         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

              RICKY EUGENE COFER v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Anderson County
                         No. A2CR0217 James B. Scott, Jr., Judge


                     No. E2003-01400-CCA-R3-PC - Filed August 24, 2004


The petitioner, Ricky Eugene Cofer, appeals the order of the Circuit Court for Anderson County
dismissing his post-conviction relief petition. The State has filed a motion requesting that this Court
affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals.
The petitioner’s claim of ineffective assistance of trial counsel was previously determined on direct
appeal. The petition was properly dismissed. Accordingly, the State's motion is granted and the
judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., AND
JAMES CURWOOD WITT , JR., J., joined.

Charles David Buckholts, Oak Ridge, Tennessee, for the appellant, Ricky Eugene Cofer.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        The petitioner was convicted of aggravated robbery and was sentenced to serve fifteen years
in prison. On direct appeal, the judgment of the trial court was affirmed. See State v. Ricky Eugene
Cofer, No. E2000-01499-CCA-R3-CD (Tenn. Crim. App., at Knoxville, June 25, 2001), app. denied
(Tenn. Oct, 29, 2001). On June 7, 2002, the pro se petitioner filed a post-conviction relief petition
in which he claimed ineffective assistance of counsel and prosecutorial misconduct at trial. At the
evidentiary hearing, the petitioner, through his appointed counsel, argued only his claim of
ineffective assistance of counsel. Specifically, he asserted that his trial counsel should have moved
to withdraw so that she could testify as a defense witness and impeach the victim’s testimony. The
petitioner further asserted that counsel was deficient in failing to call alibi witnesses or to allow the
petitioner to testify in his own defense. On May 1, 2003, the trial court dismissed the petition,
finding that there was no evidence to support the petitioner’s claim of ineffective assistance of trial
counsel. The court further noted that the same issue was previously raised on direct appeal. The
instant appeal followed.
        A petition sets forth a colorable claim if it alleges facts showing that the conviction resulted
from an abridgment of a constitutional right and demonstrates that the ground for relief was not
previously determined or waived. Rickman v. State, 972 S.W. 2d 687, 693 (Tenn. Crim. App. 1997).
See also, Tenn. Code Ann. §40-30-204(e). Before this court, the petitioner concedes that “he raised
the issue of ineffective assistance of counsel on direct appeal, that this issue was ruled on by this
Court and that he again raised this issue on appeal of the denial of his petition for post-conviction
relief.” The petitioner states that he again asserts this claim because he had not had a full and fair
hearing of the claim until the evidentiary hearing on the instant post-conviction petition. He
contends, however, that the post-conviction court failed to set forth any basis for denying his specific
claim that he was prejudiced by his trial counsel’s failure to withdraw and testify in his defense.

         A post-conviction petition may be dismissed “if the facts, taken as true, fail to show that the
petitioner is entitled to relief or fail to show that the claims for relief have not been waived or
previously determined.” Tenn. Code Ann. § 40-30-206(f). As the petitioner himself concedes, he
raised an identical claim of ineffective assistance of counsel on direct appeal. In our opinion, this
court noted that the trial court did express concern “about the admissibility of the rebuttal testimony
offered by the victim, but made no suggestion that trial counsel had acted ineffectively by failing to
testify.” State v. Ricky Eugene Cofer, No. E2000-01499-CCA-R3-CD (Tenn. Crim. App., June 25,
2001), slip op. at __. This court concluded that “[t]rial counsel was not ineffective for failing to
withdraw and offer to testify as a witness” because any testimony offered by counsel would have
been restricted by hearsay rules and cumulative to the testimony of other defense witnesses. Id., slip
op. at __. A matter decided on direct appeal cannot be relitigated in post-conviction relief
proceedings. McBee v. State, 655 S.W. 2d 191, 196 (Tenn. Crim. App. 1983), (citing Searles v.
State, 582 S.W.2d 391, 392-393 (Tenn. Crim. App.1979)). The post-conviction court correctly noted
that the issue had been previously determined, but nonetheless considered the claim based on the
proof presented at the evidentiary hearing and found that it was without merit . Based on the
pleadings, the record before us, and the applicable law, we conclude that the trial court properly
dismissed the petition.
         Accordingly, the state’s motion is granted. The judgment of the post-conviction court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.


                                                        _______________________________________
                                                         NORMA McGEE OGLE, JUDGE




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