Fortson v. Eppinger
Order Adopting Report and Recommendation (re 43 ) and dismisses Fortson's Petition under 28 U.S.C. § 2254. The court grants in part and denies in part Fortson's 36 Motion to Expand the Record and denies his 38 Mo tion for Evidentiary Hearing. The court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 2/13/2017. (D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Case No.: 1:15 CV 2078
JUDGE SOLOMON OLIVER, JR.
This case is before the court on the Report and Recommendation (“R & R”) of Magistrate
Judge Jonathan D. Greenberg (“Magistrate Judge” or “Judge Greenberg”). (R & R, ECF No. 43.)
Judge Greenberg recommended that the court dismiss as time-barred Petitioner Andrew Fortson’s
(“Petitioner” or “Fortson”) Petition under 28 U.S.C. § 2254 (“§ 2254 Petition”) (ECF No. 1). He also
recommended that Fortson’s Motion to Expand Record (ECF No. 36) be granted in part and denied
in part, while his Motion for Evidentiary Hearing (ECF No. 38) be denied. Fortson timely filed
Objections (Objs., ECF No. 46) to Judge Greenberg’s R & R. For the following reasons, the court
overrules Fortson’s Objections to the R & R, adopts Judge Greenberg’s R & R, and dismisses
Fortson’s § 2254 Petition.
Judge Greenberg’s R & R exhaustively detailed the complex factual and procedural
background of this case, to which Fortson has raised no objection. The court, therefore, adopts the
factual and procedural background articulated in the R & R and provides only a summary of the
A. Factual Summary
The Ohio Court of Appeals for the Eighth Appellate District summarized the facts underlying
Fortson’s conviction as follows:
The victim, Elaine Lovett (aka Little Bit), a prostitute working for defendant, was
killed more than twenty years ago on June 1, 1978. Two of defendant’s relatives,
Robbie Robertson (his half brother) and Charles Tolliver (his first cousin) were also
allegedly involved. Police in Euclid (where the killing occurred), New York (where
the victim and her family were from), and Florida (where another prostitute moved
to escape defendant) put together parts of the case over a period of more than twenty
There was little physical evidence at the scene to indicate who committed the
homicide. Fingerprints were found on two glasses in the victim’s kitchen but were
not identified until 1999. The investigation went through several stages: in 1978
when the homicide occurred, in 1986 when an alibi witness recanted her testimony,
in 1991 when defendant’s daughter told the police defendant admitted to the killing,
and finally in 1999 when the police linked the fingerprints to defendant’s codefendant Robertson and Charles Tolliver.
On June 1, 1978, defendant and prostitute Jackie Lynn (aka Jackie Colter) reported
finding the victim’s body in her Euclid residence and were questioned by police.
Lynn/Colter apparently did not know what happened. She was hysterical and police
took no statement from her.
Two weeks later, on June 16, 1978, defendant and prostitute Jacque Conners (aka
Tina Heimer) were questioned. Conners/Heimer provided defendant with an alibi for
the time of the killing. Approximately eight years later, on May 3, 1986, after she
had fled to Florida to escape defendant, however, she talked to Euclid police and
recanted the alibi. The witness stated she told defendant on May 28, 1978 that the
victim was going back to New York, would prostitute for someone else, and had
given her new pimp some diamonds that defendant had given her. Defendant told the
witness “I’m going to kill the bitch.” On the evening of the murder, Conners/Heimer
fell asleep with defendant, and awoke between 3:00 and 4:00 a.m. when he was gone.
When defendant returned after 4:00 a.m., he was nervous, pacing and looking for a
“witness.” She agreed to provide him an alibi. When defendant tried to kill her with
heroin in September of 1978, she fled to Florida.
Brenda Caver, another prostitute (and defendant’s common law wife) had a daughter
with defendant by the name of Andee Caver. Both Brenda and Andee testified that
defendant was a pimp, that they were afraid to testify, and that he urged them to go
to California rather than testify. The court called defendant’s daughter as its own
witness and each party cross-examined her. Her testimony at trial was guarded and
vague. She admitted that she told Euclid police in 1991 that defendant confessed to
killing the victim known as Little Bit.
The victim’s mother and sister testified that the victim was in New York shortly
before she was killed. The victim told her mother, Damilian Hildago, that she was
afraid of “Andy” (defendant Andrew Fortson/Tolliver). The victim told her sister,
Helen Lovett, that she was going back to Cleveland to get her possessions despite the
fact that “Andy told me if I go back, he will kill me.”
