United States District Court, M.D. Florida, Tampa Division
KEVIN L. FORTUNE, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
L. Fortune, a Florida prisoner, timely filed a pro
se amended petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging his Manatee County conviction.
(Dkt. 9). Upon consideration of the amended petition, the
Court ordered Respondent Secretary, Department of
Corrections, to show cause why the relief sought in the
amended petition should not be granted. (Dkt. 11). Respondent
filed a response in opposition to the amended petition, along
with the state court record. (Dkts. 17, 19). Mr. Fortune
filed a reply. (Dkt. 22). Upon consideration, the amended
petition will be denied.
Fortune was convicted after a jury trial of one count of lewd
or lascivious batter)'. (Dkt. 19, Ex. 1, p. 43). He
received a sentence of 20 years in prison as a habitual
felony offender, followed by five years of sex offender
probation. (Dkt. 19, Ex. 1 a, pp. 250-51). The state
appellate court per curiam affirmed Mr.
Fortune's conviction and sentence. (Dkt. 19, Ex. 4). Mr.
Fortune filed a motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850 and an amended
motion. (Dkt. 19, Ex. 6). The state appellate court per
curiam affirmed the postconviction court's summary
denial of relief. (Dkt. 19, Exs. 6, 9).
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") governs this proceeding. Carroll v.
Sec'y, DOC, 574F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief can only be granted if a petitioner is in
custody "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. §
2254(a). Section 2254(d) provides that federal habeas relief
cannot be granted on a claim adjudicated on the merits in
state court unless the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision is "contrary to" clearly established
federal law "if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor,
529 U.S. 362, 413 (2000). A decision is an "unreasonable
application" of clearly established federal law "if
the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case." Id.
was meant "to prevent federal habeas 'retrials'
and to ensure that state-court convictions are given effect
to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he
focus ... is on whether the state court's application of
clearly established federal law is objectively unreasonable,
and... an unreasonable application is different from an
incorrect one." Id. at 694. See also
Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As
a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court's ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
state appellate court affirmed the denial of Mr.
Fortune's postconviction motion without discussion. This
decision warrants deference under § 2254(d)(1) because
"the summary nature of a state court's decision does
not lessen the deference that it is due." Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a
state appellate court issues a silent affirmance, "the
federal court should 'look through' the unexplained
decision to the last related state-court decision that does
provide a relevant rationale" and "presume that the
unexplained decision adopted the same reasoning."
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Assistance of Counsel
Mr. Fortune's claims allege ineffective assistance of
trial counsel. Such claims are analyzed under the test
announced in Strickland v. Washington, 466 U.S. 668
(1984). Strickland requires a showing of deficient
performance by counsel and resulting prejudice. Id.
at 687. Deficient performance is established if, "in
light of all the circumstances, the identified acts or
omissions [of counsel] were outside the wide range of
professionally competent assistance." Id. at
690. However, "counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
petitioner must demonstrate that counsel's alleged error
prejudiced the defense because "[a]n error by counsel,
even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had
no effect on the judgment." Id. at 691. To
demonstrate prejudice, a petitioner must show "a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id. at 694.
relief on a claim of ineffective assistance of counsel is
difficult on federal habeas review because "[t]he
standards created by Strickland and § 2254(d)
are both 'highly deferential,' and when the two apply
in tandem, review is 'doubly' so."
Richter, 562 U.S. at 105 (citations omitted).
See also Burt v. Titlow, 571 U.S. 12, 15 (2013)
(this doubly deferential standard of review "gives both
the state court and the defense attorney the benefit of the
of Mr. Fortune's Claims
federal habeas petitioner must exhaust his claims by raising
them in state court before presenting them in his petition.
28 U.S.C. § 2254(b)(1)(A); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state
prisoner must give the state courts an opportunity to act on
his claims before he presents those claims to a federal court
in a habeas petition."). The exhaustion requirement is
satisfied if the petitioner fairly presents his claim in each
appropriate state court and alerts that court to the federal
nature of the claim. Picard v. Connor, 404 U.S. 270,
suggests that Mr. Fortune's claims are unexhausted. When
Mr. Fortune appealed the summary denial of his postconviction
motion, he did not file an appellate brief. He was not
required to do so under the applicable procedural rule.
See Fla. R. App. P. 9.141 (b)(2)(C)(i) ("Briefs
are not required" if all postconviction claims have been
summarily denied, "but the appellant may serve an
initial brief[.]"). After the state appellate court
affirmed the denial of relief, Mr. Fortune filed a motion for
rehearing in which he addressed his claims for relief. (Dkt.
19, Ex. 10). Asserting that Mr. Fortune "was barred
under state procedural rules from raising his claims for the
first time on rehearing," Respondent now "questions
whether the claims were properly exhausted on appeal from the
summary denial." (Dkt. 17, p. 19).
Court finds that Mr. Fortune's failure to file an initial
brief did not prevent him from exhausting the claims that he
raised in his postconviction motion. He was not obligated to
file a brief to properly present the claims to the state
appellate court for review. That Mr. Fortune addressed the
claims in a motion for rehearing filed after the state
appellate court issued its decision does not change the
conclusion that his claims were properly before that court
for review in the first instance. Accordingly, Mr. Fortune
exhausted the claims that he raised in his postconviction
motion. See Gardner v. Sec'y, Fla Dep't of
Corr., 2018 WL 1898756 at *5 n.3 (M.D. Fla. Apr. 20,
2018) (a petitioner who did not file an appellate brief
following the summary denial of his postconviction motion
"successfully exhausted his state court remedies"
by appealing the denial).
