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IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
HO. 05-15-00075
ROY JON, Appellant
vs.
THE STATE OF TEXAS* Appellee
On appeal from the Court of APPEALS
Fifth District Of Texas at Dallas
Trial Court Cause No* W92-63805-L
Appellate Nuber 05-15-00075
NOTICE OF APPEAL
Notice is hereby given that the defendant ROY JON, Appearing Pro-se, in the above
appellate number appeals from the ORDER, entered on January 23# 2015 and the Trail
Court ORDER entered on December 18, 2014.
This appeal follows the denial of his application for Writ of Habeas Corpus filed
on or about Novefflber 08,2014, pursuant to Art. 11.01* 11.02* 11.04? and 11.05 of the
Texas Code of Criminal Procedure, and Art. 1 aect. 12, and Art. 5 sect. 8, of the
Texas Constitution.
RESPECTFULLY SUBMITTED
ROY JON §6,26840 Appearing Pro-Se
Order entered February 11, 2015
In The
Court of gppeate
Jftfty Btetrict of %txM at ©alias!
No. 05-15-00075-CR
ROY JON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. W92-63805-L
ORDER
On January 23, 2015, we dismissed the appeal in this case for want of jurisdiction. The
Court now has before it appellant's February 10, 2015 "Motion to Transfer Original Notice of
Appeal, Appeal Brief, and Attached Exhibits" to the Clerk of the Texas Court of Criminal
Appeals to have them "filed in this appeal." Appellant does not state that he has filed a petition
for discretionary review, and the Texas Court of Criminal Appeals has neither notified the Court
that a petition for discretionary review has been filed nor directed this Court to forward copies of
the documents in this appeal. See Tex. R. App. P. 68.7. Accordingly, we DENY appellant's
motion to the extent that he asks the Court to transfer the documents to the Court of Criminal
Appeals.
We DIRECT the Clerk of this Court to send appellant, by first-class mail, copies of his
pro se brief and his notice of appeal, with all attachments, together with a copy of this order.
/s/ ELIZABETH LANG-MIERS
JUSTICE
*H»w>H'M'tojwnn«w«
OS-l 5.-0001.5'C^ RECEIVED
Court of Appeals
JAN 1 6 2015
CAUSE NO. W92-63805-L
„, Lisa Matz
Clerk, 5th District
STATE OF TEXAS § IN THE CRIMINAL
VS. % DISTRICT COURT NO. 5
ROY JON \ DALLAS COUNTY, TEXAS
NOTICE OF APPEAL
Notice is hereby given that the defendant ROY JON, appearimH
PRO-SB, in the above cause number appeals from the ORDER, entered on
December 18, 2084.
This appeal follows the denial of his application for Writ of Habeas
Corpus filed on or about November 08,2014, pursuant to art. 11.01} 11.02}
11.04} and 11.05 or The Texas Code of Criminal Procedure, and art. 1 sect.
12, and art. 5 seet. 8, of the Trxas Constitution, in requesting the
complete transclpts in order to show that the defendant did not receive
effective assistance of counsel during his State Trial and to show that
he was denied his right to appeal his conviction in the above cause number
Griffin vs. Illinois, 351 u.s. 18, loo L.Bd. 891, 78 s.ct 58S$iti#).
RESPECTFULLY SUBMITTED
% £1
ROY JOM0Appearing Pro-Se
\
TDCJ_£« No. #626840
1697 FN 980 s
Huntaville* Texas 77340
CC. FILED
r
December 09,2015
Gary Fitzsimmons
District Clerk
Frank Crowley Courts Building
133 N. Industrial Blvd. LB 12
Dallas, Texas 75207-4313
RE} NOTICB OF APPEAL
Dear Mr.Fitzsimmons, sir.