The victim was strangled by her telephone cord and stabbed sixteen times in the
apartment defendant rented for her shortly after she returned to Cleveland. Her
furniture was also repeatedly slashed. There were no signs of forced entry.
After identifying his fingerprints on one of the glasses from the victim’s apartment,
Euclid and New York City police detectives interviewed co-defendant Robbie
Robertson in 1999. NYPD Detective Neglia and Euclid Detective Jorz testified that
Robertson told each of them the same story. When asked whether defendant was the
killer, Robertson answered “you’re barking up the wrong tree. You have to question
the guy who drove me there.” Jorz testified that the fingerprints on the drinking
glasses found in the victim’s apartment belonged to Robertson and Tolliver,
The matter proceeded to a joint trial against defendant and co-defendant Robertson
on charges of aggravated murder and conspiracy to commit aggravated murder.
[footnote omitted]. The jury found defendant guilty of aggravated murder and
acquitted Robertson. Defendant appeals, raising eleven assignments of error.
State v. Fortson, 2001 WL 898428 at * 1-2 (Ohio App. 8th Dist. Aug. 2, 2001).
B. Procedural History
On December 16, 1999, a Cuyahoga County, Ohio Grand Jury indicted Fortson, along with
co-defendant Robbie Robertson (“Robertson”), on charges arising from the 1978 murder of Elaine
Lovett. Specifically, Fortson was charged with one count of aggravated murder, in violation of Ohio
Revised Code § 2903.01 (Count One) and one count of conspiracy to commit aggravated murder,
in violation of Ohio Revised Code §§ 2923.01, 2903.01 (Count Two). This indictment was assigned
case number CR 385443. Robertson was also charged with one count of conspiracy to commit
aggravated murder in case number CR 385443, and one count of aggravated murder, in case number
CR 371155. Fortson entered a plea of not guilty to the indictment. On April 11, 2000, the State reindicted Fortson and Robertson on the charges of conspiracy to commit aggravated murder, this time
specifying the overt acts allegedly committed in furtherance of the conspiracy. This indictment was
assigned case number CR 389991. Fortson entered a plea of not guilty to this indictment. The court
also granted the State’s request to nolle prosequi the conspiracy charges in case number CR 385443.
On May 12, 2000, a jury in the Cuyahoga Court of Common Pleas found Fortson guilty of
aggravated murder, as charged in case number CR 385443. However, Fortson was acquitted of
conspiracy to commit aggravated murder, as charged in case number CR 389991. Robertson was
acquitted of all charges. On June 6, 2000, Fortson was sentenced to a term of life in prison with
parole eligibility after twenty years. Petitioner timely filed a direct appeal, on July 5, 2000, with the
Court of Appeals for the Eighth Appellate District. Petitioner’s conviction and sentence were
affirmed on August 2, 2001. Fortson next pursued his appeal with the Supreme Court of Ohio, which
on December 5, 2001, declined jurisdiction and dismissed the case. Petitioner did not seek a writ of
certiorari from the United States Supreme Court.
While his appeal was pending before the Supreme Court of Ohio, Fortson filed, on
November 27, 2001, an Application to Reopen Appeal pursuant to Rule 26(B) of the Ohio Rules of
Appellate Procedure. The Court of Appeals for the Eighth Appellate District denied the application,
on December 11, 2001, as untimely and meritless. Petitioner did not appeal this ruling to the
Supreme Court of Ohio. Instead, he filed a “Motion for Delayed Reconsideration to Reopen,” which
the Court of Appeals denied on February 6, 2002. Fortson did not seek further review in the
Supreme Court of Ohio.
Fortson then filed, on August 9, 2002, a Petition for Writ of Habeas Corpus in this court.
After the petition was fully briefed, Fortson filed a “Motion to Withdraw Writ of Habeas Corpus,
Without Prejudice, in Order to Exhaust State Claims.” The court granted the motion on April 21,
2003, and dismissed the petition. However, before the federal habeas petition had been dismissed,
Fortson filed, on November 4, 2002, his first delayed motion for a new trial in the Cuyahoga Court
of Common Pleas. The court denied the motion, on February 6, 2003, as untimely and meritless.
Fortson appealed, but the state appellate court affirmed the lower court decision on October 9, 2003.
