IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1997 June 26, 1997
Cecil W. Crowson
PHILIP KEVIN COOK, ) Appellate Court Clerk
C.C.A. NO. 01C01-9604-CR-00146
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
PHILIP KEVIN COOK, Pro Se JOHN KNOX WALKUP
Specia l Needs Facility Attorney General and Reporter
7575 Cockrill Bend Road
Nashville, TN 37209-1057 PETER COUGHLAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
KATRIN N. MILLER
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appe llate Procedure. On October 9, 1995, the Defendant filed what a ppears to
be his third petition for post-conviction relief. The trial court summarily dismissed
the petition without appoin ting coun sel or con ducting a n eviden tiary hearin g. It
is from the order of dismissal that the Defendant appeals. We affirm the
judgm ent of the tria l court.
In 1983, the Defendant was convicted of two cou nts of armed robbery and
two counts of being an habitual criminal. He was senten ced to two con secutive
life sentences. His convictions and sentences were ultimately affirmed by our
suprem e court. 1
On October 24, 1985, the Defendant filed a post-conviction petition alleging
mental incompetence at the time of the commission of the crimes an d ineffective
assistance of counsel in pursuing the issue regarding his mental incompetence.
The trial court denied post-conviction relief and this court affirmed. 2
The Defen dant later filed what ap pears to have be en his se cond p ost-
conviction petition on Ju ne 2, 1 989. In that pe tition, the Defe ndan t prima rily
challenged the validity of the underlying convictions which supported his habitual
1
State v. Cook, 696 S.W .2d 6 (T enn. 198 5).
2
Philip Kevin C ook v. S tate, C.C.A. N o. 86-95 -III, Davidso n Cou nty (Tenn . Crim. A pp., Nas hville,
May 29, 1987).
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criminal sentences. The trial court den ied post-conviction relief and this court
affirmed. 3
The Defendant filed the petition in the case sub judice on October 9, 1995.
The primary a llegations raised in th e instant p etition are th at the prior p ost-
conviction petition s were errone ously dismissed and that the Defendant received
ineffective assistance of counsel during the prior post-conviction proceedings.
W e point out, a s noted by the trial judge, that Tennessee courts have long
adhered to the rule th at a claim of ineffective assistance of counsel in a previous
post-conviction proce eding is not co gniza ble as a basis for relief in a subsequent
post-conviction action. Hous e v. State, 911 S.W.2d 705, 712 (Tenn . 1995), cert.
denied, __ U.S. __, 11 6 S.Ct. 1685 , 134 L.Ed.2d 787 (1996 ).
In the Defendant’s second post-conviction petition, he attempted to attack
collate rally convictions entere d in another state . This court uphe ld the trial c ourt’s
denial of relief. In the Defendant’s third post-conviction petition, he alleges that
at the hearing on his second post-conviction pe tition, the trial court should have
taken judicial notice of his mental incapacity because his counsel at his second
post-conviction proce eding was ine ffective in bringin g this to the trial c ourt’s
attention.
The Defendant’s mental competency at the time of his second post-
conviction proceeding was not raised in the trial court at that time or on appeal
from the denial of post-conviction relief. This issue is presumed to be waived.
3
Philip Kevin C ook v. S tate, C.C.A. N o. 01C0 1-9208 -CR-0 0247, D avidson Coun ty (Tenn. C rim.
App., Nashville, Feb. 9, 1993).
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Tenn. C ode Ann . § 40-30-206 (g). “Waiver” is to be determined by an objective
standard unde r which a petitio ner is b ound by the a ction o r inactio n of his
attorney. House, 911 S.W .2d at 712 . There is no right to effective assistance of
counsel in post-co nviction pro ceedin gs, and therefore, an a llegation of ineffective
assistance of prior post-conviction counsel does not preclude application of the
defens e of waive r. Id. at 714.
As our supreme court stated long ago, “[t]here must be a finality to a ll
litigation, criminal as well as civil.” Arthur v. S tate, 483 S.W.2d 95, 97 (Tenn.
1972). We do not believe tha t the allegations con tained in this petition are
sufficient to rebut the presumption of waiver or to entitle the Defendant to an
evidentiary hearing concerning whether the trial judge should have taken judicial
notice of the Defe ndan t’s alleged mental condition at the time of the hearing on
his second post-conviction petition.
For the reasons stated herein, we cannot conclude that the trial judge erred
in dism issing the po st-con viction p etition. T he jud gme nt of the trial cou rt is
affirmed.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
GARY R. WADE, JUDGE
___________________________________
J. CURWOOD WITT, JR., JUDGE
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