United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2254
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Petitioner Daniel Fortune seeks relief pursuant to 28
U.S.C. § 2254. (Petition, ECF No. 1.) The State contends
the petition was not filed timely in accordance with 28
U.S.C. § 2244(d), and thus asks the Court to dismiss the
petition. (Response, ECF No. 7.)
review of the petition, the State's request for
dismissal, and the record, I recommend the Court grant the
State's request, and dismiss the petition.
Factual Background and Procedural History
was initially indicted on several state court criminal
charges in August 2008; a fourteen-count superseding
indictment, filed in February 2009, charged Petitioner with
four counts of aggravated attempted murder, 17-A M.R.S.
§ 152-A(1)(A) (premeditation-in-fact), 17-A M.R.S.
§ 152-A(1)(D) (extreme cruelty) (Class A); two counts of
elevated aggravated assault, 17-A M.R.S § 208-B(1)(A)
(Class A); one count of robbery, 17-A M.R.S. § 651(1)(D)
(Class A); one count of criminal attempt, 17-A M.R.S. §
152(1)(A) (Class A); one count of theft by unauthorized
taking or transfer, 17-A M.R.S. § 353(1)(B)(1) (Class
B); one count of burglary, 17-A M.R.S. § 401(1)(B)(4)
(Class B); one count of criminal conspiracy, 17-A M.R.S.
§ 151(1)(B) (Class B); one count of failure to appear
after bailed, 15 M.R.S. § 1091(1)(B) (Class C); and two
counts of violation of condition of release, 15 M.R.S. §
1092(1)(A) (Class E), 15 M.R.S. § 1092(1)(B) (Class C).
(State v. Fortune, No. AUGSC-CR-2008-00672 (Me
Super. Ct., Kennebec Cty.), State Court Record
(“Record”), ECF No. 7-1 at 3-4, 6.)
March 2010, the state court granted Petitioner's motion
to change venue, and the court changed the venue from
Kennebec County to Somerset County. (Id. at 8.) On
the day the jury was selected, Petitioner pled guilty to
three of the charges: theft by unauthorized taking, failure
to appear after bailed, and the Class E violation of
condition of release. (State v. Fortune, No.
SKOSC-CR-2010-00122 (Me Super. Ct., Somerset Cty.), Record at
16.) Following a seven-day trial, the jury found Petitioner
guilty of the eleven remaining charges. (Record at 18.)
2010, the court sentenced Petitioner to life in prison on the
convictions for aggravated attempted murder, and sentenced
Petitioner to lesser terms on the remaining charges, with all
of the terms to be served concurrently. (Record at 19-23.)
December 13, 2011, the Law Court affirmed the judgment and
the sentence.State v. Fortune, 2011 ME 125,
¶ 2, 34 A.3d 1115. Petitioner did not file a petition
for a writ of certiorari in the United States Supreme Court.
August 16, 2012, Petitioner filed a state court petition for
postconviction review in Somerset County. (Fortune v.
State, No. SKOSC-CR-2012-00271 (Me. Super. Ct., Somerset
Cty.), Record at 33.) Upon the State's motion, the court
transferred the postconviction case to Kennebec County
Superior Court. (Id. at 34.) Following an
evidentiary hearing held in November 2014, the trial court
denied the petition in December 2015. (Fortune v.
State, No. AUGSC-CR-2014-00056 (Me. Super. Ct., Kennebec
Cty.), Record at 37-38.)
Court granted a certificate of probable cause; on April 4,
2017, the Law Court affirmed the postconviction judgment.
Fortune v. State, 2017 ME 61, ¶¶ 1, 8, 17,
158 A.3d 512.
states that he signed the section 2254 petition and placed it
in the prison mailing system on March 29, 2018. (Petition at
15.) Petitioner alleges that there were errors in the jury
selection process; that trial and appellate counsel failed
adequately to confront witnesses; that at sentencing the
court failed to consider mitigating circumstances, and the
Court “expressed an overt hostility” to
Petitioner's decision to exercise his right to a jury
trial; and that the Maine Law Court erred when it permitted
the trial court to consider Petitioner's motion to
reconsider the trial court's denial of the
petition. (Id. at 5-10.)
to 28 U.S.C. § 2254(a), a person in custody pursuant to
the judgment of a state court may apply to a federal district
court for a writ of habeas corpus “only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” Title 28 U.S.C.
§ 2244(d), which governs the time within which a
petitioner must assert a claim under section 2254, provides:
(1) A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court.
The limitation ...