Thereafter, Fortson made numerous attempts, over the course of approximately eleven years,
to collaterally attack his conviction and sentence. Specifically, Fortson filed: (1) five state habeas
petitions between October 2003 and September 2005; (2) two post-conviction petitions on December
2, 2003 and December, 31, 2007; and (3) a second delayed motion for a new trial. All of these
motions were ultimately dismissed by the state appellate courts, concluding with Fortson’s delayed
motion for a new trial, on December 24, 2014.
On September 29, 2015, Fortson filed the instant § 2254 Petition, setting forth seven grounds
for relief. Fortson was later granted leave to amend his Petition to add an eighth claim. Despite the
fact that his § 2254 Petition had been filed some fifteen years after his conviction became final,
Fortson asserted that his claims are not barred by the statute of limitations of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1). First, he argued that the
fifth and sixth grounds are timely under § 2244(d)(1)(D), AEDPA’s factual-predicate provision.
Second, he contended that he made a credible showing of actual innocence by virtue of allegedly
“new” evidence in the form of statements from several witnesses.
Respondent LaShaunn Eppinger (“Respondent”) moved to dismiss the § 2254 Petition as
time-barred. However the motion to dismiss was denied, and Respondent was directed to file a
return of writ fully briefing the merits, as well as statue of limitations arguments. Respondent filed
a Return of Writ on May 23, 2016. Petitioner thereafter filed a motion to expand the record by an
additional eleven exhibits, primarily made up of Euclid, Ohio Police Department reports regarding
the original murder investigation and witness interviews. On August 25, 2016, Fortson filed his
Traverse, raising both § 2244(d)(1)(B) and the doctrine of equitable tolling as additional grounds
to excuse his late-filed petition. According to Petitioner, he was prevented from filing his petition
earlier because the State allegedly withheld, until “late 2012,” statements and notes from the initial
1978 police investigation that provided the factual predicate for some of his claims. Petitioner also
moved for an evidentiary hearing, at which he planned to call five witnesses who he argued would
impeach the State’s evidence regarding the motive and timeline for the murder. Respondent opposed
the request for an evidentiary hearing.
On November 21, 2016, Judge Greenberg issued his R & R, granting in part and denying in
part Petitioner’s Motion to Expand Record, denying the Motion for Evidentiary Hearing, and
dismissing the § 2254 Petition as time-barred. The Magistrate Judge first recommended expanding
the record by including Exhibits 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11, finding that these exhibits may be
relevant to Fortson’s actual innocence argument and had not yet been included in the record. Next,
the Magistrate Judge concluded that, even giving Fortson every benefit of the doubt, the § 2254
Petition is time-barred. Judge Greenberg recommended finding that Petitioner had filed the petition
well-beyond the one–year statute of limitations imposed by any of the three claimed subsections of
28 U.S.C. § 2244(d), and that Petitioner had failed to demonstrate either equitable tolling or actual
innocence to permit the court to review the merits of the untimely petition. The Magistrate Judge
concluded by denying Fortson’s request for an evidentiary hearing.
Petitioner timely filed his Objections to the R & R on January 23, 2017, challenging Judge
Greenberg’s findings regarding actual innocence and the request for an evidentiary hearing.
II. LAW AND ANALYSIS
The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of a report and recommendation to which specific objections have been made. 28
U.S.C. § 636(b)(1). After review, a district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3). Accordingly, this court will review the portions of the R & R to which
Petitioner has raised his Objections.
A. Actual Innocence
The United States Supreme Court has held that “actual innocence, if proved, serves as a
gateway through which a petitioner may pass” a statute of limitations bar to review. McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). The Court has cautioned, however, that the actual innocence
exception should “remain rare” and “only be applied in the ‘extraordinary case.’” Schlup v. Delo,
513 U.S. 298, 321 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)); see also Souler
v. Jones, 395 F.3d 577, 600 (6th Cir. 2005). To establish actual innocence, a petitioner must show
that it is more likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt in light of new evidence. Schlup, 513 U.S. at 327.
To that end, a petitioner must present “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Id. at 324; see also Connolly v. Howes, 304 F. App’x 412, 417 (6th Cir. 2008).
