September 30, 2003
On September 29, 2003, the Court received a letter from petitioner. In this letter, petitioner states that he wishes to withdraw his post-conviction petition. For the reasons discussed below the Court declines to grant petitioner's request at this time.
Petitioner was convicted of seven counts of first degree murder and sentenced to death for each count. On more than one occasion during the various proceedings, petitioner informed this Court that he intended to waive all non-mandatory appeals. When petitioner failed to file a post-conviction petition after the Tennessee Supreme Court affirmed his convictions and sentences for the homicides of two Captain D's employees, that court set an execution date.
Petitioner was convicted of the first degree murders of three McDonald's employees, two Captain D's employees, and two Baskin Robbins employees in three separate trials. The Captain D's murders are it issue in the pending post-conviction proceedings.
Mere hours before his scheduled execution, petitioner filed a post-conviction petition and this Court issued a stay of execution. The Court subsequently appointed the Office of the Post-Conviction Defender to represent petitioner in this matter, and that office filed a motion asking this Court to recuse itself from these proceedings. The Court ordered the State to respond to that motion no later than October 16, 2003.
After the State files its response the Court intends to file an order granting the motion without a hearing, transferring the matter to another court for a hearing on the motion, or denying the motion without a hearing. Until that time, the Court does not intend to rule upon any substantive motions. If petitioner wishes to renew his request through his attorneys after the appropriate court resolves the recusal issue, he may do so. However, the Court will not entertain any matters set forth in letters sent directly to the Court by petitioner. See State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976) (finding that a defendant does not have a right to simultaneously be represented by counsel and proceed pro se).
Although the Court declines to address petitioner's request at this time, the Court strongly encourages petitioner to reconsider his decision to withdraw his post-conviction petition. If petitioner pursues this matter and his request is granted following the requisite trial court hearing(s) and appellate review, he will be executed. Pursuant to the relevant legal authorities, a last-minute change of heart will not result in a stay of execution as it did in April 2003. Likewise, the fact that petitioner has two direct appeals pending in other cases will not result in a stay of execution. Under these circumstances, it is imperative that petitioner consult with counsel and seriously consider all options before choosing to withdraw his pending post-conviction petition.
ENTERED this the ___ day of September, 2003.