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Larkins v. Gray

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 11, 2019

FRANK LEE LARKINS, JR., Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          Michael H. Watson District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is a habeas corpus action brought pro se by Petitioner Frank Lee Larkins, Jr., to obtain relief from his conviction in the Common Pleas Court of Jefferson County and his consequent imprisonment in Respondent's custody. The case is ripe for decision on the Petition (ECF No. 6), the State Court Record (ECF No. 10), and the Return of Writ (ECF No. 11). In ordering an answer, Magistrate Judge Vascura set a deadline for Petitioner to file a reply of twenty-one days after the Return of Writ was filed. The Return was filed May 7, 2019, more than twenty-one days have elapsed since then, and Petitioner has filed no reply[1].

         The Magistrate Judge reference in this case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District.

         Litigation History

         Larkins was indicted by the Jefferson County grand jury on August 5, 2015, on one count of rape of a victim less than thirteen years old. A trial jury convicted him and he was sentenced on June 1, 2016, to the mandatory term of life imprisonment with parole eligibility after ten years. After he failed once to file a timely appeal, the appellate court granted leave to file a delayed appeal raising one assignment of error. The court of appeals affirmed. State v. Larkins, 2017-Ohio-9369 (7th Dist. Dec. 18, 2017), reconsideration denied, 2018-Ohio-679 (Feb. 20, 2018), appellate jurisdiction declined, 152 Ohio St.3d 1479 (2018). Larkins deposited his Petition for Writ of Habeas Corpus in the prison mailing system on February 1, 2019, which is deemed to be the filing date. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).

         Larkins pleads the following grounds for relief:

Ground One: The trial court erred when it refused to grant petitioner a mistrial when a state's witness alleged that petitioner had committed several other rapes in violation of clearly established federal law and when the trial court conducted all of the proceedings in a single afternoon; both in violation of the United States Constitution Sixth and Fourteenth Amendments and/or Due Process Clause.
Ground Two: Petitioner was denied effective assistance of counsel at trial in violation of the Sixth Amendment.
Ground Three: Petitioner was denied effective assistance of counsel on appeal in violation of the Sixth Amendment.
Ground Four: Petitioner is actually innocent.
Ground Five: Petitioner['s] conviction is against the legal and factual sufficiency of evidence and is not consistent with the demand of the federal Due Process Clause.
Ground Six: The confession secured by the police was improper as the police used trickery in securing the confession from petitioner in violation of U.S. Constitutional Amendment X and XIV and Due Process Clause.
Ground Seven: The trial court violated Due Process Clause by failing to conduct competency hearing sua sponte.

         (Petition, ECF No. 6, PageID 47-64.)

         Analysis

         Ground One: Denial of Fair Trial and Due Process

         In his First Ground for Relief, Larkins claims that he was denied a fair trial and due process of law when the trial court failed to declare a mistrial after a witness alleged Larkins had committed several other rapes. Respondent defends this claim on the merits and asks this Court to defer to the decision of the Seventh District Court of Appeals. Although federal constitutional issues were not mentioned in the court of appeals nor raised in Appellant's Brief (State Court Record, ECF No. 10, Ex. 20), Respondent does not raise an affirmative defense of lack of fair presentation. Instead, Respondent argues that the trial judge's handling of this improper testimony is neither contrary to nor an objectively unreasonable application of clearly established Supreme Court precedent.

         The Magistrate Judge agrees. The damaging comment was blurted out by Larkins' alibi witness and not elicited by the prosecution. The trial court took immediate steps to prevent prejudice by instructing the trial jury to ignore the comment. The Supreme Court has never held that even the intentional admission of prior bad acts renders a trial so unfair that a mistrial must be granted. “There is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell,329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to reach the issue in Estelle v. McGuire. 502 ...


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