writ No. 10-09383-<; 301 850 v |q _

ccA No. wR-30,830

F:X PARTE william EARL DURHAM § TEXAS COURT OF CRIMINAL
§ APPEALS AT
Applicant, Pro se § _' AUSTIN,_ TEXAS

 

RECE|VED |N
COURT OF CR!MINAL APPEALS
APPLICANT'$ oBJECIIONS 10 TRIAL coURTS FINDINGS

IN H.IS HABEAS coRPUS 11.07 JUL 17 2915

` AND REQUEST TO REMAND FOR EVIDENTIARY HEARING
Abemcosia,@lsii<

 

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW, William Durham Applicant Pro Se in the above entitled and numbered
CauSe and respectfully presents this his objections to the trial courts findings
and request to remand for evidentiary hearing and in support thereof will respectfully

show the following.

l.

The basic premise of Durham's Application (Habeas Corpus){is that TDCJ-ID removed
his Discretionary Mandatory Supervision Date, not because of any current Aggravating
elements, but based upon a 1992 Burglary of a Habitation, (Penal Code 30.02) whereat
there was no findings of Subsection (d)(Z) Weapons or Explosives, or (d)(3) No injury
to anyone before, during or after the Burglary, and with such the removal of Applicants
' Mandatory Supervision Date is legally unwarranted based upon those provisions and
pursuant to House Bill 1433, codified as Texas Gov't Code 508.149.

Applicant proffers that this Honorable Court has already decidied the exact same

fundamental issues in Ex Parte Mabry, Ex Parte Thompson. and Ex Parte Keller 1

All of which included the same arguement as Applicant herein, and that is

 

in short Mandatory Supervision for offense committed before the enactement of House

Bill 1433.Tex Gov't Code 508.149.

Moreover. Durham tenders that his original Convicting Court (232nd District, Harris
County) Cause No 682249. already issued thier response indicating the status of
the offense is one that is eligible for mandatory supervision and for the 252nd
District court or TDCJ-ID to come back year later and force this applicant to re-

address the issue is a waste of this courts time. see 682249-E Ex Parte Durham.

Thompson, Keller and Mabry all faced the same condition(s) as Durham in that the
TDCJ agency attempted to deprive them;of some right based upon newly enacted statutes
that did not apply, herein Durham argues that his 1992 Burglary had no Victims or
weapons and that he was eligible for Mandatory Supervision under the old law and
that a first degree Burglary from 1992 with no weapons or explosives (d)(2) or
lnjury to anyone (d)(3) is not one found on the Texas Gov't Code 508.149 list.

And this is an issue or subject best determined in an evidentiary hearing.

ll.

Applicant further argues that'the Honorable Judge has misapplied or misunderstood
Tex. Code of Crim. Proc. 11;07 §A(a) - (c). More specifically, Applicant does agre
that ha did tila his first Appli¢atioh <ccA case No. wR-30-830-10), but argues that
this was a writ based upon his Appeal Lawyer not informing him of his appeal being
affirmed, and the CCA held previously in McPherson 2 ;

"[I]nitial habeas‘corpus application seehing an out-of-time

appeal was not a Challenge bothe conlctlon and therefore,

did not bar a subsequint application claiming lneffective

Assistance of Counsel. The initial application did not directly
a _ seek to overturn the conviction..."

With this stated. Applicant argues that the Judge was incorrect in trying to use
this first habeas corpus to establish an Abuse of writ claim against Applicant and
denying him relief on this instant application, based upon such Applicant objects

to this finding based on those ruling of T£`CCA in McPherson. id.

lll.
Applicant agrees with the Judges finding in Applicants second writ, as this was
the only application this Applicant has filed with respect to his final judgment
and conviction, this challenge is currently pending in the United States Federal

Court.

Herein, the Judge proffers that Applicant should have listed his current claims
in his last application and not waited until now to file what she considers a
subsequint writ. and relies soley upon Ex Parte Whiteside 3 and Tex Code Crim Proc.
11.07 §4 (a)-(c).

Applicant respectfully avers that two things prevented Applicant from listing
his current claim in the previous application 1) Applicants tolling period under
the Affective Death Penalty - Anti Terrorist Act (AEDPA) on his conviction was
Coming to an end in short order. and during the same period, applicant was trying
to satisfy his other legal obligation under Texas Gov't Code 501.0081 (Time Credit
Dispute Resolution) whereat, the TDCJ-ID Classifications and Records Department
has 180 Days to answer any time credit disputes with offenders, with such Applicant
was faced with losing his ability to proceed into Federal Courts under a 28 U.S.C.
2254 by defaulting underethe "AEDPA" or file and contue to wait on the state agency
(TDCJ-ID) to respond to the Time Credit Resolution Issue, Mandatory Superivsion.

