IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 4, 2000 Session
BILLY WAYNE LESLIE v. STATE OF TENNESSEE.
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 88-S-1573 Seth Norman, Judge
No. M1998-00585-SC-R11-PC - Filed December 21, 2000
We granted review in this post-conviction case to determine whether the trial court erred by
allowing the appellant’s appointed attorneys to withdraw and refusing to appoint new counsel. A
majority of the Court of Criminal Appeals held that the trial court did not err either by allowing the
appointed attorneys to withdraw or by refusing to appoint new counsel because the appellant had
abused the post-conviction process. We conclude, and the State concedes, that the trial court erred
by allowing counsel to withdraw without a hearing and failing to appoint new counsel. We therefore
reverse the Court of Criminal Appeals’ judgment and remand the case to the trial court for the
appointment of counsel and proceedings consistent with this opinion.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Reversed, and Case Remanded to the Davidson County Criminal Court.
E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER , and WILLIAM M. BARKER , JJ., joined.
John E. Herbison, Nashville, Tennessee, for the appellant, Billy Wayne Leslie.
Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S.
Johnson III, District Attorney General; and John C. Zimmermann, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
BACKGROUND
The appellant, Billy Wayne Leslie, was convicted of first-degree murder and sentenced to
life imprisonment in September of 1991. The Court of Criminal Appeals affirmed the conviction
and sentence on direct appeal on September 24, 1993. This Court denied Leslie’s application for
permission to appeal on February 22, 1994.
On February 8, 1995, Leslie filed a petition for writ of error coram nobis. The trial court
appointed attorney Martin Szeigis to represent Leslie.1 On May 10, 1996, Leslie filed a
pro se petition for post-conviction relief.
On October 16, 1996, Szeigis filed a motion to withdraw as counsel asserting that Leslie
“insisted that [he] pursue or present claims that cannot be supported by good faith argument.” The
trial court allowed Szeigis to withdraw without conducting a hearing on the motion and instructed
Leslie to choose from a list of three attorneys. Leslie chose attorney Thomas Bloom, who was then
appointed as counsel in these matters.
In October of 1997, Bloom filed a motion to withdraw asserting that Leslie “repeatedly
makes unreasonable demands . . . as to how his case should be presented.” The motion asserted:
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.
The motion concluded:
Appointed counsel foresees that it will be utterly impossible for him
to represent the Petitioner as Petitioner wants to be represented and
that Petitioner will find and declare said representation to be a sham.
Appointed counsel also foresees subsequent complaints against him
to disciplinary boards or the Court which, although frivolous, will
require time, energy and anxiety to address.
On November 12, 1997, without conducting a hearing, the trial court granted Bloom’s motion
to withdraw as counsel and refused to appoint new counsel to represent Leslie. In so doing, the trial
court said:
1
The Court of Crimina l Appea ls indicated that the trial court first appointed attorney Mark Fishburn.
This appointment is also mentioned in the trial court’s order of d ismissal. Alth ough it appears that Fishburn represented
Leslie on direct appea l, there is no indication that Fishb urn served as coun sel or was relie ved as co unsel in the post-
convictio n proce ss. In any ev ent, the lack of clarity in th e record in this regard is not germ ane to ou r decision.
-2-
Mr. Bloom, Mr. Leslie, has filed a motion that is similar to the
motion your last lawyer filed. Mr. Bloom tells me that you want him
to advance theories that he can’t sustain. That’s exactly what Mr.
Szeigis told me. I’m 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.
On November 25, 1997, the trial court held a hearing on Leslie’s petitions for coram nobis
and post-conviction relief. Leslie told the court that he was unable to proceed without counsel and
asked for a continuance. The trial court refused:
No, sir. Mr. Leslie, we have waltzed around on this thing and
waltzed around on this thing. I have appointed you two lawyers. The
last time I even allowed you to select from three different lawyers.
All of your lawyers have told me that you will not listen to them. I
am not going to continue this matter. I am not going to trifle with
you. The matter is hear [sic] today for hearing. We are going to hear
it, that’s all there is to it, so you must go forward, sir.
Leslie asked that the petition for writ of error coram nobis be heard separately and asserted that he
was unable to defend himself due to a stroke. The trial court said, “Both petitions are dismissed.
Take him back. Failure to prosecute.”