Mr. Fortune's amended federal habeas petition raises
several ineffective assistance claims that he did not present
in his state postconviction motion. These claims are
unexhausted. As Mr. Fortune cannot return to state court to
raise the claims in an untimely, successive postconviction
motion, see Fla. R. Crim. P. 3.850(b), they are now
procedurally defaulted. See Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001) ("If the petitioner has
failed to exhaust state remedies that are no longer
available, that failure is a procedural default[.]").
These procedurally defaulted claims are barred from review
unless Mr. Fortune establishes the applicability of an
exception to overcome the default. See Id. (a
procedural default "will bar federal habeas relief,
unless either the cause and prejudice or the fundamental
miscarriage of justice exception is established."). Each
of Mr. Fortune's claims is addressed below.
One And Four
Grounds One and Four, Mr. Fortune alleges that counsel was
ineffective in his presentation of the defense at trial. The
record shows that the victim, a girl who was 13 years old at
the time of the offense, initially told police that another
man, Michael Suza, was the perpetrator. During a medical
examination, semen was found in the victim's vagina. DNA
from the semen matched Mr. Fortune, not Mr. Suza.
start of trial, the prosecutor stated that he did not plan to
call the victim. It appears that counsel considered calling
the victim to bring out her initial identification of Mr.
Suza and her alleged inconsistent statements during the
investigation into Mr. Suza. (Dkt. 19, Ex. 1 d, pp. 302-05).
However, after the trial court ruled that these statements
were inadmissible (Dkt. 19, Ex. 1 c, pp. 154-60, 163-68),
counsel decided not to call the victim.
State's case focused on the DNA evidence. The State
called Shana Hayter, a crime lab analyst at the Florida
Department of Law Enforcement who performed the DNA testing.
She testified that the DNA profile recovered from the victim,
which matched Mr. Fortune, occurred with a frequency of 1 in
130 trillion African-Americans. (Id., pp. 254-55).
Ground One, Mr. Fortune alleges that trial counsel was
ineffective for failing to depose or investigate the victim,
and in not calling her at trial. In Grounds One and Four, Mr.
Fortune alleges that counsel was ineffective in not
presenting a "credibility" defense. Mr. Fortune
alleges that the victim's testimony would have exonerated
him. Mr. Fortune claims that the victim would have testified
that he was not guilty, and suggests that she would have
testified to planting the DNA evidence on herself.
Alternatively, Mr. Fortune claims, counsel should have
presented a "credibility" defense by impeaching the
victim's credibility through her alleged prior
inconsistent statements and calling witnesses to testify to
his good character and credibility. The state court denied
these claims when Mr. Fortune raised them in his
In Ground One, Defendant alleges that counsel was ineffective
for failing to investigate or depose any witnesses prior to
the day of trial....
According to Defendant, had counsel provided a more thorough
investigation, "he would have been better prepared to
proceed to trial and been able to make an informed decision
on whether to call the victim as a defense witness, instead
of being undecided right up to the time it became necessary
for that decision to be made." Defendant concludes that
counsel's "lack of preparation... prejudiced the
defendant and contributed to defendant being convicted."
Defendant implies that the witnesses he instructed counsel to
call were the basis for a "credibility defense,"
wherein evidence of Defendant's recent good moral
behavior would be presented to the jury alongside the
victim's inconsistent statements.
Defendant asserts that he instructed counsel to depose and
call at trial T.W. (the victim), Phyllis and Marion Hill
(Defendant's landlords), Donna Porter (Defendant's
girlfriend), Sam Stewart (Defendant's addiction
counselor), and Floyd Winters (Defendant's college
professor). The majority of these claims are legally
insufficient and, as Defendant was previously afforded an
opportunity to amend, now subject to denial with prejudice
under Rule 3.850(f)(2) for his failure to provide legally
sufficient amendments. The Court will nevertheless address
the claims on an individual basis to explain why
Defendant's claims fail to demonstrate an entitlement to
Defendant implies that T.W.'s testimony would likely
include an admission to lying in her original affidavit,
which would have allowed counsel to point out inconsistencies
in her version of events. He contends that this evidence of
deception by the victim "would have opened the jurors to
the possibility that the victim may have indeed planted the
defendant's DNA herself to claim rape to divert attention
from herself and her misdeeds, and curry sympathy."
As an initial matter, the Court finds Defendant's
suggestion that a jury would have believed that the victim
planted false evidence of a sex crime - specifically,
Defendant's bodily fluids inside her own vagina-based on
the victim's inconsistent or incomplete statements to
police inherently incredible. See Montero v. State,
996 So.2d 888 (Fla. 4th DCA 2008); Evans v. State,
843 So.2d 938 (Fla. 3d DCA 2003). Additionally, the Court
finds the claim regarding counsel's alleged failure to
elicit exculpatory testimony from the victim too speculative
and conclusory to warrant a hearing. Defendant fails to
identify any admissible evidence indicating that the victim
had access to a collection of his DNA for purposes of
fabricating allegations against him. Moreover, Defendant
fails to allege or demonstrate that the victim or any other
witness would have offered testimony in support of his claim.
In light of the DNA evidence presented at trial, testimony
calling T. W. 's character or credibility into question
would not have created a different outcome at trial.
Ultimately, Defendant fails to show that the absence of
T.W.'s testimony resulted in prejudice that affected the
result of the proceedings.
(Dkt. 19, Ex. 6, pp. 24-26).
state court then addressed the five other witnesses whom Mr.
Fortune argued would have contributed to a credibility
defense by offering testimony about Mr. Fortune's
character. The state court concluded that any such testimony
was not permissible under Florida law. Citing Pino v.
Koelber,389 So.2d 1191, 1193 (Fla. 2d DCA 1980), the
state court found that evidence of ...