United States District Court, S.D. Ohio, Eastern Division, Columbus
Michael H. Watson, District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Objections (ECF No. 18) to both the
Magistrate Judge's Report and Recommendations on the
merits (“Report, ” ECF No. 14) and the Magistrate
Judge's Decision and Order (ECF No. 17) Granting in Part
and Denying in Part Petitioner's Motion for an Extension
of Time to Object (ECF No. 16). District Judge Watson has
recommitted the case to the Magistrate Judge under
Fed.R.Civ.P. 72 for reconsideration (ECF No. 19).
for Extension of Time
Magistrate Judge's Report and Recommendations on the
merits was served on Petitioner by mail by the Clerk of Court
on the day it was filed, June 11, 2019. The Report contains
at the end the Notice Regarding Objections required by the
Sixth Circuit which advises Petitioner that he has seventeen
days to file objections, fourteen as provided by Fed.R.Civ.P.
72(b) plus three days because service is by mail under
Fed.R.Civ.P. 6(d) (ECF No. 14, PageID 842-43).
24, 2019, Larkins placed in the prison mail system, and
thereby effectively filed, his Motion for Extension of Time
to File Two Objections, one to the Magistrate Judge's
denial of an extension of time to file a traverse and one to
the Report and Recommendations (ECF No. 16). Larkins sought
an additional sixty days to file both of those objections.
Id. at PageID 848. As cause, Larkins cites the
general constraints which apply to legal filings by inmates
at the Belmont Correctional Institution. He also complains
that he had sought a ninety-day extension to file a traverse
which he says was denied as untimely. Id.
28, 2019, the day the Clerk docketed Larkins' request,
the Magistrate Judge granted the sixty days sought for the
merits objections, but denied an extension of time to file
objections relating to the traverse because the request was
untimely filed/mailed (ECF No. 17, PageID 853). The Order
noted “Petitioner now has a full two months to prepare
objections to the Report. He can include in those objections
any argument he would have made in a traverse/reply.”
Objections, Larkins recites the institutional constraints on
prisoner filings generally and then claims these constitute a
showing of excusable neglect so as to justify an extension of
time under Fed.R.Civ.P. 6(b)(1)(B)(ECF No. 18, PageID
Magistrate Judge Jolson ordered the State to answer the
Petition on February 27, 2019, she also set Larkins'
reply date at twenty-one days after the Return of Writ was
filed (Order, ECF No. 5). Thus, Larkins had very ample notice
of what the time interval would be between the Return of Writ
and his reply date. The Return of Writ was filed and
served on May 7, 2019 (ECF No. 11). Thus, Larkins had notice
on or about that date that his time to file a reply would
expire on May 28, 2019, per Judge Jolson's initial Order.
He did nothing to seek more time to file a traverse/reply
until June 5, 2019, when he mailed his Motion for Extension
(See ECF No. 130, PageID 830). In it he makes no claim of
excusable neglect. Instead, he recites what has now become
boilerplate language about restricted library hours at
Belmont Correctional and his lack of representation. The text
of the Motion is less than two pages long and did not require
any apparent legal research at all. In fact, the Motion
itself does not acknowledge that it is untimely and seek to
excuse the untimely filing.
relief, Larkins requests the District Court to vacate the
Report and Recommendations and grant him an additional ninety
days to file a traverse (ECF No. 18, PageID 860). He does not
discuss why he could not incorporate any arguments he would
have made in his traverse into his objections on the merits,
which he was given sixty days to prepare.
Larkins filed his out-of-time motion for extension of time to
file a traverse, he offered no explanation of his
untimeliness, neither acknowledging that the motion was
untimely nor making a claim of excusable neglect. His
objections to the denial of extension are therefore without
merit and should be overruled.
on the Merits
One: Part One: Denial of Fair Trial and Due Process by Denial
of a Mistrial
First Ground for Relief Larkins claims he was denied a fair
trial when the trial judge failed to declare a mistrial after
a prosecution witness adverted to several other supposed
child victims of Petitioner. Furthermore, he claims the trial
was unfair because the “trial court conducted all the
proceedings in a single afternoon.” (Petition, ECF No.
6, PageID 47.)
the first part of this Ground for Relief, the Report
concluded the trial judge's handling of the incident was
not an objectively unreasonable application of Supreme Court
precedent (ECF No. 14, PageID 835).
objects first that the statement objected to was not made by
Larkins' alibi witness, as the Report found, but by a
prosecution witness. The witness in question, Alex Carey, had
been a friend of Larkins since the seventh or eighth grade.
He testified that Larkins called him to pick him up because
he had been kicked out of Elizabeth Irwin's house. He
then picked up Larkins and his belongings and took him to
Carey's house (Tr., ECF No. 10-3, PageID 587). The
prosecutor asked Carey if Larkins ever made any statements to
Carey “about whether or not he, Frank Larkins, thought
he was going to be in trouble.” Id. at PageID
588. Carey responded:
Okay. Well, it was two days after I picked him up and I found
out from my mom that he had like -- there was a warrant out
for him in Toronto and I told him to go down to the Toronto
Police Department and find out what the warrant was for and
then he said that he might be in trouble because he slept
with this little girl and he named -- and he didn't name
the other eight or nine little girls that he supposedly slept
Id. at PageID 588-89. Defense counsel immediately
moved for a mistrial. The prosecutor noted that Carey had
been listed as an alibi witness by Larkins so that
cross-examination was proper. The judge overruled the motion
for mistrial and instructed the jury:
Okay. The Jury is instructed to disregard the witness'
last response as nonresponsive. You will not consider it for
any purpose. It. is to be not considered for any purposes as
-- as if you never heard that statement. It is to ...