Billy Wayne Leslie v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1999 SESSION
August 27, 1999
Cecil W. Crowson
Appellate Court Clerk
BILLY WAYNE LESLIE, )
) NO. 01C01-9806-CR-00242
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. SETH NORMAN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
BILLY W. LESLIE, Pro Se MICHAEL E. MOORE
N.W.C.X., Site 2 Solicitor General
Route 1, Box 660
Tiptonville, TN 38079 ELIZABETH B. MARNEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
JOHN C. ZIMMERMANN
Assistant District Attorney General
Washington Square
222 - 2nd Avenue North, Suite 500
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Petitioner appeals the dismissal of his combined petitions for writ of error
coram nobis and post-conviction relief. The sole issue for our review is whether the
trial court erred in failing to appoint counsel for the evidentiary hearing. The trial
court had appointed three different attorneys to represent petitioner. In each case,
the attorney requested and was granted permission to withdraw as a result of
petitioner’s lack of cooperation and unreasonable demands. Upon allowing the third
attorney to withdraw, the trial court declined to appoint another attorney and set the
matter for a subsequent hearing on the merits. Petitioner failed to present any
evidence in support of the petitions on that date, and the trial court dismissed them.
We conclude the trial court did not err and AFFIRM the dismissal of the petitions.
BACKGROUND
A Davidson County jury convicted petitioner of first degree murder on
September 13, 1991, and sentenced him to life imprisonment. This Court affirmed
the conviction, see State v. Billy Wayne Leslie, C.C.A. No. 01C01-9203-CR-00081,
Davidson County (Tenn Crim. App. filed September 24, 1993, at Nashville), and the
Tennessee Supreme Court denied permission to appeal on February 22, 1994.
Petitioner filed a pro se petition for writ of error coram nobis in February
1995, and the trial court appointed counsel, Mark Fishburn, to represent him. The
trial court subsequently permitted Fishburn to withdraw from representation due to
a “fractured relationship” with petitioner.
The court then appointed Marty Szeigis to represent petitioner. A petition for
post-conviction relief was filed on petitioner’s behalf in May 1996, which the trial
court combined with the petition for writ of error coram nobis for purposes of these
proceedings. In November 1996, the trial court permitted Szeigis to withdraw from
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representation due to the “acrimonious relationship” with petitioner evidenced by
petitioner’s insistence that counsel “pursue . . . claims that cannot be supported by
good faith argument.”
In an unusual move, the trial court tried to avoid yet another fruitless
appointment by allowing petitioner to interview three attorneys and choose the one
he found most suitable. Petitioner chose attorney Thomas Bloom, and the court
appointed Bloom in January 1997. In September 1997, Bloom filed a motion to
withdraw as counsel citing irreconcilable differences with petitioner:
For cause, Mr. Bloom would show the Court that the
Petitioner insists upon a hearing strategy that Mr. Bloom
is unable to conduct in good faith and that Petitioner
repeatedly makes unreasonable demands upon
appointed counsel as to how his case should be
presented. For example, the Petitioner insists that
appointed counsel subpoena over thirty-seven
witnesses, introduce about a dozen affidavits, conduct
a thorough background check on the victim, including
credit and military history and telephone records, ask for
funds to obtain experts for blood and fiber tests, obtain
and send to him trial exhibits and prosecution files,
obtain blood test results from California, as well as
other investigative and legal inquiries.
Petitioner’s attorney will not be able to represent
Petitioner in a manner which will give the Petitioner any
satisfaction and Petitioner’s attorney will necessarily be
cast in the position of fighting the Petitioner as well as
the State, and will certainly give the Petitioner the
impression that appointed counsel is on the State’s side
rather than his. Moreover, Petitioner has informed
counsel that counsel is violating his constitutional rights
if counsel does not act upon Petitioner’s demands.
On November 12, 1997, the trial court relieved Bloom of representation in the
petitioner’s presence:
THE COURT: I am going to relieve Mr. Bloom, and I’m not going
to give you a lawyer, sir. I am going to allow you to proceed by
yourself. I will set this matter for a hearing . . . November the 25th.
It will be set to be heard on that day.
...
On November 25, 1997, petitioner informed the trial court that he was
unprepared to proceed and requested appointment of yet another attorney. The
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trial court denied the request and dismissed the petitions when petitioner failed to
present any evidence. The order of dismissal stated: “Based on the defendant’s
willful and intentional conduct necessitating the dismissal of his three prior attorneys
. . . this Court declines to appoint yet another attorney at state expense to represent
Mr. Leslie.”
LEGAL AUTHORITIES
The sole issue in this appeal is whether the trial court erred “in denying the
petitioner the assistance of counsel in his post-conviction evidentiary hearing.”
Petitioner claims that the trial court’s dismissal of his petitions was improper in light
of its refusal to appoint another attorney to represent him. We disagree.
“[P]ost-conviction relief is a statutory remedy offered by the legislature; it is
not a constitutional right.” Cazes v. State, 980 S.W.2d 364, 365 (Tenn. 1998).
Furthermore, there is no constitutional right to counsel in post-conviction
proceedings. House v. State, 911 S.W.2d 705, 712 (Tenn. 1995)(citing Murray v.
Giarratano, 492 U.S. 1, 10, 109 S. Ct. 2765, 2770, 106 L. Ed. 2d 1 (1989)). The right
of an indigent petitioner to the appointment of counsel is statutory. Tenn. Code
Ann. § 40-30-207(b)(1); see also Tenn. Sup. Ct. Rules, Rule 28, § 6(B)(3)(a). A
petitioner who abuses the process cannot be heard to complain when he is denied
access to the statutory remedy of post-conviction relief. Cazes, 980 S.W.2d at 365.
DISPOSITION
The trial court found that the petitioner’s “willful and intentional conduct”
necessitated the dismissal of his three appointed attorneys. The trial court further
noted petitioner’s “voluntary conduct in disrupting the orderly progress and litigation
of these petitions.” The trial court was in a better position than this Court to make
these determinations. After dismissal of the first two attorneys, the trial court went
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to the unnecessary and generous extreme of allowing petitioner to “interview” three
separate attorneys and choose one. There is nothing to indicate that the
appointment of yet a fourth attorney would have yielded a different result.
It appears petitioner abused the post-conviction process; thus, he may not
be heard to complain. Cazes, 980 S.W.2d at 365. The trial court’s refusal to
appoint another attorney was not error.
The trial court’s dismissal of the petitions is AFFIRMED.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOSEPH M. TIPTON, JUDGE
____________________________
ALAN E. GLENN, JUDGE
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