Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fortune v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

July 1, 2019

KEVIN L. FORTUNE, Petitioner,



         Kevin 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.


         Mr. 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).

         Standard of Review


         The 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; or
(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.

         A 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.

         AEDPA 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 fairminded disagreement.").

         The 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).

         Ineffective Assistance of Counsel

         All of 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 judgment." Id.

         A 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.

         Obtaining 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 doubt.").


         Exhaustion of Mr. Fortune's Claims

         A 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, 275-76 (1971).

         Respondent 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).

         This 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).

         However, 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.

         Grounds One And Four

         In 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.

         At the 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.

         The 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).

         A. Exhausted Claims

         In 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.[1] 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 postconviction motion:

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 postconviction relief.
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).

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.