NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONAVAN TROY FORTIN, No. 16-35708

Petitioner-Appellant, D.C. No. 3:07-cv-00633-PK

v.

MEMORANDUM*

MARK NOOTH,

Respondent-Appellee.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 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

2 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 testimony that she was motivated to recant in

order to end years of occasional harassment by Fortin’s family, and the absence of

police reports does not disprove that alleged harassment. Information on a drug

rehabilitation program SD attended, which Fortin argues substantiates SD’s claim

in her recantation that she was motivated to make amends as part of the program, is

not particularly probative.

Finally, Officer Kenneth Real’s testimony regarding the November 10 date

that appears in his police report is not strongly exculpatory. In order to credit

Officer Real’s post-conviction testimony that SD told him the November 10 date, a

juror would have to discredit or discount sworn testimony from several witnesses.

Even if a juror did credit that testimony, the importance of Fortin’s alibi evidence

regarding that date is lessened by the possibility that SD might have been mistaken

about the exact day on which she was allegedly raped more than a month prior to

her interview with Officer Real. And Fortin’s alibi defense does not clearly bolster

his new consent defense based on SD’s recantation. The new evidence Fortin

points to fails to establish that “it is more likely than not that no reasonable juror

would convict him of the relevant crime[s].” Smith, 510 F.3d at 1140.

Accordingly, we may not consider Fortin’s procedurally defaulted claims of

3 prosecutorial misconduct.

3. The district court did not err in denying Fortin an evidentiary hearing on

his freestanding claim of actual innocence. See Insyxiengmay v. Morgan, 403 F.3d

657, 670 (9th Cir. 2005). Assuming arguendo that such a claim is cognizable in

federal habeas, see Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014), it would

require “more convincing proof of innocence” than the showing required under

Schlup to overcome procedural default, House v. Bell, 547 U.S. 518, 555 (2006).

The new evidence Fortin would present at a hearing is not significantly different

from evidence already in the record, which, as discussed above, is not sufficient to

meet even the Schlup standard. See Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir.

2003). Even if Fortin presented that evidence and it were credited in its entirety,

the totality of the evidence would not compel the conclusion that Fortin is actually

innocent of any of the offenses of which he was convicted.

AFFIRMED.

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