IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEJONATHAN E. COX, §

Petitioner, §

§

v. § Civil Action No. 3:06-CV-0123-B (BH)

§

NATHANIEL QUARTERMAN, Director, § 

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United

States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner Lejonathan E. Cox, TDCJ # 1104964, is a state prisoner who in custody of the

Texas Department of Criminal Justice, Correctional Institutions Division, in Tennessee Colony,

Texas.

Respondent Nathaniel Quarterman is the Director of the Texas Department of Criminal

Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

On August 31, 1998, pursuant to a plea agreement, Cox pled guilty to aggravated robbery
1

On the same date, the trial court also revoked Cox’s probation in cause number F-9647511-N for unlawful

possession of a firearm. Cox does not challenge that conviction in this action.

2

“State Habeas R.,” referenced herein, refers to the record for Cox’s state habeas Application No. WR54,016,03.

3

Typically, a pro se habeas petition is deemed filed when the petition is delivered to prison authorities for

mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). Cox indicates that he placed the petition in the prison

mailing system on December 17, 2005, however, the envelope in which it was sent indicates a postmark of January 14,

2006. Because Cox does not explain this near month delay, he is not afforded the benefit of the so-called mailbox rule.

His petition is deemed filed on January 14, 2006, the date of the postmark.

2

with a deadly weapon in cause number F-9843475 in the 195th Judicial District Court of Dallas

County, Texas; he was placed on deferred adjudication community supervision for five years and

ordered to pay a fine and costs. (Clerk’s R. at 73.) Subsequently, the state moved to proceed with

adjudication of Cox’s guilt, and on March 1, 2002, Cox entered an open plea of true to the

allegations in the state’s motion; the trial court then adjudicated his guilt and assessed his

punishment at thirty years’ confinement.1

 (Clerk’s R. at 84-85, 88-91.) The Fifth District Court of

Appeals of Texas affirmed the trial court’s judgment adjudicating guilt, and on February 4, 2004,

the Texas Court of Criminal Appeals denied Cox’s petition for discretionary review. Cox v. Texas,

No. 05-02-00506-CR, slip copy (Tex. App.–Dallas July 7, 2003) (not designated for publication);

Cox v. Texas, PDR No. 1429-03. Cox did not seek writ of certiorari. (Petition at 3.) 

On May 22, 2002, Cox filed a state habeas application for writ of habeas corpus challenging

his conviction and sentence, which was dismissed on the grounds that his direct appeal remained

pending. Ex parte Cox, Application No. 54,016-02, at cover. On August 31, 2004, Cox filed a

second state habeas application, which was denied on August 17, 2005, without written order by the

Texas Court of Criminal Appeals on the findings of the trial court. Ex parte Cox, Application No.

WR-54,016-03, at cover.2

 Cox filed this petition on January 14, 2006.3 Quarterman has filed an

answer and documentary exhibits, to which Cox filed a reply. 
3

D. RULE 5 STATEMENT

Quarterman believes that Cox has sufficiently exhausted his claims as required by 28 U.S.C.

§ 2254(b)(1). (Resp’t Answer at 3.) 

E. ISSUES

Cox raises six multifarious grounds for relief, which are construed as follows:

(1) His guilty plea is void because the trial court violated the provisions of the plea

agreement;

(2) His guilty plea is void because the trial court failed to admonish him as to the

consequences of his plea;

(3) The state courts improperly rejected his no-evidence claim on state habeas review;

(4) The state courts applied an improper standard of review in determining his

ineffective assistance claims on state habeas review;

(5) He was denied his right of allocution, so as to protest the trial court’s deadly weapon

finding; and 

(6) He was denied effective assistance of counsel on appeal. (Petition at 7-8 &

attachment).

III. STATUTE OF LIMITATIONS

Quarterman asserts that Cox’s grounds one, two, three, four (in part), and five are timebarred and should be dismissed with prejudice under the federal statute of limitations. (Resp’t

Answer at 4-6.) 

Section 2244(d) of Title 18 imposes a one-year statute of limitations for filing a petition for

federal habeas corpus relief:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of– 

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking
4

Caldwell is dispositive of Cox’s claim in his reply that grounds one through five “did not occur until the

vacation of the prior judgment.” (Pet’r reply at 5 n.2) Because this Court is bound by Caldwell, Cox’s argument that

this Court should find Caldwell unconstitutional as a matter of due process, or it should rely on Seventh Circuit case law

to find that Caldwell is inapplicable to his case because he was permitted to enter a “new plea” is likewise without merit.

