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Larkins v. Gray

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

September 4, 2019

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

          Michael H. Watson, District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This 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).

         Motion for Extension of Time

         The 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).

         On June 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.

         On June 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.” Id.

         In his 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 859-60).

         When 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[1] 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.

         As 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.

         When 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.

         Objections on the Merits

         Ground One: Part One: Denial of Fair Trial and Due Process by Denial of a Mistrial

         In his 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.)

         Regarding 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).

         Larkins 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[2] 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 with.

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 ...

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