FILED

June 26, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1997

PHILIP KEVIN COOK, ) C.C.A. NO. 01C01-9604-CR-00146

)

Appellant, )

)

) 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

Special 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 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

State v. Cook, 696 S.W .2d 6 (Tenn. 198 5). 

2

Philip Kevin C ook v. State, C.C.A. N o. 86-95 -III, Davidso n Cou nty (Tenn . Crim. App., Nas hville, 

May 29, 1987).

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OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. On October 9, 1995, the Defendant filed what appears to

be his third petition for post-conviction relief. The trial court summarily dismissed

the petition without appointing counsel or conducting an evidentiary hearing. It

is from the order of dismissal that the Defendant appeals. We affirm the

judgment of the trial court.

In 1983, the Defendant was convicted of two counts of armed robbery and

two counts of being an habitual criminal. He was sentenced to two consecutive

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 and 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 Defendant later filed what appears to have been his second postconviction petition on June 2, 1989. In that petition, the Defendant primarily

challenged the validity of the underlying convictions which supported his habitual
3

Philip Kevin C ook v. State, 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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criminal sentences. The trial court denied post-conviction relief and this court

affirmed.3

The Defendant filed the petition in the case sub judice on October 9, 1995.

The primary allegations raised in the instant petition are that the prior postconviction petitions were erroneously dismissed and that the Defendant received

ineffective assistance of counsel during the prior post-conviction proceedings.

We point out, as noted by the trial judge, that Tennessee courts have long

adhered to the rule that a claim of ineffective assistance of counsel in a previous

post-conviction proceeding is not cognizable as a basis for relief in a subsequent

post-conviction action. House v. State, 911 S.W.2d 705, 712 (Tenn. 1995), cert.

denied, __ U.S. __, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996).

In the Defendant’s second post-conviction petition, he attempted to attack

collaterally convictions entered in another state. This court upheld the trial court’s

denial of relief. In the Defendant’s third post-conviction petition, he alleges that

at the hearing on his second post-conviction petition, the trial court should have

taken judicial notice of his mental incapacity because his counsel at his second

post-conviction proceeding was ineffective in bringing this to the trial court’s

attention.

The Defendant’s mental competency at the time of his second postconviction 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.
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Tenn. Code Ann. § 40-30-206(g). “Waiver” is to be determined by an objective

standard under which a petitioner is bound by the action or inaction of his

attorney. House, 911 S.W .2d at 712. There is no right to effective assistance of

counsel in post-conviction proceedings, and therefore, an allegation of ineffective

assistance of prior post-conviction counsel does not preclude application of the

defense of waiver. Id. at 714.

As our supreme court stated long ago, “[t]here must be a finality to all

litigation, criminal as well as civil.” Arthur v. State, 483 S.W.2d 95, 97 (Tenn.

1972). We do not believe that the allegations contained 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 Defendant’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 dismissing the post-conviction petition. The judgment of the trial court is

affirmed.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

J. CURWOOD WITT, JR., JUDGE