1 The Sup rem e Co urt de nied t he pe titione r’s m otion for an exte nsio n of tim e in wh ich to file his applicat ion. 

# FILED
May 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

BENJAMIN MOSS, ) ) Petitioner, ) C. C. A. NO. 02C01-9802-CR-00044 ) vs. ) SHELBY COUNTY ) STATE OF TENN ESSEE, ) No. P-19164 ) Respondent. )

O R D E R

This matter is before the Court u pon the state’s motion to affirm the judgment of the trial court i n accordance with Rule 20, Rules of the Court of Crimi nal Appeals. The petitioner was originally conv

icted of second degree murder and sentenced to forty years imprisonment. This Court affirmed th e conviction and sentence on appeal. State v. Benjamin Moss , No. 02C01-9404-CR-00072 (Tenn. Cr im. App., No v. 2, 1994). In 1995, th e petiti oner fil ed a petition for post-c onviction rel ief, which was denied by

the trial court after an ev identiary hearing. On appeal, finding that the petitioner was denied his right to file an appli cation for permission to appeal to the Supreme Court, this Court v acated and reinstated its opini on on the direct appeal. Benjamin Moss v. State , No. 02C01-9602-CR-00064 ( Tenn. Crim. App., Feb. 18, 1997). However, the petitioner never filed an application for permission to appeal. 1

In November 1997, the petition er filed a second petition for postconviction relief clai ming ineffective assistance of counsel and errors of the tri al court. The trial court dismissed the petition finding: 1) the pe titioner had previousl

y filed a petition which was

resolved on the merits b y a court of competent juris diction; 2) the petitioner waived his claim of ineffective assistance of counsel; an d 3) the petitioner’s claim of trial court errors had been previously determined. On appeal, the petitio ner is2 The petitioner also cl aims that hi s court appoi nted counsel did not meet the requi rements of Rule 14, Rules o

f the Supreme Court, followi ng this Court’s opini on in February 1997. Contrar

y to t he petitio ner’s claim , how ever , this C ourt, findin g tha t cou nse l fully co mp lied wit h the requ irem ents of Ru le 14, g rante d cou nse l’s m otion to with draw from furth er rep rese ntatio n of th e pet itione r in this ma tter. T his claim is w ithout m erit. 2 again claiming he w

as denied his right to fil e an application for permissi on to appeal to the Supreme Court. 2

T.C.A. § 40-30-202(c) prov ides that no more than one petition for postconviction relief may be filed attacking a sing le judgment, and mandates that the tr ial court shall summarily

dismiss any second or s ubsequent petition if a prior petition was filed and resolved on the meri ts by a court of competent jur isdiction. Since the petitioner previously

filed a petition that was r esolved on the merits by the trial court and by this Court on appeal, the petitioner's present peti tion was properly dismissed. Additionally, after reviewing the entire record on appeal, we find that the petitioner’s claim does not fall withi n one of the limited circumstances under which a prior petition may be re-opened. See T.C.A. § 40-30-217. Moreov er, as properly found bythe postconviction court, the i ssues raised in the present petition have either been w aived or previously determin ed. See T.C.A. § 40-30-206.

For the reasons stated above, we conclude that the trial court did not err in dismissing the petitioner’s petition for post-c onviction relief. Accor

dingly, it is her

eby ORDERED that the judgment o f the trial court is affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.3 Enter, this the ___ day of May, 1998.

__________________________________ PAUL G. SUMMERS, JUDGE

__________________________________ DAVID G. HAYES, JUDG E

__________________________________ JOE G. RILEY, JUDGE