In determining whether the petitioner’s burden has been met, the court must consider “all the
evidence, old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that would govern at trial.” House v. Bell, 547
U.S. 518, 538 (2006) (internal quotation marks omitted). The court “may consider how the timing
of the submission and the likely credibility of the affiants bear on the probable reliability of that
evidence.” Schlup, 513 U.S. at 332; see also Eberle v. Warden, Mansfield Corr. Inst., 532 F. App’x
605, 612–13 (6th Cir. 2013). It is not the court’s task to “work through an ‘independent factual
determination’ to divine ‘what likely occurred’”; rather the court must “assess the likely impact of
the evidence on reasonable jurors[.]” Eberle, 532 F. App’x at 612–13 (quoting House, 547 U.S. at
In his R & R, Judge Greenberg applied the Schlup standard to determine that Fortson failed
to present any “new” evidence that could establish a credible claim of actual innocence. (See R &
R 50–72.) Petitioner objects to this portion of Judge Greenberg’s R & R, arguing that the Magistrate
Judge failed to properly consider the “net effect” that his purportedly new evidence would have on
a reasonable juror. (Objs. 19.) Fortson also largely reiterates the contentions advanced in many of
his state court filings to contend that he has demonstrated actual innocence. (See Objs. 18–21,
24–52.) He insists that the police investigatory notes and witness statements from 1978, which were
allegedly withheld by the State and not obtained by Fortson until late 2012, contradict the testimony
of the State’s primary witnesses—Jacque Conners (“Conners”) and Jackie Lynn (“Lynn”), two
prostitutes who worked for Fortson—regarding the alleged timeline and motive for Ms. Lovett’s
murder, and demonstrate that another individual, Archie Jones, committed the crime. Finally,
Fortson asserts that the recantation affidavits of Andee Caver and Brenda Caver, who testified at his
trial, demonstrate his innocence.
After conducting a de novo review, the court remains unpersuaded by Fortson’s contentions,
because he has not presented the type of reliable exculpatory evidence contemplated in Schlup. He
has not presented “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence” that supports his claim of actual innocence. House, 547 U.S. at 537. Rather,
Fortson’s proffered evidence mostly consists of reports and affidavits that purport to show
inconsistencies in witnesses’ testimony. At trial, Conners testified that Fortson was also the victim’s
pimp, and that he had a history of violently assaulting his prostitutes. (Trial Tr. vol. 2,
647:24–648:19, 659:1–662:10, ECF No. 42-2.) She also averred that Fortson became very angry
when he learned Ms. Lovett was going to leave him for a pimp in New York and threatened to kill
the victim two days before her body was found. (Id. at 663:14–664:8, 665:23:–667:15.) Lynn
testified that she had seen Fortson beat Ms. Lovett up on at least one occasion, leaving her “a bloody
mess.”(Id. at 364:22–365:20, 382:6–25.)
Fortson asserts that the newly proffered evidence directly contradicts this testimony. In one
police report, dated June 2, 1978, Lynn described Fortson as the victim’s “ex-boyfriend.” (ECF No.
9-5, at 174.) She also explained that, approximately three weeks prior to the murder, Archie Jones
had beaten Ms. Lovett. (Id. at 175–76.) Archie Jones, in an interview summarized in a 1983 police
report, admitted to knowing “the victim very well” and to “slap[ping] her a few times” a few days
before the murder. (Id. at 186.) Fortson also points to affidavits from Glenda Anderson and
Havannia Wade who aver, in relevant part, that Ms. Lovett was not afraid of Fortson or planning to
leave him. (ECF No. 9-2, at 137–138.)
However, this evidence is largely cumulative of the version of events presented by Fortson
at trial, which the jury plainly rejected. The jurors heard testimony from Ms. Conners that Archie
Jones had been Ms. Lovett’s pimp for a short time and that he was known for being particularly
rough. (Trial Tr. vol. 2, 728:22–25; 738:24–739:2.) Conners’s taped statement to police, in which
she described Archie Jones’s reputation for violence, was provided to defense counsel during the
trial. (Id. at 701:2–711:20.)
Further, the statements of Glenda Anderson and Havannia Wade are of questionable
reliability because they were submitted over a year after Fortson’s trial. See, e.g., Freeman v.
Trombley, 483 F. App’x 51, 60 (6th Cir. 2012) (finding that alibi affidavit submitted years after the
petitioner’s trial was insufficient to establish a credible actual-innocence claim). The affidavits are
also questionable because Anderson and Wade worked as prostitutes for Fortson. See Milton v.