4

such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented from filing

by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of

due diligence.

(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim

is pending shall not be counted toward any period of limitation under this subsection.

18 U.S.C. § 2244(d)(1)-(2).

To the extent Cox’s claims involve alleged facts or events related to his original plea or the

original plea proceedings, including the validity and voluntariness of his guilty plea, the sufficiency

of the evidence, and ineffective assistance of trial counsel, the federal statute of limitations

commenced when the state court’s deferred adjudication order became final by the conclusion of

direct review or the expiration of the time for seeking such review. Id. § 2244(d)(1)(A); Caldwell

v. Dretke, 429 F.3d 521, 528-30 (5th Cir. 2005), cert. denied, 127 S. Ct. 548 (2006).4

 For purposes

of this provision, the trial court’s deferred adjudication order became final, and the one-year

limitations period began to run, upon expiration of the time that Cox had for filing a timely notice

of appeal on September 30, 1998. It expired one year later on September 30, 1999, absent any
5

applicable tolling. Id. 

Cox’s state habeas application filed on January 14, 2006, long after the limitations period

had already expired, did not operate to toll the limitations period for purposes of § 2244(d)(2). See

Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Cox demonstrated a valid reason to

justify his failure to timely file a federal habeas corpus petition as to these claims, and the record

reveals none. He is therefore not entitled to equitable tolling, which is available only in rare and

exceptional circumstances when an extraordinary factor beyond the petitioner’s control prevents him

from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

Accordingly, Cox’s grounds one (except for two claims, discussed infra), two, three, and four

(except for one claim, discussed infra) are time-barred as they relate to the original plea or original

plea proceedings.

To the extent Cox’s claims involve alleged facts or events related to, or occurring during,

the adjudication proceedings, the limitations period commenced when the judgment adjudicating

guilt became final by the conclusion of direct review or the expiration of the time for seeking such

review under § 2244(d)(1)(A). For purposes of this provision, the judgment adjudicating guilt

became final, and the one-year limitations period began to run, upon expiration of the time that Cox

had for seeking certiorari in the United States Supreme Court on May 4, 2004; it closed on May 4,

2005. See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SUP.CT.R. 13.1. Allowing for

tolling during the pendency of his state habeas application, from August 31, 2004, through August

17, 2005, Cox’s January 14, 2006 federal petition is timely as to claims one (in part), four (in part)

and five.

III. APPLICABLE LAW

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant
6

to the judgment of a state court shall not be granted with respect to any claim that was adjudicated

on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in

a decision that was contrary to, or involved an unreasonable application of, clearly established

federal law, or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is

contrary to clearly established federal law if the state court arrives at a conclusion opposite to that

reached by the Supreme Court of the United States on a question of law or if the state court decides

a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams

v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

A state court decision will be an unreasonable application of clearly established federal law if it

correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams,

529 U.S. at 407-08.

Further, federal courts give great deference to a state court’s factual findings. Hill, 210 F.3d

at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court

shall be presumed to be correct. The applicant has the burden of rebutting the presumption of

correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas

Court of Criminal Appeals denies relief in a state habeas corpus application without written order,

as the court did here, it is an adjudication on the merits, which is entitled to this presumption. See

Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472

(Tex.Crim. App. 1997).

IV. ASSESSMENT OF PUNISHMENT

In his first ground, Cox claims the trial court’s assessment of punishment post-adjudication

was unconstitutional because he was punished as the primary actor in the offense instead of an
5

Under this ground, Cox also claims his guilty plea is void because the trial court violated the provisions of the

plea agreement by sentencing him as the primary actor, under the law of parties, in the robbery and entering an

affirmative deadly weapon finding and because the trial court failed to admonish him prior to accepting the plea of guilty.

(Petition at 7) Cox appears to confuse his original guilty plea with his plea of true in the adjudication proceedings. The

issue of his guilt was determined in the 1998 plea proceedings, including the affirmative finding that Cox used or

exhibited a deadly weapon during the offense, and Cox was admonished regarding the effect of such a finding and the

full range of punishment applicable to the offense should his deferred adjudication probation be revoked in the future.

(2Reporter’s R. at 11) Nevertheless, these issues are time-barred.

