Fortin v. Nooth, 16-35708

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: DONAVAN TROY FORTIN, Petitioner-Appellant, v. MARK NOOTH, Respondent-Appellee.
• Docket Number: No. 16-35708,16-35708
• Decision Date: 27 June 2018

DONAVAN TROY FORTIN, Petitioner-Appellant,
v.
MARK NOOTH, Respondent-Appellee.

No. 16-35708

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: June 8, 2018
June 27, 2018

NOT FOR PUBLICATION

D.C. No. 3:07-cv-00633-PK

MEMORANDUM^*

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

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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...