# FILED
June 26, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1997
PHILI P KEVIN COOK, ) C.C.A. NO. 01C01-9604- CR-00146 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDAL L WYATT, JR. STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : PHILIP KE VIN COOK, Pro Se JOHN KNOX WALKUP Specia l Needs Facility Attorney Generaland Reporter 7575 CockrillBend Road Nashvill e, TN 37209-1057 PETER COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attorney General KATRIN N. MI LLER Assistant Distri ct Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 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). -2-



# OPINION

This is an appeal as of ri ght pursuant t o Rule 3 of the TennesseeRules of Appe llate Procedure. On October 9, 1995, the Defendant filed what a ppears to be his thi rd petit ion forpost-convi ction rel ief. The t rial cour t summarily di smissed the petiti on without

appoin ting coun sel or con ducting a n eviden tiary hearin g. It is f rom the or der of dismi ssal that the Defendant appeal s. 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 be ing a n habi tualcri minal . He was senten ced to two con secutive life sentences. His convicti ons and sentences w ere ulti mately aff irmed by our suprem e court. 1

On Octob er 24, 1985, the Defendant f iled a post-convict ion peti tion all eging mental incompetence at t he time of t he commission of the crimes an d ineffective assistance of counsel in pursui ng the issue r egarding his

mental incompetence. The trialcourt deni ed post-convi ction rel ief and th is court affirmed. 2

The Defen dant later filed what ap pears to have be en his se cond p ostconv ic tion petition on Ju ne 2, 1 989. In that pe tition, the Defe ndan t prima rily challenged the validity of t he underlyi ng convicti ons which supported his habit ual3 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). -3- criminal sente nces. The trial court den ied post-conviction relief and this court affirmed. 3

The Defendant fi led the pet ition i n 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 ostconvicti on petition s were errone ously dismissed and that the Defendant receiv ed ineffective assistance of counsel during t he prior post -c onviction proceedings. We point out, a s noted by t he trialjudge, th at Tennessee courts have long adhered to the rule th at a claim of i neffective assistance of counsel i n a previous post-convi ction proce eding is not co gniza ble as a basis for relief in a subsequent post-convi ction 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-convi ction pet ition, he attempted to attack collate rally convictions entere d in another state . This court uphe ld the trial c ourt’s denial of reli ef. In t he Defendant’s t hird post- convicti on petiti on, he alleges t hat at the hearing on hi s second post-conviction pe tition, the trial court should have taken judicial not ice of his mentalincapacit y because his couns el at his second post-convi ction proce edin g w as ine ffective in bringin g this to the trial c ourt’s attenti on.

T he Defendant’s mental competency at the time of hi s second post convicti on proceeding was not raised i n the trialcourt at t hat time or on appeal from thedeni al of po st- convict ion rel ief . Th is iss ue i s presum e d to be waived.-4-

Tenn. C ode Ann . § 40-30-206 (g). “Waiver” is t o 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 t herefore, an a llegation of ineffective assistance of prior

post-convi ction counsel does not precl ude applicat ion of the defens e of waive r. Id . at 714.

As our sup remecou rtstated lon g ago , “ [t]he re mu st be a finality to a ll lit igation, cr iminal 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 suffic ientto rebut the p resumption of waiver or to entit le the Defendant to an evidentiary hearing concerning whether the tri al judge shoul d have taken judici al notice of the Defe ndan t’s alleged mentalconditi on at the ti me of the heari ng on his second post- convicti on petiti on.

For the reasons stated herein, we cannot conclude t hat the trial j udge 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 , JUD GE-5-

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ J. CU RWOOD WITT, JR. , JUD GE