Enclosed please find the following instruments to be filed in your
office, that is in reference to cause no. W92-63805-L. I AM RBQUBSTInJI
a return receipt of this "Notice of appeal", I am requesting the date of
filing, the court reporter's itame, the court appointed attorney's name
that represented the defendant, the district attorney's name, and the
judge that presided over the trial in this cause number, when you return
the filing date. I am requesting the following information to further
my appeal. The following instrnment's are enclosed:
1. Notice of appeal
2. Notice of appeal and pauper oath, and appointment of attorney on appeel
3,Designation of record on appeal
RBSPBCTFULLY SUBMITTED
*tW
ROY JOB t6268JI0 Appearing Pro-s*
C.C FILED
v?:}M^mwv^m&vrwa!&w>*!f3!??r»m**r^
CAUSB NO, W92-638o5l
8TATB OF TEXAS * IN THE CRIMINAL
VS * DISTRICT COURT NO 8
ROY JON * DALLAS COttSTY TBXAS
DEFENDANT'S NOTICE OF APPEAL AND AAUP.BR OATH
APPOINTMENT OF ATTTORNBY ON APPBAL
to the honorable judge of said court;
tomes now Defendant in the above cause and states: I am the defendant
in the above cause Iwas convicted in this cause and now give notice of appeal to the
Texas Court of Appeals for the Fifth turrese Judicial District of Texas at Dallas and the
lam penniless destitute and Indigent person too poor to employ counsel to represent me
on the appeel and too poor to pay for or give security for the Statement of Facts and
a true copy thereof herein
NHBRBFORB I pray that the Court will appoint an attorney to represent me in this appeal
end that the court will order the Court reporter of this court to prepare and deliver
to me or my appointed Counsel the original and a tore copy of the Statement of Facts in
this case together with all exhibits attached thereto if practical
Defendants \j
•ra. n* th« undersigned authority personally appeared the above Defendnat known
to me to be the person whose signature appears above and after being duly sworn on oath
etates that he is the dafendnat in the above cause and that the matters and things set
forth in foregoing are true and correct in all things
The Defendant having requested the Court to arroint Counsel
Zt is Ordered the Honorable *tnM*m««*«**H*«**M*M*m*M*****MMH**mM*«HMMM
Address |»»»»»»»«»«»*^»^»«»«»e»**»^»*^*»*»»*«*»*****e*«e***»*******»»»**^*********
a regular licensed and practicing attorney of Texas be and he is hereby appointed to
represent Defendant in rroseeuting his arreal herein and it is further Ordered that the
ssss mF&x*KJfrnt& of*8nts%»ti1wgfcBJ«eii^"—•* •w*1" to
M. •'0$^
Cause No. W92-63805-L
THE STATE OF TEXAS § IN THE criminal
V. ' R
S DISTRICT COURT NO. 5
IROY JON § J3AL-LAS COUNTY, TEXAS
DESIGNATION OF RECORD ON APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES the Defendant in the above styled and numbered cause, and submits this
Designation ofRecord on Appeal, and requests that the following items be contained in the record of
this appeal:
1. Acomplete Reporter's Record ofthe trial ofthis case, including any testimony at any
stage of the trial, any bench conferences, any arguments on motions, the voir dire
examinations of the jury, the final arguments ofcounsel, any pre-trial orpost-trial
hearings, orany other matters connected with this case where the court reporter was
present and transcribing the proceeding, including exhibits and materials subject to
judicial notice from all proceedings. According Jo the dooket sheet, trial was
conducted on _ and!
2. The indictment(s) or information(s) including enhancement allegations.
3. Any special pleas and motions of the Defendant and motions of the
State.
4. Any written waivers.
5. The trial court's docket sheet.
6. Charge of the Court on both guilt-innocence and punishment.
7. Any special requested charges submitted by the Defendant.
8. The verdict of the jury.
9. Any Findings of Fact iiud Conclusions of Law. V-
10. The judgment and sentence.
Designation of Record Page 1
yap
11. Motions for New Trial.
12. Notice of Appeal.
13. Any notes from the jury and the Court's response thereto.
14. All exhibits introduced at trial.
15. Any subpoenas or requests for subpoenas.
16. Any notes written by the Judge in the trial court's file.
17. Any letters written by the Defendant to the Court.
18. The Defendant's application for probation, if any.
19. The certificationof the Defendant's right to appeal under Rule 25.2.
20. Texas Department of Public Safety Criminal History.
>-.
Designation ofRecord 8e
vi*$&
2014
Thejudgment in this case was entered on December 18, AMotion for New Trial was not
filed. The record should be due on or about
WHEREFORE, PREMISE CONSIDERED, the Defendant/Appellant respectfully requests
that these matters be contained within the record ofthis appeal.
Respectfully submitted,
ROY JONA#626840 /pro-se
Attorney for Defendant on Appeal Only
rpirnmr ATF. OF SERVICE
AcopyHJ of this Designation of Record has been mailed_pnto orthe,before,
copy
1 jlary janyary
Fitzsimmons,
09,2015.
^District Clerk,
o>-
ROY JO$
O..B. E.
1697 FM 980
Huntsville, Texas 77340
c.c. filed
Page 3
Designation of Record
December 13, 2015
Lisa Matz
Clehk of the court
Fifth Court of appeals
George L. Allen, Sr. Court Bldg.
600 Commerce Street, Ste. 200
Dallas, Texas 75202-4658
RE: APPELLANT FILE HIS APPEAL BRIEF
dear Ms. Matz,
Enclose please find the following instrument's to be filed in your office, that
is in reference to cause no. F$@-688S-L. I am requesting that you serve me a return
receipt for these document's# and a filing date, "PLEASE".
•1. APPELLANT'S APPEAL Brief
2. COPY OF THE APPELLANT'S NOTICE OF APPEAL
RESPECTFULLY SUBMITTED
s*
ROY JON #625840 pro/se
H .^>.jiirjnn.IKW'!»••**•*•rr-i»^^'.-^^0*:rr^?^^»»|i-')g,4>'.MSWJJ»»r*WJ'.*»•!'. >w.mi« W'PfUJI'HP'q W'W HP" *'.?! '
index of authorities
pdHe
federal cases
DOuJIlAS VS. CALIFONIA, 872 U.S. 353,9 L.Ed2d. 811, 83 S.Ct. 814 (1963) 6
IkiFFIN VS. ILLINOIS, t%! U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585 (1956) 6
LANE VS. BROWN, T72 U.S. 477, 484, 83 S.Ct. 768,772, 9 L.Ed.2d. 382 (1963) 7
LONH VS. DISTRICT COURT, 383 U.S. 192, 85 S.Ct 362, ^7 L.Ed.2d. 290 (1966) 7
UNITED STATES VS. MacCOOLOM, 426 U.S. 317,325,96 S.CT. 2086,2001,48 L.Ed. 666 7
(1976).
7
RONNER VS. HENDERSON, 517 F.@D. 135 (5th cir. 1975) ,
paHe
TEXAS CASES
TEXAS CODE OF CRIMINAL PROCEDURE RULE 26.04
TEXAS CONSTITUTION ARTICLE V. §§5 and 6
ill
STATEMENT OF THE CASE
Appellant, Roy Jon, was indicted by the jQrand jury of Dallas County, Texas on or
about April 05,1992, for delivery of a controlled substance in Dallas county, Cause number
F92-63805. Appellant plead not guilty to the charge and the trial court found him guilty
of the offense as charged in the indictment on August 19,1992. The trial court assessed
punishment at twenty-five years imprison, and no appeal was perfected from the judgment.
November 28,2000, appellant file a State Habeas Application pursuant to article 11.07
iixfl«xiix&2xxixxMxxaHfiix of the Texas Code of Criminal Procedure (TCCP), RAISIN,! THE
iJROUNDS OB ineffective assistance of trial counsel and the right to a direct appeal.
On April 1,2001, the court of criminal appeals denied the application without awritten
order.
On March 19,2002, Appellant filed his federal writ of habeas corpus, alleging the
same grounds and other's, the district court dismissed the petition as barred by the
one-year statute limitation period. 28 U.S.C. §§ 2244(d). see attached exhibit's A. 1-2
Appellan now petition the trial court to review the trial records that should had
been provided to him, when he filed his pro-se notice of appeal (3) THREE DAYS AFTER
the trial court found him guilty August 19,1992. The trial court erred d» not «**&"»
appellant's pro-se notice of appeal, which denied him access to the court and to his direct
ZAppellant argues that it's been 20 years since his conviction and he need he
transcript order to show that he did not receive effective assistance of counsel
during his state trial, see attached exhibit's B. 1-6.
POINTS
POINT ONE:
toes the United States constitution mandates a defendant's right to appeal
his felony conviction in State Court, by and through diect appeal ?
POINT TWO:
Does the United States Constitution mandate a defendant challenging a felony
conviction, his right to the trial court records and/or transcripts.
STATEMENT OF FACTS
The trial court misconstrued the appellant's application pursuant to articles 11.01j
11.02; ii.04; 11.05 of tiie TEXAS Code of Criminal Procedure, where these statutory pro
vision's mandates exclusive jurdiction to here the facts provided by appellant under said
articles (SUPRA). His request for a complete copy of the transcripts or to simply allow
him to review the transcripts on a temporary loan basis. The trial court is invested with
judicial authority to preside and adrainster the law in a court of justice. His Official
Oath declares that he will faithfully discharge the duties of the same.
It is clear by the trial court records that the appellant was denied his right to a
direct appeal. Appellant has a valid claim of ineffective assistance of counsel, when his
trial counsel failed to filed a requested notice of appeal. Thus, it is obviously clear
that his State snd Federal Constitutional rights has been impeded on by his trial counsel
and the trial court. There are issues that must be resolved and the trial court: has a
judicial duty to correct amiscarriage of justice. The trial court has deprived the
appellant for (20) twenty years his constitutional right to review the transcripts.
Appellant n«ed not prove his entitlement to review the records because he has establish
-d a orima facie on the face of the records, that he has been denied a direct appeal.
and a effective trial counsel, sea attached exhibit's A.l-2. This is all that js required
•by State and Federal law.
3.
SUMMARY OF THE ARGUMENT
Appellant has a statutory right to access to the transcript by and
thtouyh the Texas Constitution, which is supported by the fourteenth
amendment to the United States Constitution. Thts trial court "ORDER"
would abridge the appellant's State and federal Constitution right.
ARGUMENT
POINT 0«E: Does the United States Constitution mandates a defendant's
right to appeal his felony conviction in State Court, by aid through
direct appeal .2
ARGUMENT £_AUTKQRITY
Appellant pleaded net guilty to the charges of delivery of a con
relied substance. He contends that their was "NO" evidence provided to the court in
-rrv:1.
which to establish nis guilty verdict. Tna prosecutor withheld a naterial witness that
would have determine the appellant innocence. Appellate requested to his trial counsel
his desire to appeal the courts judgment.- and his counsel failed to comply with his
raquest. In doing so, appellant filed a pw-se notice of appeal. Appelant trial counsel
was avare that the appsllant was attempting to appeal, hy.s coavv-,ion and he maliciously
interfered with the process of his appeal by not informing the courts that appellant
wrote hire on numerous occasions requesting his assistance with hie appeal end he lied to
the court that appellant did not request to appeal his conviction.
Ihe trial couit and the district clerk refuse to process appelant•pro-se notice
o£ appeal, and failed to appoint an attorney to preset hi* o-. -Appeal.
Appoint ^ that th. !«. Coca of Criminal »»>» -tide 26.04 ,Vernon W,
provide, that an attorney apposed CO represent adefendant in a:elony case «U
^present the defendant until the cnaro.es are disced. a» a—*nt ~a^u? ed
appeals are exhausted, or the attorney is relrevod o£ ^ ^ ££"£ ^Stf
oy other counsel. In this =*<« «"»el " ,™°,^. fflpp'-al, motion for new trial,
i» '= «*
and motion for *» •*"**-"
.ppoint-nt ™3c";r
of aPP-lla ecoun.. o ».t^ counsel".
^ ^ ». ^^a^n»nf
pro-se notice o.. ^\3"e ** ""^Jlire to copaal ihe courts juagnant. T*e
notice of hie constitutions- .i»* <- •'» •>--" ;' ^presented by counsel
aslant successfully ,et hie burden of shc^no tnat he " £, ^. ^
• •-,-.i -tao- of --he prosecution and therefor, CCOD UUjl
conn* aordeal .u*. of h P ^n^x IN vm. Ruta Appelia
Texas Rule appellate Procedure Ruj. .
The Texaf. Constitution set out the appellate jurisdiction of both the. Court of
Criminal Appeal and the Court of Appeals, see Texas Constitution, article V. §5(Provid
ing for criminal appellate jurisdiction in the Court ot Criminal Appeals): Texas Constitu
tion article V. §6 (Providing for appellate jurisdiction of Courts of Appeals). Thus,
the right to appeal in Texas is Statutory, not constitutional.
Appellant contends that it is evident that he is and was indigent at the time ox his
trial'and ha did not receive any practical assistance of counsel in protecting and pre
serving his appellate rights.. Thus, he has been denied effective assistance of counsel
on appeal ir. violation of nis due process right under the fourteenth amendment and his
due course rights under article 1 »10, of the Bill of Rights. sm4*IFFIH VS Il.LlKOSIS,
351 U.S. 12 (1956): AND DGliJLAS VS. CALIFORNIA, UQ U.S. 2!53 (1953).
\*t*x**«»*-*v%j miiwnuwn,2. 0/
S.Ct. 362, 17 L.Ed.2d. 290 (19S6HPSB CURIAM). Eiia principle is equally app},icaoie u>
.ii-.-^.n-, auaocing
proceedings in federal courts collaterally =t-=r*ina state convictions, and we do not
state c
understand the state to contend otherwise in the present case.
indigents, however, cannot o.t.in transcripts «rely to ™ ^ ^ 'a ^
^ VS. Henderson, 517 P.2d.l35 (5th cir. 1*75) Habeas Corpus > Review > Antiterrorism * Effective Death Penalty
Act
ROY JON. # 626840, Petitioner, v. JANIECOCKRELL,Director, Texas Department of Criminal When a petitioner files his 28 U.S.C.S. § 2254 petition after April 24,1996, the effective date of the
Justice, Institutional Division, Respondent Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs.
UNITED STATES DISTRICTCOURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
2002 U.S. DisL LEXIS 12066 Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
3:02-CV-S5S-P General Overview
July 2,2002, Filed; July 3,2002, Entered Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
Antiterrorism & Effective Death Penalty Act
Governments > Legislation > Statutes of Limitations > General Overview
Editorial Information: Subsequent History Governments > Legislation > Statutes of Limitations > Time Limitations
Adopting Order of August 6, 2002. Reported at: 2002 U.S. Dist. LEXIS 14483. The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year statute of limitations for
Disposition: state inmates seeking federal habeas corpus relief. 28 U.S.C.S. § 2244(d).
Magistrate's recommendation to dismiss petition for a writ of habeas corpus.
Criminal Law& Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
Counsel ROY JON, petitioner. Pro se. Tennessee Colony, TX USA. General Overview
Judges: WM. F. SANDERSON, JR., UNITED STATES MAGISTRATE JUDGE. Criminal Law & Procedure > Habeas Corpus > Defenses > Statutes of Limitations
Governments > Legislation >Statutes of Limitations > General Overview
CASE SUMMARY Governments > Legislation > Statutes of Limitations > Pleading & Proof
In a habeas corpus action, a district court may raise the affirmative defense of the statute of limitations
PROCEDURAL POSTURE: After petitioner inmate was convicted and sentenced for delivery of a sua sponte.
controlled substance, no appeal was perfected. The inmate filed a state habeas corpus application
alleging he was denied effective assistance of trial counsel and the right to a direct appeal. The application Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
was denied. The inmate filed the instant petition under 28 U.S.C.S. § 2254 raising the same claims.A General Overview
magistrate judge recommended that an inmate's habeas corpus petition be dismissed as time-barred.
Since the inmate's state habeas corpus petition was not timely, his federal petition was also time-barred. See 28 U.S.C.S. § 2244(d).
Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
OVERVIEW: In the inmate's case, all the grounds for relief, except for counsel's failure to file a notice of General Overview
appeal, occurred on or before the conclusion of his trial on August 19,1992, more than nine years before
March 10, 2002, the earliest possible date on which his federal petition could be considered filed under the In the context of determining the timeliness of a habeas corpus petition, an inmate's conviction becomes
mailbox rule. On the issue of the inmate's counsel's failure to perfect an appeal, his counsel had stated in final 30 days after lhe judgment of conviction. Tex. R. App. P. 26.2(a)(1) (Sept. 1,1997) (formerly Tex. R.
a letter on June 17,1994, that the inmate had asked him not to file an appeal. Regardless of the accuracy App. P. 41(b)(1)).
of trial counsel's statements, the fact remained that no later than on or about June 17,1994, the inmate
had personal knowledge that no direct appeal from his conviction had been perfected. The inmate could Criminal Law & Procedure > Counsel > Effective Assistance > Appeals
have raised all his grounds for relief in a Tex. Code Crim. Proc. art. 11.07 application at anytime Criminal Law & Procedure > Appeals > Reviewability > Notice of Appeal
subsequent to his conviction becoming final on September 18,1992. through April24,1997, without being
An attorney's failure to perfect an appeal, when requested to do so by a person convicted of a criminal
at risk of having his 28 U.S.C.S. § 2254 petition being dismissed as time-barred. The inmate was not
offense, constitutes ineffective assistance of counsel.
entitled to an equitable tolling of statute of limitations period.
Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
OUTCOME: A magistrate judge recommended that the inmate's petition for a writ of habeas corpus be General Overview
dismissed. Governments > Legislation > Statutes of Limitations > Tolling
Criminal Law 4 Procedure > Habeas Corpus > Procedure > General Overview
Criminal Law 4 Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
LexisNexis Headnotes Tolling
Governments > Legislation > Statutes of Limitations > General Overview
Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
lyecases l lyecases 2
C 2013 Matthew Bender& Company. Inc.. a memberof the LexisNexis Group.All rights reserved.Use of this productis subject to the © 2013 Matthew Bender & Company. Inc..a memberof the LexisNexisGroup. AHrights reserved Use of this product is subject to the
restrictions and termsand conditionsof the Matthew BenderMaster Agreement restrictions and terms and conditions of the Matthew Bender Master Agreement
considered filed under the "mailbox rule." See Application to proceed in forma pauperis signed on filed on the last day of the last extension.
March 10,2002, and submitted contemporaneously with the federal petition and brief in support. See
also Sootville v. Cain. 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed Nonetheless, Petitioner is not entitled to equitable tolling. After receiving notice of the denial of his art.
for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing). 11.07 application, Petitioner waited more than eleven months before he placed his federal petition
within the prison mail system. This additional delay — of Petitioner's own making - does not constitute
Jon learned that no direct appeal had been perfected for his conviction no later than March 19,1993, a rare and extraordinary circumstance, which is required for equitable tolling. See Melancon. 259 F.3d
when he received a letter from the DallasDistrict Clerk advising him to contact his trial attorney. 2 at 408 ("Equitable tolling should only be applied if the applicant diligently pursues § 2254 relief.");
Although arguably the clerk's letter may not have explicitlyinformed Petitioner that no appeal was ever Fisher. 174 F.3d at 715 f equity is not intended for those who sleep on their rights"). Therefore, the
perfected, any doubt concerning this matter was removed when he received a letter from John S. magistrate judge concludes that Petitioner has not presented extraordinary circumstances justifying
Fisher, inmate staff counsel, on June 17,1994, which included a copy of a letter from Jon's trial equitable tolling.
attorney, stating that Jon had not asked him to file a notice of appeal. In the letter trial counsel could
RECOMMENDATION:
not explainwhy Jon's pro se notice of appeal had not been filedof record. Regardless of the accuracy
of trial counsel's statements in the letter, the fact remains that no later than on or about June 17, For the foregoing reasons the magistrate judge recommends that the District Court dismiss the
1994, Petitioner had personal knowledge that no direct appeal from his conviction had been perfected. petition for a writ of habeas corpus as barred by the one-year limitation period. See 28 U.S.C. §
See Exhs. 2,3, and 4, attached to Petitioner's Brief filed on March 19, 2002. 2244(d).
Jon correctly notes that an attorney's failure to perfect an appeal, when requested to do so by a The Clerk will transmit a copy of this recommendation to Petitioner.
person convicted of a criminal offense, constitutes ineffective assistance of counsel. However, the
WM. F. SANDERSON, JR.
District Court cannot reach the merits of such a claim when raised in a time-barred § 2254 petition.
Jon could have raised all his grounds for relief in an art. 11.07 application at anytime subsequent to UNITED STATES MAGISTRATE JUDGE
his conviction becoming final on September 18,1992, through April 24,1997, without being at risk of
NOTICE
having his § 2254 petition being dismissed as time-barred. 3 By his own admission Jon did not seek
habeas relief in the convicting court until November 28,2000, (Petition at P 11, p. 3), some three and In the event that you wish to object to this recommendation, you are hereby notified that you must file
one-half years after the limitation period had expired. Scott, 227 F.3d at 263 (state habeas application your written objections within ten days after being served with a copy of this recommendation.
does not toll limitation period when it is filed after the limitation period has expired). Therefore, Jon's Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's
federal petition is time barred. 4 failure to file written objections to these proposed findings of fact and conclusions of law within such
Petitioner correctly notes that the limitation period may be equitably tolled. However, such applies only ten day period may bar a de novo determination by the district, judge of any finding of fact or
conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on
in rare and exceptional circumstances, and only if the petitioner diligently pursues habeas relief. See
Melancon v. Kaylo. 259 F.3d 401, 408 (5th Cir. 2001); Phillips v. Donnelly. 216 F.3d 508, 511 (5th Cir.
appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district
court.
2000), reh'q granted in part. 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168,171-72
(5th Cir. 2000), cert, denied, 531 U.S. 1035,148 L. Ed. 2d 532.121 S. Ct. 622 (2000); Fishery. Footnotes
Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert, denied. 531 U.S. 1164,148 L. Ed. 2d 991,121 S.
Ct. 1124(2001).
Petitioner's reliance on Davis v. Johnson, 158 F.3d 806,811 (5th Cir. 1998), cert, denied. 526 U.S. 1
1074,143 L. Ed. 2d 558,119 S. Ct. 1474 (1999), is without merit. The facts in Davis which gave raise
to the Fifth Circuit's decision to apply equitable tolling are clearly distinguishable from the facts in this On March 26, 2002, the magistrate judge informed Petitioner of the one-year statute of limitations and
case. Specifically, the state writ in Davis was denied on December 1,1993. Ex parte Davis. 866 granted him thirty days to show cause why his petition should not be dismissed as barred by the
S.W.2d 234 (Tex. Crim. App. 1993). On February 13,1997, Davis requested the federal court to limitation period. On May 30, 2002, Petitioner filed a response to the show cause order.
2
appoint counsel because his state habeas counsel was incapacitated. On or about February 27,1997,
he filed a motion to extend time within which to file his federal petition. On March 4,1997, the federal See Petitioner's response to show cause order, filed on May 30.2002, at 12. See also Exh. 1,
court appointed counsel and granted extension until May 26,1997, to file the federal petition. The attached to Petitioner's Brief filed on March 19.2002.
federal court granted two additional extensions to file the petition and on May 8,1998, Petitioner filed 3
his federal petition.
The limitation period is tolled during the pendency of state proceeding collaterally attacking a state
Davis, which was a death penalty case, presented several extenuating circumstances. The request for prisoner's conviction. See 28 U.S.C. § 2244(d)(2); Sonnier v. Johnson, 161 F.3d 941 (5th Cir. 1998)
appointment of counsel - because state habeas counsel was incapacitated - was filed prior to (per curiam); Fields v. Johnson. 159 F.3d 914,916 (5th Cir. 1998). Although practically speaking a
expiration of the one-year grace period. The federal court appointed federal habeas counsel before prisoner would be ill-advised to wait until the last day of the one-year grace period to seek
the expiration of the one-year grace period and granted an extension of time to file beyond the state-collateral relief, the fact remains that Jon had more than thirty four months from the date on
one-year grace period, followed by two additional extensions. Lastly in Davis, the federal petition was which he clearly knew that his alleged request to appeal his conviction had not been complied within
lyecases s lyecases 6
•C 2013 Matthew Bender & Company. Inc.. a member of the LexisNexis Group. All rights reserved. Use of this product is subject to the ©2013 Matthew Bender & Company, bx.. a member of the LexisNexis Group. All rights reserved Use of this product is subject to the
restrictionsand terms and conditions of the Matthew Bender Master Agreement restrictions and terms and conditions of the Matthew Bender Master Agreement
IT IS FURTHER ORDERED that the Clerk shall transmit a true copy of this judgment and the order
adopting the Findings, Conclusions and Recommendation of the United States Magistrate Judge, to
Petitioner.
ROY JON v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, SIGNED this 6th day of August, 2002.
INSTITUTIONAL DIVISION
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
2002 U.S. Dist. LEXIS 14483 Jorge A. Solis
3-02-CV-555-P
August 6, 2002, Decided
August 6, 2002, Filed; August 7, 2002, Entered
Editorial Information: Prior History
Jon v. Cockrell, 2002 U.S. Dist. LEXIS 12066 (N.D. Tex. July 2, 2002)
Disposition:
Findings, conclusions and recommendation of magistrate judge adopted.
Counsel ROY JON, petitioner. Pro se, TDCJ, Michael Unit, Tennessee Colony,
TX USA.
Judges: Jorge A. Solis, UNITED STATES DISTRICT JUDGE.
Opinion
Opinion by: Jorge A. Solis
Opinion
ORDER
After making an independent review of the pleadings, files and records in this case, and the Findings,
Conclusions and Recommendation of the United States Magistrate Judge, I am of the opinion that the
findings and conclusions of the Magistrate Judge are correct and they are adopted as the findings and
conclusions of the Court.
IT IS. THEREFORE, ORDERED that the findings, conclusions and recommendation of the United
States Magistrate Judge are adopted.
SIGNED this 6th day of August, 2002.
UNITED STATES DISTRICT JUDGE
Jorge A. Solis
JUDGMENT
This action came on for consideration by the Court, and the issues having been duly considered and a
decision duly rendered,
It is ORDERED, ADJUDGED AND DECREED that the petition be, and it is hereby, dismissed as
barred by the one-year limitation period.
lyecases l lyecases 2
C2013 Matthew Bender & Company. Inc., a member of the LexisNexis Group. All rights reserved Use of this product is subject to the t> 2013 MatthewBender& Company.Inc..a memberof the LextsNexisGroup.All rightsreserved. Use of this productis subjectto the
restrictionsand terms and conditions of the Matthew Bender Master Agreement restrictions and terms and conditions of the Matthew Bender Master Agreement
DISMISS; and Opinion Filed January 23, 2015.
In The
Court of Appeals
ifftftlj district of QJexaa at Dallas
No. 05-15-00075-CR
ROY JON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. W92-63805-L
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
Roy Jon was convicted of delivery of a controlled substance and sentenced to twenty-five
years' imprisonment in 1992. No appeal was taken from that conviction. Appellant has filed
several applications for writ of habeas corpus in both the state and federal courts.1 On October
21, 2014, appellant filed an "application for writ of habeas corpus" in the trial court to obtain a
copy of the trial court record so that he can file a post-conviction application for writ of habeas
corpus. The trial court denied the "application" by written order dated December 18, 2014, and
this appeal followed. We conclude we lackjurisdiction over the appeal.
"Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be
1The background information is taken from the pro se brief appellant filed with his notice ofappeal.
legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.
at 523. "The standard to determine whether an appellate court has jurisdiction to hear and
determine a case 'is not whether the appeal is precluded by law, but whether the appeal is
authorized by law.'" Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting
Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). The right to appeal in a
criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex.
Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also Tex.
Code Crim. P. Ann. art. 44.02 (West 2006) (providing right of appeal for defendant); Tex. R.
App. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by
criminal defendants only after conviction or the entry of an appealable order. See Wright v.
State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).
In appellant's first issue in his pro se brief, he contends he was denied the right to appeal
in 1992 due to ineffective assistance of counsel. In his second issue, he challenges the trial
court's order denying his motion to obtain the trial record so that he can establish he was actually
innocent of the charges and that trial counsel was ineffective in not appealing the conviction.
An order denying a motion for post-conviction access to the trial court record is not an
appealable order. See Wright, 969 S.W.2d at 589. Moreover, this Court has no jurisdiction to
review appellant's claim that trial counsel was ineffective in not filing a notice of appeal in 1992
and has no authority to grant appellant an out-of-time appeal. See TEX. R. APP. P. 26.2(a); Slaton
v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).
-2-
We dismiss the appeal for want ofjurisdiction.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
150075F.U05
GLaurt of Appeals
ifliftl? district of QJexas at ©alias
JUDGMENT
ROY JON, Appellant On Appeal from the Criminal District Court
No. 5, Dallas County, Texas
No. 05-15-00075-CR V. Trial Court Cause No. W92-63805-L.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of
jurisdiction.
Judgment entered this 23rd day of January, 2015.
-A-
*oy 3on ^626840
O.B. Ellis Unit
•S97 FM $80 77340
Mintsvile, Texas
Lisa Matz
Clerk of the court
Fifth Court of Appeals
George L. Allen, Sr. Court Bldg
600 Commerce Street, ste. 200
Dallas, Texas 75202-4658
S
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