         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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