2) Applicant filed his 11.07 and was unable to present the claims involving

the Mandatory Supervision issues because the subject had not ripened, i.e. had this
applicant filed without first getting his Time Credit Resolution Issue decided by
TDCJ-ID the court would have dismissed the issue as failure to exhaust Administrative
Remedies, but on the other hand if l file my State writ after the one year deadlineunder
AEDPA l lose my right to redress my claims in fedweral court.

The Fifth Circuit stated;

"[P]RISONER ls ENTITLED in RAlsE Parole /Mahdatory supervision
Claims in State Habeas Application, where he had filed his
"Time Credit Resolution Form"and he did not get a response

until after 180 days. Walters v. Quarterman

Applicant proffers that he has diligently pursued every available avenue afforded
to him by and through TDCJ-ID to resolve this issue without haveing to redress the

Criminal Court System and has had no positive result with such.

IV.
Applicant tenders that this isinot$an attack on his final conviction

and that he was not able to present the current claims on his previous
application because the TDCJ-ID Agency had not completed its investigation
and Applicants Administrative remedy had not been resolved.

Further, Applicants time period under AEDPA was ending and Applicant
in good conscience could not allow the period to expire, while knowing
he had an additional right to a subsequint Habeas Application under
the provisions of 11.07 §A(a)-(c).

In close,-Applicant objects to the District Judges fi:n¢ findings
herein stating he had not violated any Abuse of writ provisions and
was unable to present-this new claim when the issue had not ripened
and is not a challenge to his Judgment or conviction§-with such. Applicant
prays this Honorable 'Court remand the Application for Habeas Corpus

for an evidentiary hearing. so prayed.

Respectfully Submitted _M
William Durham

 

1

CASES

1. Ex Parte Thompson 173 S.W.Bd 458, 460-461, (Tex. Crim. App.2005)
Ex Parte Mabry 137 S.W.3d 58, 59-60 (Tex. Crim, App. 2005)
EX Parte Keller 173 S.W.3d 492 (2005) >
Ex Parte Hall 995 S.W;Zd 151. 152 (Tex. Crim. App. 1999)

2. Ex Parte McPherson 32 S.W.3d 860 (Tex. Crim. App 2000)
3. EX Parte Whiteside 12 S.W.3d 819 (Tex. Crim. App. 2000)

4.Walter v. Quarterman C.A. 5 (Tex) 2007, 258 Fed. Appx. 697, 2007
WL 4372930; (Quote Stone v. Thaler C.A.5 (Tex) 2010, 614 F.3d 136.

 

DECLARATION

Applicant states under the penalty of perjury that he has read and
understands everything in this Application to the Court of Criminal
Appeals. and says that all it contains is true and correct to the
best of his knowledge. l

Wfllz;g%é§;:;;;j§ppl1cant Pro Se

Verfification

Applicant verifies that he has placed a tsue and correct copy of this
Applicants objections and remand for Evidentiary hearing in the U.S.
Mail Box on the Ramsey One Unit at 100 FM 655, Rosharon, Texas 77583
to the Criminal District Attorney, at the Jefferson County Courthouse
at 1085 Pearl Street, 3rd floor
Beaumont, Texas 77701. on July 14, 2015

%Wx/

William Durham Applicant Pro Se

 

 

William E. Durham 1740286
"; Ramsey One Unit

1100 FM 655
'Rosharon. Texas 77583

Texas Court of Criminal Appeals _ July 14. 2015
Clerk of the Court Blake A. Hawthorne
P.O. Box 12308

Austin. Texas 78711 ' Re: Writ No. 10-09383-€
CCA No. WR-3083O

Dear Mr. Hawthorne,
Greetings sir, l hope my letter finds you in good health.

Enclosed, please find my Objections to the Trial COurts findings

and request to remand for evidentiaryhhearing.

l respectfully request that you bring this to the attention

of the CCA at your earliest time possible.

l wouldllike to thank you in advance for yuor time and look

forward tohearing from you soon.

Respectfully Mj___/____

WIlliam Durham

cc/file