Sec’y, Dep’t of Corr., 347 F. App’x 528, 531–32 (11th Cir. 2009) (finding that affidavits from fellow
inmates and family members created after trial are not sufficiently reliable evidence to support a
claim of actual innocence). More importantly, their statements are contradicted by several witnesses,
including Ms. Lovett’s mother and sister, who testified at trial that the victim was, in fact, terrified
of Fortson because he beat and threatened to kill her. (See, e.g., Trial Tr. vol. 2, 558:5–562:2,
575:19–577:15, 579:4–7, 583:24–585:17.) Thus, it is unlikely that reasonable jurors would find
Fortson’s proffered evidence, regarding the motive for the murder, particularly credible or
The strongest evidence that Petitioner has proffered in support of his actual innocence claim
is the allegedly withheld statements of Lynn (ECF No. 9-5, at 173), Ronald Harris (id. at 188 ), and
Havannia Wade (ECF No. 36-1, at 12), which he argues refute the State’s timeline for the murder.
Because the statements establish that the victim was alive until approximately four o’clock in the
morning, Fortson asserts that he could not have committed the murder. (ECF No. 9-5, at 162–63.)
At trial, the State had relied on Conners’s testimony to establish that Fortson lacked an alibi
for the night of the murder. Conners had originally provided Fortson with an alibi, but fled to Florida
after he tried to kill her. (Trial Tr. vol. 2, 675:16–687:5, 691:19–692:2.) She recanted her original
statement in 1986 and testified against Fortson. (Id.) Specifically, Conners testified that she woke
up around three or four o’clock on the morning of June 1, 1978, and Fortson was not there. (Id. at
669:3–15.) She began to fall asleep again, only to be awakened when Fortson returned at some point
between three and four o’clock. (Id. at 669:17–25.) She later clarified that it was closer to four
o’clock. (Id. at 671:6–12.) She described Fortson as appearing nervous, paranoid, and very upset;
he was pacing around and shaking. (Id. at 670:4–7, 670:25–671:5.) He also repeatedly stated, “I got
to find a witness.” (Id.) Conners noticed that Fortson was not wearing the same clothing he had on
before going to bed. (Id. at 670:11–22.) According to Conners, Fortson eventually left the hotel
room again “to go find a witness.” (Id. at 672:14–17.) He returned about one and a half to two hours
later, and was totally calm. (Id.)
The court finds the statements proffered by Fortson to be unconvincing. Of these statements,
only Lynn’s comes close to supporting the argument advanced by Fortson, and its import is
ambiguous at best. According to the police report summarizing her statement, when asked why she
had gone to the victim’s apartment on Friday, June 2, 1978, Lynn stated, “I was worried. Last I saw
her was Thursday 4 a.m.” (ECF No. 9-5, at 173.) Lynn also testified at trial; she stated that she
became concerned on June 2, 1978, because she had not seen or heard from Ms. Lovett “in a couple
of days.” (Trial Tr. vol. 2, 367:25.) Thus, Lynn’s statement does not necessarily contradict
Conners’s testimony or demonstrate that Fortson could not have committed the murder around four
o’clock on June 1, 1978. Moreover, Fortson’s defense counsel vigorously cross-examined Conners
as to possible inconsistencies in her testimony. (Id. at 713:15–715:3, 757:18–759:20.) The jury
nevertheless convicted Fortson.
Finally, the court considers the belated affidavits submitted by Andee Caver, Petitioner’s
daughter, and Brenda Caver, Petitioner’s ex-girlfriend and Andee’s mother. The affidavit of Andee
Caver indicates, in relevant part, that she was “coerced” into perjuring herself at Fortson’s trial
because she was afraid of the prosecutor. (ECF No. 9-2, at 82.) She also avers that she had never told
police that Fortson admitted to killing Ms. Lovett. (Id.) She provides no reason for her delay in
coming forward. Brenda Caver similarly avers that she was forced to perjure herself at Andrew
Fortson’s trial. (Id. at 84.) She was afraid of going to jail, was angry with Fortson, and thought it
best to comply “when the police and prosecutors began to get rough with [her] and [her] daughter
. . . .” (Id.) She avers that she came forward and provided the affidavit because she retained a lawyer.
(Id.) Robert Caver, Brenda’s brother and Andee’s uncle, also submitted an affidavit. (Id. at 80.) He
avers, in relevant part, that he “convinced” the women to change their trial testimony upon his
release from prison in 2002. (Id.)
As Judge Greenberg correctly explained, such recantation testimony, particularly when it is
belatedly submitted, is typically considered suspect and accorded little weight. See, e.g., Carter v.
Mitchell, 443 F.3d 517, 539 (6th Cir. 2006) (collecting cases); Gray v. Hudson, 1:06–cv–1308, 2008
WL 1995362, at *7 (N.D. Ohio May 5, 2008) (finding “the inherent suspiciousness of the recanting
affidavits [of prosecution witnesses] coupled with their late filing more than three years after
conviction and the lack of explanation as to why they were filed so late” failed to demonstrate “new
reliable evidence” of the petitioner’s actual innocence). The affidavits here—from Fortson’s
daughter and former girlfriend submitted almost two years after trial without any convincing reason
for the delay—are no different.
