Timothy Durley v. Kenya Mason

Summary

The United States District Court for the Eastern District of Wisconsin granted Timothy Durley’s motion to clarify or correct the case and his motion for leave to file a surreply. The court granted the respondent’s motion to dismiss Durley’s 28 U.S.C. § 2254 habeas petition because his claims were procedurally defaulted and he failed to establish actual innocence as an exception. The court dismissed the case and declined to issue a certificate of appealability.

Holdings

1. Durley's ineffective-assistance-of-trial-counsel claims were procedurally defaulted because he did not appeal the denial of his Wis. Stat. § 974.06 motion. His ineffective-assistance-of-appellate-counsel claims were also procedurally defaulted because the Wisconsin Court of Appeals denied them on the independent and adequate procedural ground that he had not shown that the proposed claims were clearly stronger than the issue actually raised on direct appeal.
2. Durley did not establish cause and prejudice sufficient to excuse his procedural default.
3. Durley failed to establish actual innocence and therefore could not invoke the fundamental-miscarriage-of-justice exception to procedural default.
4. The court declined to issue a certificate of appealability because no reasonable jurist could conclude that Durley had not procedurally defaulted his claims or had established actual innocence.

Questions Presented

1. Whether Durley's ineffective-assistance-of-trial-counsel claims were procedurally defaulted because he failed to properly pursue them through Wisconsin's post-conviction procedures.
2. Whether Durley's ineffective-assistance-of-appellate-counsel claims were procedurally defaulted because the Wisconsin Court of Appeals denied his Knight petition under an adequate and independent state procedural rule requiring a showing that the proposed claims were clearly stronger than the claims appellate counsel actually raised.
3. Whether Durley established cause and prejudice sufficient to excuse his procedural default.
4. Whether Durley established actual innocence under the fundamental-miscarriage-of-justice exception.
5. Whether to issue a certificate of appealability.

Disposition

dismissed