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Fortune v. Maine Dept. of Corrections

United States District Court, D. Maine

July 30, 2018

DANIEL FORTUNE, Petitioner,
v.
MAINE DEPT. OF CORRECTIONS, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2254 PETITION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this 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.)

         After a 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.

         I. Factual Background and Procedural History

         Petitioner 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.)

         In 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.)

         In June 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.)

         On December 13, 2011, the Law Court affirmed the judgment and the sentence.[1]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.

         On 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.)

         The Law 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.

         Petitioner 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.[2] (Id. at 5-10.)

         II. Discussion

         Pursuant 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 ...

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