Man who asked for death penalty may still appeal

Monday, March 8, 2004 | 9:27 a.m.

RENO -- Condemned killer Lawrence Colwell says he's "ninety-nine and nine-tenths" sure he wants to be executed March 26 but left the door open to change his mind.

"I feel the execution will take place on March 26," Colwell told U.S. District Judge Howard McKibben. "I'm just ready."

But he asked that a petition for a writ of habeas corpus in federal court remain intact in case he decides to appeal his case further and needs a stay of execution.

He told McKibben on Friday that he will decide whether to seek a stay by March 24.

Colwell was convicted of the strangulation of Las Vegas tourist Frank Rosenstock of Florida at the Tropicana in a robbery attempt. Colwell offered to plead guilty to all charges if the state agreed to seek the death penalty. He asked for the death penalty before a three-judge panel that decided the penalty.

When he appeared before District Judge Donald Mosley in Las Vegas last month to have the execution date set, he said he was preparing to drop his appeal in federal court and wanted to die.

When Colwell was asked by McKibben why he had changed his mind about withdrawing the petition for a writ, Colwell said he "told Judge Mosley to satisfy him."

Colwell said Mosley "pounds on you and harps on you," so he gave the judge the answer he wanted to hear.

Michael Pescetta, deputy federal public defender, told McKibben he wants to keep the petition in federal court alive in case Colwell decides to seek a stay. If the petition were dismissed, Pescetta said, Colwell would be barred from filing for a stay of execution.

He said the present petition was filed Jan. 13 this year before the statute of limitation expired on Feb. 20. If the present petition was dismissed, Pescetta said a new petition would be past the time limit and could not be filed.

Pescetta said he was "not 100 percent sure he's going to be executed."

Colwell, wearing prison denims, was guarded by three prison correctional officers. And he was questioned extensively by McKibben, who wanted to determine if he was competent.

Questioned about the death penalty, Colwell said, "I would die." He said it would be final.

"I understand the difference between life and death," said the 35-year old killer.

Apparently referring to the court hearings, he said, "I'm tired of this."

McKibben found Colwell competent and said he was "quite aware of his decision" to seek execution.

But the judge ordered prison officials to allow Pescetta to have full access to Colwell. And Colwell should have access to a telephone to call Pescetta. "The line must be open. There must be sufficient time to act to order a stay of execution," McKibben said.

The judge said he would sign a stay of execution if Colwell asks. But he said he didn't want Colwell to wait until the 11th hour to request a stay. McKibben said he did not want to see "brinksmanship" being played.

The court hearing was on the motion of the state attorney general's office to dismiss Colwell's petition. After Colwell told the judge he did not want a stay of execution, McKibben said he was inclined to dismiss the petition.

But when Pescetta said that if the appeal was dismissed, a new petition would be barred, McKibben changed his mind, leaving the door open.

Colwell is set to be executed by lethal injection at 9 p.m. on March 26, unless he changes his mind.