7

accomplice under the law of parties as agreed in the plea agreement.5

 (2Reporter’s R. at 10; Petition

at 7; Pet’r Memorandum of Law at 7-11.) Cox admitted to acting as an accomplice in the offense

but testified that he did not use or exhibit a firearm. (2Reporter’s R. at 9-10.) Any such distinction

between accomplices and principals, however, was abolished under state law. Each party to an

offense may be charged, convicted, and sentenced within the applicable range of punishment for the

offense. TEX. PENAL CODE ANN. § 7.01 (Vernon 2003). The applicable range of incarcerative

punishment for aggravated robbery is five to ninety-nine years’ confinement or life. The trial court

admonished Cox of the range at both the original plea proceeding and at the adjudication

proceeding. (2Reporter’s R. at 5; 3Reporter’s R. at 4-5) His 30-year sentence falls within the

applicable statutory range for the offense, of which he had been advised. See Haynes v. Butler, 825

F.2d 921, 923-24 (5th Cir. 1987) (holding that wide discretion is accorded a state trial court’s

sentencing decision and claims arising out of the decision are not generally constitutionally

cognizable, therefore, relief is required only where the petitioner is able to show that the sentence

imposed exceeds or is outside the statutory limits, or is wholly unauthorized by law). Thus, his

sentence does not implicate a constitutional violation.

Further, there is no support in the record that the trial court violated the terms of the plea

agreement of the parties by including an affirmative deadly weapon finding in the judgment

adjudicating guilt. The written plea agreement reflects that Cox was pleading guilty to the offense

of aggravated robbery with a deadly weapon and was signed by Cox and his counsel. (Clerk’s R.
6

The fact that the state habeas court cited to relevant state law and not specifically to Strickland does not, in

and of itself, indicate the state courts necessarily applied an incorrect standard. (State Habeas R. at 59.) Of note, the

cited state court opinions refer to and apply the Strickland two-prong test in addressing ineffective assistance claims.

8

at 70-71) Cox judicially confessed to committing robbery with a firearm, and the judgment itself

contained an express finding in this regard. (Clerk’s R. at 70-72) Finally, Cox was admonished by

the trial court during the plea proceeding regarding the effect of an affirmative deadly weapon

finding, and Cox indicated that he understood the consequences of such a finding. (2Reporter’s R.

at 11) Solemn declarations in open court carry a strong presumption of verity, and Cox has not

overcome them. See Blackledge v. Allison, 431 U.S. 63, 74, (1977). Cox presents no proof that it

was the intent of the parties to waive the affirmative deadly finding allegation in the indictment or

to agree that such a finding would not be included in the trial court’s judgment as part of the plea

agreement. Nor has he shown he was misled as to the consequences of such a finding. Having

reviewed the record, and applied the presumption of regularity of the state court records, nothing

suggests the trial court violated the agreement of the parties by entering an affirmative deadly

weapon finding upon adjudicating Cox’s guilt.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

In his fourth ground, Cox claims that the state courts applied a contrary to and unreasonable

standard in his state habeas action, or misapplied the standard set forth in Strickland v. Washington,

466 U.S. 668, 688 (1984), to his ineffective assistance claims because the state courts did not

specifically cite to Strickland, and instead relied on state case law.6

 He claims he received

ineffective assistance during the adjudication proceeding because trial counsel allowed him to be

“resentenced by a biased judge who had made a predetermined outcome of his punishment” in the
7

The remainder of Cox’s claims under this ground are time-barred because they relate to trial counsel’s

performance during the original plea proceeding.

9

event of revocation.7

 (Petition at 8; Pet’r Memorandum of Law at 24, 34-36) Specifically, he

complains of the following emphasized remark by the trial judge at the conclusion of the original

plea proceeding:

[I]’m handing you a letter that I give to probationers which explains how to

avoid having your probation adjudicated or revoked. I suggest that you read it and

review it often.

I have affixed a red dot to each of the docket sheets in these cases. If I see

you back here I will remember you, and you cannot expect any further mercy,

compassion, understanding, sympathy, nothing. You understand me? (2Reporter’s

R. at 11) (emphasis added).

A criminal defendant has a constitutional right to the effective assistance of counsel at trial

and on a first appeal as of right. U.S.CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95

(1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738,

744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v.

