Jon, Roy

• Court: Court of Appeals of Texas
• Decided: February 27, 2015
• Docket: PD-0225-15
• Status: Published

Opinion

PD-0225-15

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U,T7 F/n^W ,1 tiuNis^(l€(T£^^ yr^Ho oc 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

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

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 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#).

% £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

s* ROY JON #625840 pro/se H .^>.jiirjnn.IKW'!»••**•*•

ORAL ARGUMENTS REQUESTED

APPEAL NO. ft5-lS-00035-(?£ Court of Appeal JAH 1e 2015 IN THE COURT OF APPEALS UsaMatz FOR THE Clerk, 5th District FIFTH SUPREME JUDICIAL DISTRICT

FZ'LE^ IN Court of Appeals

ROY JON JAN 1 0 2015 Appellant, L;sa Matz Clerk, 5th District

THE STATE OF TEXAS Appellee.

On Appeal from the_ District Court

of Dallas County, Texas Honorable Carter Thompson, Judge Presiding

BRIEF OF APPELLANT

ROY JON TDCJ-ID NO.#626840 O.B. Ellis Unit 169.7 FM 980 Huntsville, Texas 77340 APPEARING PRO-SE IDENTTITY OF PARTIES AND COUNSEL

In order that the members of this Court mat determine the parties, Appellant certifies that the following is a complete list of parties, attorneys, and other persons with an interest in the outcome of this appeal THE appellant do not have any information or documentation concerning this appeal, the trial court is denying the appellant access to the records.

ROY JON #626840 Defendant-Appellant

THE STATE OF TEXAS

CRIMINAL DIVISION

FRANK CROWLEY COURTS BUILDIN.'! DALLAS, TEXAS 75207-4313

Hon. Carter Thompson, Judge Presiding Criminal District Court No.5 Dallas County, Texas 75207-4313 BflHB(jMl^lWH.yi-;i-

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iii

STATEMENT OF THE CASE 1

POINTS PRESENTED 2

STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 4

ARGUMENT

PRAYER

CERTIFICATE OF SERVICE

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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,

j?OIKT TWO: Does the Unitec; States Constitution mandate a defendant challenging a felony conviction, his right to the trial court records and/or transcripts

ARGUMENT & AUTHORITY

The trial court has ordered that the appellant be denied a complete copy of the transciotts for fre«, in order to prepare his application for a post-conviction ircit of habeas corpus. The court concluded that the appellant failed to sufficiently stated a particularized need for the requested documents. The trial court failed to address the appellant's request for a loan of the transcripts- dor a limited time, see cause no. K92-&3E05--L, ORDER dated December 13,2014.

.n-armin «. miosis, plurality the supremo court held t^t ^'-^ *™

::;:::;!.: tiffin ,*»<** ^ wm -—«"*»* -«—• ::ndiuents must be furnished acopy of the'transcript for appellate review of an .avers* ae decision in post-conviction proceedings. Long VS. District Court, 38o U.S. 1!>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)

PRAYER FOR RELIEF

Based upon the undisputed facts, the law and arguments contained herein, appellant respectfully prays that this court sustain appellant's points and allow him access to the trial court transcripts.

DECLARATION (

I,, Roy Jon #6268400 declare under penality of perjury that the foregoing is true and correct to the best of my ability pursuant to 28 U.S.C. §§ 1746. /s/_ ROY JON

r-TOTTPTr&TR OF SERVICE

T, Roy Jon, ,626840, do hereby certify that a ^ - - - — Brief of pliant has been served by olacing same u» the U.S. MAIL 12TH day of January_2015^_ Addressed to: Lisa Matz Clerk Of the court RESPECTFULLY SUBMITTED Rifth Court of Appeals Jleorge L. Allen, Sr. Court Bldg. <^J 600 Commerence Street, Ste. §0.0 -t\< Dallas, Texas 75202-4658 ROY JON(jUMtV appearing pro-se O.B. Ellis Unit 1697 FM 980 C.C. FILED 8 Huntsville, Texas 77340 Genera/ Overview Criminal Law & Procedure > 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.

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 t>