Moreover, the jury was well aware that both women were extremely reluctant to testify. The
record reveals that Andee Caver was afraid to testify because she had received death threats, and that
she had been taken into custody by the FBI to ensure that she appeared. (Trial Tr. vol. 3,
901:10–904:14, 908:17–909:4.) Fortson’s daughter also explained that she was afraid of the
prosecutors. (Id. at 903:21–904:1.) Brenda Caver confirmed that she and her daughter had spent the
night before trial in jail because they failed to appear in court to testify, and that they had received
threats. (Id. at 852:4–854:23.) And, Andee Caver’s testimony was far from unequivocal. Andee
recalled that she had previously given a statement to the Euclid Police in 1991, but denied telling
them Fortson had confessed to killing Ms. Lovett. (Id. at 913:17–916:16.) She only conceded that
she would not have lied to the police when she gave her initial statement. (Id. at 916:16–917:15.)
Consequently, these “recantation” affidavits are unlikely to have a significant impact on the jury if
they were now to be offered into evidence.
Thus, considering the evidence proffered by Fortson, in the context of all the evidence, the
court concludes that Fortson has not carried his burden of demonstrating actual innocence. Even
absent Andee Caver’s testimony, the record is more than sufficient to support his
conviction—Fortson was Ms. Lovett’s pimp; had a history of violence against his prostitutes;
became very angry with, and threatened to kill, Ms. Lovett two days before her body was found;
appeared distressed and paranoid the night of the murder; and had Conners lie about his whereabouts
because he had no alibi. The fact that the only fingerprints found in Ms. Lovett’s apartment, other
than her own, were those of Fortson’s half brother Robbie Robertson and cousin Charles Tolliver,
also supports the inference that Petitioner, rather than Archie Jones, was involved in the murder.1
While Petitioner’s efforts to contradict some of the testimony adduced at trial may marginally
undermine the State’s theory of the murder, this evidence does not persuade the court that no juror,
acting reasonably, would have voted to convict Fortson beyond a reasonable doubt. Cf. Schlup, 513
In his Objections, Fortson argues that the court cannot consider this evidence
because the jury rejected the State’s theory that he ordered Robertson and Tolliver
to murder the victim, as evidenced by his acquittal on the conspiracy charge. (Objs.
53–62, 17–18.) Fortson also contends that this evidence should not have even been
considered at trial, because the statute of limitations had previously run on the
conspiracy charge. (Id. at 54.) However, Fortson and Robertson were also charged
with aiding and abetting each other in the commission of aggravated murder. (Trial
Tr. Vol. 3, 1084:–1085:18.) This evidence is certainly relevant to that theory of
U.S. at 329.
B. Evidentiary Hearing
Petitioner also objects to Judge Greenberg’s denial of his request for an evidentiary hearing.
Fortson argues, as he did in his Motion for an Evidentiary Hearing and his Traverse, that he is
entitled to an evidentiary hearing to fully develop his actual innocence claim. (Objs. 65–69.)
Petitioner also contends that Judge Greenberg applied the incorrect standard in evaluating his
request. (Objs. 21–23.) He asserts the Magistrate Judge improperly assessed the reliability of the
proffered evidence of actual innocence and that the only proper way to assess that evidence is by
holding an evidentiary hearing. (Id.)
Petitioner’s Objections are not well taken. Upon careful de novo review, the court finds that
Petitioner has failed to demonstrate how an evidentiary hearing might realistically enhance his
insufficient showing of his actual innocence. See Freeman v. Trombley, 483 F. App’x 51, 66 (6th
Cir. 2012). Accordingly, the court finds that an evidentiary hearing is not required in this case.
For the foregoing reasons, the court adopts Judge Greenberg’s R & R (ECF No. 43) for the
reasons stated therein, as well as those explained herein, and hereby dismisses Fortson’s Petition
under 28 U.S.C. § 2254 (ECF No. 1). The court also grants in part and denies in part Fortson’s
Motion to Expand Record (ECF No. 36) and denies his Motion for Evidentiary Hearing (ECF No.
38). The court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could
not be taken in good faith, and that there is no basis on which to issue a certificate of appealability.
Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c) (2014).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT COURT
February 15, 2017
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