State Habeas R refers to the state court record of Cudes relevant stat - PDF document

1 “State Habeas R.” refers to the state co
“State Habeas R.” refers to the state court record of Cude’s relevant state habeas application,Application No. WR-16,480-02.Section 501.0081 of the Texas Government Code provides:(a) The department shall develop a system that allows resolution of aRespondent Nathaniel Quarterman is the Director of the Texas Department of CriminalC.PROCEDURAL HISTORYOn March 18, 1986, Cude was convicted of voluntary manslaughter and received a twenty-year sentence in cause no. 23,226-A in the 30 District Court of Wichita County, Texas. (StateHabeas R. at 17.) Cude was subsequently released on parole but was returned to custody on July2, 2003, with jail credit allowed from April 6, 2002. ( at 13.) TDCJ has denied Cude street timecredit for the time he spent on release. (Resp’t Answer, Exhibit A.) Cude remains incarcerated witha scheduled September 14, 2007 mandatory supervision release date, a June 21, 2005 maximumOn November 28, 2005, Cude filed a ti

2 me credit dispute resolution form with T
me credit dispute resolution form with TDCJconcerning his time calculation, but TDCJ notified Cude that there was no current error in his timecalculation. (Resp’t Answer, Exhibit A.) On February 21, 2006, Cude filed a state habeasapplication for writ of habeas corpus challenging TDCJ’s time calculation, in which he asserted, ashe does now, that he is being held illegally because he has fully discharged his twenty-year sentence.The application was dismissed by the Texas Court of Criminal Appeals based on § 501.0081 of theTexas Government Code on May 3, 2006. (State Habeas R. at cover.) T (B) the date on which the impediment to filing an applicationcreated by State action in violation of the Constitution or laws of theUnited States is removed, if the applicant was prevented from filing(C) the date on which the constitutional right asserted wasinitially recognized by the Supreme Court, if the right has been newlyrecognized by the Suprem

3 e Court and made retroactively applicabl
e Court and made retroactively applicable(D) the date on which the factual predicate of the claim orclaims presented could have been discovered through the exercise of(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claimis pending shall not be counted toward any period of limitation under this subsection.In the context of parole-revocation proceedings and the resultant loss or denial of varioustime credits support exists that subsection (D) governs when the limitations period begins to run,, the date on which a petitioner could have discovered, through the exercise of due diligence, thefactual predicate of his claims. See, e.g., Heiser v. Johnson Cir. 2001) (Table, No.Biggins v. Dretke, No. 3:03-CV2005-P, 2004 WL 2004) (not designated for publication); , No. 4:03-0520-A, 2003 WL 22724659,at *3 (N.D. Tex. Sept. 15, 2003) (not designated

4 for publication). Cude could have disc
for publication). Cude could have discovered thatTDCJ had denied him credit for the time he spent on parole in calculating his sentence, through theexercise of due diligence, at the very latest on July 2, 2003, when he was returned to TDCJ custodyafter his parole was revoked. See Moore v. Dretke, No. 3:03-CV-2121-R, 2003 WL 22964139 (N.D.ral statute of limitations beganon Cude’s time-credit claims on July 2, 2003, and closed one year later on July 2, 2004, subject to specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,and recommendation until November 21, 2006. The United States District Judge need only makede novo determination of those portions of the United States Magistrate Judge’s proposed findings,conclusions, and recommendation to which specific objection is timely made. 28 U.S.C. §636(B)(1). Failure to file by the date stated above a specific written objection to a proposed fact

5 ualfinding or legal conclusion will bar
ualfinding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,from attacking on appeal any such proposed factual finding or legal conclusion accepted by theUnited States District Judge. See Douglass v. United Servs. Auto. Ass’nUnder 28 U.S.C. § 636, it is ORDERED that each party is granted until November 21, 2006,to serve and file written objections to the United States Magistrate Judge’s proposed findings,conclusions, and recommendation. It is further ORDERED that if objections are filed and theopposing party chooses to file a response, a response shall be filed within seven (7) days of the filingIt is further ORDERED that the above-styled and numbered action, previously referred tothe United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby CHARLES BLEILUNITED STATES MAGISTRATE JUDGE Effective June 1, 2006, Douglas Dretke was replaced by Nathaniel Quarterma

6 n as Directorof the Texas Department of
n as Directorof the Texas Department of Justice, Correctional Institutions Division. Accordingly, NathanielQuarterman should be automatically substituted as Respondent. 25(d)(1). TheJAMES DALTON CUDE,§Petitioner,§v.§ Civil Action No. 4:06-CV-376-ATexas Department of Criminal Justice,§Correctional Institutions Division,§ Respondent.§ OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER This cause of action was referred to the United States Magistrate Judge pursuant to theprovisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court forthe Northern District of Texas. The Findings, Conclusions and Recommendations of the UnitedA.NATURE OF THE CASEThis is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.B.PARTIESPetitioner James Dalton Cude, TDCJ-CID #418593, is a state prisoner in custody of theTexas Department of Criminal Justice, Corre