A written order dismissing both petitions was later entered. With regard to the appointment
of counsel, the trial court’s order said:
The gist of the withdrawal motions filed by each of the foregoing
attorneys centers upon the Petitioner’s refusal to cooperate with
counsel, his insistence that his court appointed attorneys engage in
unethical conduct in order to pursue false and meritless claims in the
consolidated petitions, and his voluntary conduct in disrupting the
orderly process and litigation of these petitions. . . . The Court
specifically finds that the dismissal of Messrs. Fishburn, Szeigis and
Bloom as attorneys appointed to represent the Petitioner were
necessitated through no fault of the attorneys but solely by the fault
of the Petitioner. . . . Based on the [Petitioner’s] willful and
intentional conduct necessitating the dismissal of his three prior
attorneys, all of whom are experienced in [the] area of criminal law
and are seasoned trial attorneys, this Court declines to appoint yet
another attorney at state expense to represent Mr. Leslie.
-3-
A majority of the Court of Criminal Appeals affirmed the dismissal of the petitions after
concluding that the trial court was in position to determine whether Leslie had abused the post-
conviction process. In dissent, Judge Joseph M. Tipton wrote that the trial court abused its discretion
by allowing Leslie’s attorneys to withdraw without a hearing or the appointment of new counsel.
We granted this appeal to review these issues.
ANALYSIS
We begin by reviewing the relevant portions of the post-conviction process as found within
the Post-Conviction Procedure Act of 1995. See Tenn. Code Ann. § 40-30-201, et seq. (1997). A
petitioner may file a petition for post-conviction relief seeking to set aside a conviction or sentence
or to have an appeal granted on the basis that the petitioner was denied a constitutional right under
the Tennessee or United States Constitutions. See Tenn. Code Ann. § 40-30-203 (1997).
A post-conviction proceeding is commenced by the filing of a petition for post-conviction
relief with the clerk of the court in which the conviction occurred. The petition shall assert a claim
for relief and allegations of fact supporting each claim. See Tenn. Code Ann. § 40-30-204 (1997).
A petition must be filed “within one (1) year of the date of the final action of the highest state
appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date
on which the judgment became final . . . .” Tenn. Code Ann. § 40-30-202(a) (1997).2 The Act
“contemplates the filing of only one (1) petition for post-conviction relief.” Tenn. Code Ann. § 40-
30-202(c) (1997).
If a petition that has been filed by an indigent petitioner has not been dismissed upon the trial
court’s preliminary consideration,3 the trial court “shall appoint counsel to represent the petitioner.”
Tenn. Code Ann. § 40-30-207(b)(1) (1997). Counsel shall file either an amended petition for post-
conviction relief or written notice that an amended petition will not be filed. Tenn. Code Ann. § 40-
30-207(b)(2) (1997). The State shall then file an answer responding to the allegations in the petition
2
There are only th ree statutory exceptio ns to the statute of limitations: (1) where a claim is based upon
a constitutional right that was not recognized as existing at the time of trial and has been given retroactive application;
(2) where a claim is bas ed upo n new s cientific evid ence estab lishing that th e petitioner is actually innocent of the
offense; and (3) w here a claim seeks reli ef from a se ntence th at was en hanced based up on a con viction tha t is
subsequ ently held to be inva lid. Tenn . Code A nn. § 40 -30-20 2(b) (19 97).
3
The trial court is required to consider the petition and the relevant portions of the record. It shall
dismiss the petition if it plainly appears that the petition is barred by the statute of limitations, that the petitioner has
already completed th e post-conviction process with regard to the judgment being challenged, or that the petitioner has
a post-conviction petition pending in another court that challenges the same judgment. Tenn. Code Ann. § 40-30-206
(1997 ).
-4-
and asserting statutory issues such as statute of limitations, waiver, and previous determination.
Tenn. Code Ann. § 40-30-208 (1997).4
In the present case, the trial court first appointed attorney Szeigis and later appointed attorney
Bloom to represent the petitioner. The legal standard of review in this case is whether the trial court
abused its discretion in allowing both Szeigis and Bloom to withdraw as counsel and also requiring
the petitioner to proceed without counsel.5 To answer this question, we must discuss the obligations
of an attorney in a post-conviction case.
It is well-established that a petitioner does not have a constitutional right to be represented
by counsel in a post-conviction case. See House v. State, 911 S.W.2d 705, 712 (Tenn. 1995);
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539 (1987). As
discussed above, however, the legislature has afforded a statutory right to counsel in post-conviction
cases. See Tenn. Code Ann. § 40-30-207(b)(1) (1997). The appointment of counsel assists in
ensuring that a petitioner asserts all available grounds for relief and fully and fairly litigates these
grounds in a single post-conviction proceeding.
We have summarized the obligations and responsibilities of a post-conviction attorney as
follows:
Appointed or retained counsel shall be required to review the pro se
petition, file an amended petition asserting other claims which
petitioner arguably has or a written notice that no amended petition
will be filed, interview relevant witnesses, including petitioner and
prior counsel, and diligently investigate and present all reasonable
claims.
Tenn. Sup. Ct. R. 28, § 6(C)(2). Counsel is also to file a certification indicating that he or she has
thoroughly investigated the possible constitutional violations, has discussed the possible
constitutional violations with the petitioner, and has raised all non-frivolous constitutional grounds
warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law. Tenn. Sup. Ct. R. 28, § 6(C)(3), app. C.
4
A ground for relief is waived if the “petitioner persona lly or throu gh an atto rney failed to presen t it
for determination in any proceeding befo re a court of competent jurisdiction in which the ground could have been
presented . . . .” Tenn. Code Ann. § 40-30-206(g) (1997). A ground for relief is previously determined “if a court of
competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn. Code An n. § 40-30-206(h) (199 7).
5
See State v. Shirley, ___ S.W.3d ___ (Tenn. 2000) (defining “abuse of discretion” as a legal standard
of appellate review).
-5-
In our view, these standards illustrate the balance between counsel and a petitioner in
determining the course and conduct of a post-conviction proceedings. Counsel is obligated to review
the petition; file an amended petition if necessary; interview the petitioner; interview
relevant witnesses; and investigate and present “all reasonable claims.” Tenn. Sup. Ct. R. 28, §
6(C)(2) (emphasis added). The rules also provide that counsel is to certify that all “non-frivolous
constitutional grounds” have been asserted. Tenn. Sup. Ct. R. 28, § 6(C)(3), app. C. Counsel must
consult with the petitioner where feasible but retains the right to make strategic and tactical decisions
– including the determination of which issues are reasonable and should be raised and pursued –
based on counsel’s professional judgment. Counsel is in no way obligated to comply with a
petitioner’s demands to investigate or pursue unreasonable or frivolous claims.
With these standards in mind, we agree with Judge Tipton’s conclusion, as does the State on
appeal, that the trial court erred in allowing counsel to withdraw in this case. The motion to
withdraw filed by Szeigis alleged only that Leslie wanted him to pursue and present claims that
could not be supported by “good faith argument.” The motion filed by Bloom, although more
detailed, alleged that Leslie made demands that were “unreasonable” and could not be presented in
“good faith.” Bloom’s motion indicated that Leslie was dissatisfied with his representation and
would lead to the filing of complaints to disciplinary boards and courts. The trial court did not
conduct a hearing and require proof on the issues raised by the bare allegations made by either
Szeigis or Bloom.
Although we are aware of the practical difficulties appointed counsel may face in the
representation of a post-conviction petitioner, we conclude that the allegations made by Szeigis and
Bloom did not alone justify withdrawal. Even if a hearing had been held and the proof had shown
that Leslie’s demands upon counsel were unreasonable, there was no claim that Szeigis or Bloom
were unable to satisfy their basic obligations of investigating, raising, and presenting any and all
reasonable and non-frivolous grounds for relief. As we have said, counsel is not required to
investigate or raise unreasonable or frivolous claims regardless of a petitioner’s demands. In short,
a petitioner’s unreasonable demands do not alone prevent an attorney from meeting his or her
professional responsibilities. Were we to conclude otherwise, a petitioner potentially could
manipulate the post-conviction process and create interminable delay by repeatedly seeking new
counsel.
We also conclude, and the State again concedes, that the trial court erred by requiring Leslie
to proceed unrepresented. Although we have held that the post-conviction remedy may be denied
to a petitioner who abuses the post-conviction process, this is not such a case. See Cazes v. State,
980 S.W.2d 364, 365 (Tenn. 1998) (After the petitioner filed and later demanded the withdrawal of
three successive petitions, the trial court dismissed with prejudice.). There was no evidence or
allegation that Leslie abused the post-conviction process. Although Szeigis and Bloom sought to
withdraw based upon their assertions of Leslie’s unreasonable demands, Leslie did not seek to have
either attorney removed. The trial court did not conduct a hearing before allowing either Szeigis or
Bloom to withdraw. Moreover, the trial court did not inquire into the work that had been performed
-6-
by counsel before requiring Leslie to proceed pro se less than two weeks after relieving Bloom.6 We
therefore conclude, and the State concedes, that the trial court erred by requiring Leslie to proceed
pro se.
CONCLUSION
After reviewing the record, we conclude, and the State concedes, that the trial court erred by
allowing counsel to withdraw and failing to appoint new counsel without conducting a hearing. We
therefore reverse the Court of Criminal Appeals’ judgment and remand the case to the trial court for
appointment of new counsel and additional proceedings on Leslie’s petitions. Costs of this appeal
are taxed to the State.
____________________________________
RILEY ANDERSON, CHIEF JUSTICE
6
As Judge Tipton observed, neither attorney filed an amended petition on behalf of Leslie. This may
partly be due, however, to the difficulty the attorneys had in discussing the issues with the petitioner.
-7-