Donavan Fortin v. Mark Nooth

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONAVAN TROY FORTIN, No. 16-35708
Petitioner-Appellant, D.C. No. 3:07-cv-00633-PK
v.
MEMORANDUM*
MARK NOOTH,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted June 8, 2018
Portland, Oregon
Before: GRABER and M. SMITH, Circuit Judges, and KORMAN,** District
Judge.
In 2002, Donavan Troy Fortin was convicted of sex offenses against two
minor girls. In this habeas petition, Fortin challenges his convictions relating to
the younger victim, SD. The district court denied the petition with prejudice and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Fortin appealed, arguing that his two claims of prosecutorial misconduct are not
barred due to procedural default and that he is entitled to an evidentiary hearing on
those claims, as well as on a freestanding claim of actual innocence. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Fortin’s prosecutorial misconduct claims are procedurally defaulted
because, as he concedes, they were not properly raised in his state post-conviction
proceeding. See Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (en banc).
Fortin argues that we may consider them nonetheless due to an absence of state
corrective process, because Oregon “categorically exempts [such] claims from
post-conviction review.” However, the Oregon court’s statement that Fortin’s
allegations “wouldn’t be a basis for [post-conviction relief] even if proven,” fairly
read in context, does not suggest that prosecutorial misconduct claims are not
cognizable in Oregon post-conviction proceedings. See Or. Rev. Stat.
§ 138.530(1)(a) (authorizing post-conviction relief based on violation in criminal
proceedings “of petitioner’s rights under the Constitution of the United States”);
Berg v. Nooth, 359 P.3d 279, 285 (Or. Ct. App. 2015) (reviewing and denying on
the merits a post-conviction claim of prosecutorial misconduct).
2. Fortin cannot make a sufficient showing of actual innocence to excuse his
procedural default. See Smith, 510 F.3d at 1139 (citing Schlup v. Delo, 513 U.S.
298, 315–16 (1995)). On its own, SD’s recantation of her trial testimony would be
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highly exculpatory, but she thoroughly retracted that recantation in her deposition
under oath. Evidence that SD reached out to Fortin’s family to recant is not
inconsistent with SD’s deposition testimony that she was motivated to recant in
order to end years of occasional harassment by Fortin’s family, and the absence of
police reports does not disprove that alleged harassment. Information on a drug
rehabilitation program SD attended, which Fortin argues substantiates SD’s claim
in her recantation that she was motivated to make amends as part of the program, is
not particularly probative.
Finally, Officer Kenneth Real’s testimony regarding the November 10 date
that appears in his police report is not strongly exculpatory. In order to credit
Officer Real’s post-conviction testimony that SD told him the November 10 date, a
juror would have to discredit or discount sworn testimony from several witnesses.
Even if a juror did credit that testimony, the importance of Fortin’s alibi evidence
regarding that date is lessened by the possibility that SD might have been mistaken
about the exact day on which she was allegedly raped more than a month prior to
her interview with Officer Real. And Fortin’s alibi defense does not clearly bolster
his new consent defense based on SD’s recantation. The new evidence Fortin
points to fails to establish that “it is more likely than not that no reasonable juror
would convict him of the relevant crime[s].” Smith, 510 F.3d at 1140.
Accordingly, we may not consider Fortin’s procedurally defaulted claims of
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prosecutorial misconduct.
3. The district court did not err in denying Fortin an evidentiary hearing on
his freestanding claim of actual innocence. See Insyxiengmay v. Morgan, 403 F.3d
657, 670 (9th Cir. 2005). Assuming arguendo that such a claim is cognizable in
federal habeas, see Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014), it would
require “more convincing proof of innocence” than the showing required under
Schlup to overcome procedural default, House v. Bell, 547 U.S. 518, 555 (2006).
The new evidence Fortin would present at a hearing is not significantly different
from evidence already in the record, which, as discussed above, is not sufficient to
meet even the Schlup standard. See Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir.
2003). Even if Fortin presented that evidence and it were credited in its entirety,
the totality of the evidence would not compel the conclusion that Fortin is actually
innocent of any of the offenses of which he was convicted.
AFFIRMED.
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