Washington. 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001)

(applying the Strickland standard to ineffective assistance claims against appellate counsel). To

establish ineffective assistance of counsel a petitioner must show (1) that counsel’s performance fell

below an objective standard of reasonableness, and (2) that but for counsel’s deficient performance

the result of the proceeding would have been different. Strickland, 466 U.S. at 688. Both prongs

of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697. However,

it is not necessary to address both prongs of the test if the petitioner makes an insufficient showing

on one. Id. at 698. 

Due process requires a neutral and detached hearing body or officer. See Gagnon v.

Scarpelli, 411 U.S. 778, 786 (1973). At the adjudication hearing, the trial judge did not mention the
10

remark or the “red dot.” Instead, the judge discussed the full range of punishment and stated that

he did not know what he was going to do until he heard evidence. (3Reporter’s R. at 6-23) Cox

testified and admitted to violating virtually all of the conditions of his release, failing to report for

two to three years, and having a substance abuse problem. Cox’s wife also testified and made a plea

for leniency on his behalf. At the conclusion of the hearing, the judge sentenced Cox to thirty years’

confinement. Under these circumstances, it does not appear the earlier comment by the judge

reflected bias. or that the judge did not consider the full range of punishment. See, e.g., Brumit v.

Texas, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006). According, Cox cannot demonstrate

counsel was ineffective under Strickland’s first prong by not objecting and moving for recusal.

Counsel is not required to make frivolous motions. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.

1990).

In his sixth ground, Cox claims his appellate counsel was ineffective by filing an Anders

brief and foregoing the “dead-bang winners” raised in this petition. (Petition, supplemental p.; Pet’r

Memorandum of Law at 40-41) An attorney appointed to represent an indigent defendant on appeal

may conclude that an appeal would be frivolous and file a motion to withdraw accompanied by a

brief referring to anything in the record that might arguably support the appeal. Anders, 386 U.S.

at 744-45. Anders set forth a procedure for an appellate counsel to follow in seeking permission to

withdraw from the representation when he concludes that an appeal would be frivolous. Id. 

The proper standard for evaluating a petitioner’s claim that appellate counsel was ineffective

by filing an Anders brief is that enunciated in Strickland. See Smith v. Robbins, 528 U.S. 259, 285

(2000). Where the defendant has received appellate counsel who has complied with a valid state

procedure for determining whether the defendant’s appeal is frivolous, and the state has not at any

time left the defendant without counsel on appeal, there is no reason to presume that the defendant
11

has been prejudiced. Id. Rather, a federal court may presume that the result of the proceedings on

appeal was reliable and require a habeas petitioner claiming ineffective assistance of appellate

counsel to prove the presumption incorrect in his particular case. Id. With a claim that appellate

counsel erroneously failed to file a merits brief, a defendant can satisfy the first part of the Strickland

test by showing that a reasonably competent attorney would have found nonfrivolous issues and

filed a merits brief raising them. Id. Thereafter, he has the burden of demonstrating prejudice–i.e.,

a reasonable probability that, but for his counsel’s unreasonable failure to file a merits brief, he

would have prevailed on his appeal. Id. Cox cannot demonstrate prejudice because he has not

identified any meritorious claims upon which he was likely to prevail on appeal, and he is therefore

not entitled to relief on this claim. See Strickland, 466 U.S. at 697 (holding the performance

component need not be addressed first).

VI. RIGHT TO ALLOCUTION

In claim five, Cox claims the trial court violated his right to allocution by refusing to allow

him to protest the deadly weapon finding prior to imposing sentence. (Petition, supplemental pg.;

Pet’r Memorandum of Law at 37-39.) While the right to allocution is deeply rooted in our legal

tradition, it is neither constitutional nor jurisdictional. See United States v. Reyna, 358 F.3d 344, 349

(5th Cir. 2004); United States v. Magwood, 358 F.3d 826, 830 (5th Cir. 2006) (denial of right to

allocution not a fundamental defect inherently resulting in complete miscarriage of justice). Thus,

the denial of allocution cannot support federal habeas relief.

VII. RECOMMENDATION

Cox’s petition for writ of habeas corpus should be DISMISSED with prejudice as timebarred, in part, and denied, in part.
12

SIGNED on this 2nd day of May, 2008.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on

all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten days after

being served with a copy. A party filing objections must specifically identify those findings, conclusions, or

recommendation to which objections are being made. The District Court need not consider frivolous, conclusory

or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation

within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and

legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain

error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE