HAMMETT v. TEXAS
No. 79-5050.
Decided July 2, 1980
Per Curiam.
William Jack Hammett, the petitioner in this case, has been convicted of murder and sentenced to death. The conviction and sentence were affirmed by the Texas Court of Criminal Appeals, 578 S. W. ~2d 699 (1979). The petitioner states, and his attorney does not deny, that he informed his counsel that he did not wish to pursue any further appeals in his case. Nevertheless, counsel filed a petition requesting review by this Court.
Petitioner now moves for dismissal of the petition, stating under oath that he “made this decision voluntarily and with full knowledge of the consequences, only after due consideration of all facts and circumstances regarding the case.” Affidavit of June 3, 1980. Under Rule 60 of the Rules of the Supreme Court (1970), a petitioner or appellant may withdraw a petition or appeal. In response to this motion, petitioner’s counsel does not question petitioner’s competence. The State of Texas does not oppose petitioner’s motion. In the absence of any issue as-to petitioner’s competence to withdraw the petition filed against his will, there is no basis under Rule 60 for denying this motion. See Gilmore v. Utah, 429 U. S. 1012, 1014 (1976) (Burger, C. J., concurring). Moreover, withdrawal of the petition will not foreclose an appropriate application for collateral relief. Accordingly, the motion to withdraw the petition is granted.
It is so ordered.
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