As explained below, however, under the Arizona Supreme Court’s independent review process, four of these seven claims were impliedly exhausted; therefore, we may address the merits of those claims. The preceding discussion makes clear that during its independent review, the Arizona Supreme Court examines the entire record, particularly the sentencing hearing, to determine if any procedural errors occurred or other arbitrary factors influenced the sentencing court’s decision to impose the death sentence. The Arizona Supreme Court is clearly conscious of its duty to respect the dictates of the Eighth and Fourteenth Amendments and to ensure that the death penalty is not imposed in an arbitrary and capricious fashion. Four of the claims Comer initially presented to the District Court (Claims VIII, IX, X, and XI) relate to the procedural conduct of his sentencing hearing, and directly implicate Eighth and Fourteenth Amendment protections against the arbitrary imposition of the death penalty. These claims were also readily apparent from the record that the Arizona Supreme Court painstakingly reviewed. Cf. Falcone v. Stewart, 120 F.3d 1082, 1084 n. 2 (9th Cir.1997) (constitutional claims that are “readily apparent from the record” fall under the penumbra of the automatic review process), vacated on other grounds, 524 U.S. 947, 118 S.Ct. 2364, 141 L.Ed.2d 732 (1998). Therefore, we hold that they were impliedly exhausted, on their merits, by Arizona’s independent review of Comer’s capital case. We examine the implied exhaustion of each of these penalty-phase claims in turn. First, Comer claims that the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights by not determining his competency during the sentencing hearing, and not following a statutorily required procedure at a post-sentence competency hearing (Claim VIII). Comer’s compromised physical and mental condition during sentencing is readily apparent from the record that was presented to the Arizona Supreme Court. That record included a transcript of the sentencing hearing, which begins with the very question of whether Comer is even conscious. This question arose because Comer was presented to the court nearly naked, shackled to a wheelchair, with his head slumped to the side, and bleeding from a head wound. A videotape of the sentencing, demonstrating Comer’s condition, was also before the Arizona Supreme Court. Furthermore, the record included a transcript of the post-sentencing competency hearing, held the next day, in which Comer’s competency during sentencing was explicitly discussed. These transcripts and videotape gave ample notice to the Arizona Supreme Court that Comer’s competency was of concern during the sentencing hearing. Additionally, to sentence a defendant while he is incompetent is a federal due process violation. See Sailer v. Gunn, 548 F.2d 271, 273-74 (9th Cir.1977); see also Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The Arizona Supreme Court’s decision not to address this constitutional issue during its independent review was an implicit rejection of any error. Second, Comer claims that the conduct of the post-sentence competency hearing in his absence violated his Sixth, Eighth, and Fourteenth Amendment rights (Claim IX). Again, Comer’s absence from the post-sentence hearing is readily apparent from the transcripts. A defendant has a constitutional right to be present at any critical stage of his prosecution, including at capital sentencing hearings, see Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and hearings to determine the defendant’s competency, see Sturgis v. Goldsmith, 796 F.2d 1103, 1108 (9th Cir.1986). Thus, by failing to address this issue, the Arizona Court again impliedly rejected any error. Third, Comer claims his sentencing while unclothed and semi-conscious violated the due process clause of the Fourteenth Amendment (Claims X and XI). The egregious circumstances of Comer’s condition during sentencing are readily apparent from both the trial transcript and the videotape presented to the Arizona Supreme Court. By not commenting on this issue, the Arizona Court implicitly signaled its rejection of any error. We hold, therefore, that these four claims were exhausted on their merits by the Arizona Supreme Court’s independent review of Comer’s capital case. Comer’s three other claims (Claims XII, XIV, and XVI) are neither as readily apparent from the record nor as clearly encompassed within Arizona’s independent review. Thus, we do not find them to be impliedly exhausted. We may proceed to decide the merits of Comer’s impliedly exhausted claims without remand to the District Court. See Beam, 966 F.2d at 1570-75; Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) (noting that a federal appellate court may appropriately decide the merits of a habeas petition). Additionally, Comer argues that Arizona’s' fundamental error review exhausted most of the other claims he presented to the District Court. We have held, however, that we will only consider a claim to be exhausted by Arizona’s fundamental error review if it was explicitly noted in the briefs presented to the state appellate court, or the state court mentions it is considering the claim sua sponte. See Moormann v. Schriro, 426 F.3d 1044, 1057 (9th Cir.2005). Because neither occurred in this case, we affirm the District Court’s finding that most of Comer’s other habeas claims were procedurally defaulted. We now proceed to address on the merits Comer’s impliedly exhausted and actually exhausted claims. First, we will consider the four guilt-phase claims that Comer raises in his appeal brief and that the District Court found were actually exhausted and thus not procedurally defaulted. Second, we will address Comer’s penalty phase claims, which include an actually exhausted claim of ineffective assistance of counsel and the four impliedly exhausted claims we have discussed in this section. 3. Guilt-Phase Claims Comer contends that his conviction should be set aside because of several constitutional errors that occurred during the guilt phase of his trial. Specifically, Comer claims that: (1) the trial court’s failure to sever the Pritchard homicide count from the Andrews and Brough kidnapping/robbery/sexual assault counts violated his due process right to a fair trial; (2) the trial court’s failure to sever the counts also violated his constitutional right to testify; (3) the prosecutor’s misconduct during closing argument deprived Comer of a fundamentally fair trial; and (4) the trial court’s failure to strike two venirepersons for cause denied Comer his Sixth Amendment right to a fair and impartial jury. The District Court considered the merits of all four of these claims and denied Comer’s habeas petition. We agree with the District Court that Comer is not entitled to relief based upon any of these claims; therefore, his conviction should stand and we deny his habeas petition as to these guilt-phase claims. a. Severance i. Due Process Comer’s first claim is that the trial court improperly joined the Pritchard homicide count to the Andrews and Brough Mdnap-ping/robbery/sexual assault counts. Comer contends that, because the evidence with regard to the Andrews and Brough counts was stronger and more inflammatory than the evidence relating to the first-degree murder count, he was prejudiced by the joinder of the offenses since the inflammatory evidence had a substantial and injurious impact on the jury’s determination regarding the first-degree murder count. “[T]he propriety of consolidation rests within the sound discretion of the state trial judge.” Fields v. Woodford, 309 F.3d 1095, 1110 (9th Cir.2002). Thus, we will not grant habeas relief unless the joinder “actually rendered] petitioner’s state trial fundamentally unfair and hence, violative of due process.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004) (citation omitted); Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir.1998). “The requisite level of prejudice is reached only if the impermissible joinder had a substantial and injurious effect or influence in determining the jury’s verdict.” Davis, 384 F.3d at 638 (internal quotation marks and citation omitted). We conclude that the joinder of the homicide and kidnapping/robbery/sexual assault counts did not render Comer’s trial fundamentally unfair. Comer contends that the circumstances of his trial are analogous to those found in Bean v. Calderon, a case in which we held that the joinder of two murder counts prejudiced the defendant as to one of the counts. 163 F.3d at 1083-86. The likelihood of prejudice in Bean, however, was much greater than the likelihood that Comer was prejudiced by the joinder of the homicide and kidnapping/robbery/sexual assault counts. First, in Bean, we found that the evidence regarding the separate murder counts at issue would not have been cross-admissible had the counts been tried separately. 163 F.3d at 1084. In contrast, the Arizona Supreme Court held that the homicide and kidnapping/robbery/sexual assault counts were properly joined because evidence pertaining to both sets of offenses demonstrated that Comer was engaged in a common scheme or plan to obtain money and supplies. Comer, 799 P.2d at 338-39 (Ariz.1990). Thus, as Comer acknowledges, at least some of the evidence presented at his trial was admissible as to all of the counts. This cross-admissibility of evidence significantly reduces the potential prejudice to Comer. See, e.g., Davis, 384 F.3d at 638-39 (finding no prejudice to the defendant when evidence was cross-admissible, the weight of evidence for each count was roughly equivalent, and the court gave a limiting instruction); cf. Leach v. Kolb, 911 F.2d 1249, 1258-60 (7th Cir.1990) (holding that, even when counts were not properly joined under state law, the misjoinder was not prejudicial due to a limiting instruction and strong evidence of guilt as to each charge). Second, the improperly joined counts in Bean consisted of two murders. 163 F.3d at 1083. However, when the joined offenses are different in nature, such as murder and kidnapping/sexual assault, and specific evidence is presented as to each crime, the risk of confusing or misleading the jury is reduced. See United States v. Irvine, 756 F.2d 708, 712-13 (9th Cir.1985). Third, the jury in Bean received only a very general instruction that each count must be decided separately. 163 F.3d at 1083. In contrast, Comer’s jury was, explicitly instructed “to give separate consideration to each individual count” and to “analyze what the evidence in each count shows with respect to that individual count.” While this instruction may not have been ideal, since the court subsequently instructed that jury that some evidence might overlap between the counts, it still acted to limit any prejudice. See Davis, 384 F.3d at 639 (“[A]ny prejudice was further limited through an instruction directing the jury to consider each count separately.”). Finally, the evidence relating to Comer’s guilt of the Pritchard homicide count was strong, as was the evidence of the kidnapping/robbery/sexual assault counts. In Bean, the prosecution was able to muster only scant evidence to convict Bean of the second murder count, including a disputed fingerprint, a matching hair, and testimony of a neighbor who saw Bean hiding in some bushes across from the victim’s house several weeks before the crime took place. 163 F.3d at 1085. Here, in contrast, during closing argument Comer’s counsel admitted that Comer shot Pritch-ard. Comer’s defense was that the shooting was an accident precipitated by Comer’s intoxication at the time, and thus did not involve the premeditation necessary for a finding of first degree murder. The prosecution presented substantial evidence to rebut this theory, including: (1) the location of the wound, behind the ear, which suggested a deliberate shooting; (2) testimony of Willis that, moments before the shooting, Comer told her, “I’m going to blow him away,” and that after the shooting Comer said “[sjee what I’ve done, I’m a cold and callous killer”; and (3) evidence that Comer stabbed Pritchard in the throat after the shooting. Comer counters that Willis’s testimony cannot be believed. When faced with this argument in Sandoval v. Calderon, however, we held that the issue of a witness’s credibility is for the jury to decide. 241 F.3d 765, 772-73 (9th Cir.2000). The jury’s conviction of Comer on the first degree murder count suggests it credited Willis’s testimony. Additionally, all parties agree that the evidence as to Comer’s guilt with regard to the kidnapping/robbery/sexual assault counts was overwhelming. Given the strength of the evidence against Comer on all counts, the cross-admissibility of that evidence, and the trial court’s limiting instruction, we hold that Comer’s trial was not rendered fundamentally unfair by joinder of the counts. See, e.g., Davis, 384 F.3d at 638-39 (holding no prejudice to defendant when evidence was cross-admissible, weight of evidence for each count was roughly equivalent, and court gave a limiting instruction); Fields, 309 F.3d at 1109-1110 (holding no prejudice to defendant when evidence was cross-admissible and evidence of guilt as to all counts was strong); Sandoval, 241 F.3d at 771-73 (same). ii. Right to Testify In a related claim, Comer contends that his right to testify under the Fifth, Sixth, and Fourteenth Amendments was violated when the trial court refused to sever the Pritchard homicide count from the Andrews and Brough counts. C