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Larkins v. Warden, Belmont Correctional Institution

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

January 6, 2020

Frank Lee Larkins, Jr., Petitioner,
v.
Warden, Belmont Correctional Institution, Respondent.

          Magistrate Judge Michael R. Merz

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE

         On June 11, 2019, the Magistrate Judge issued a Report and Recommendation recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. ECF 14. Petitioner filed an Objection to the Magistrate Judge's Report and Recommendation. ECF 18. Upon recommittal of the case to the Magistrate Judge, on September 5, 2019, the Magistrate Judge issued a Supplemental Report and Recommendation. ECF 20. Petitioner has filed an Objection to the Supplemental Report and Recommendation. ECF 26. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's objections, ECF 18, 26, are OVERRULED. The Report and Recommendation and Supplemental Report and Recommendation, ECF 14, 20, are ADOPTED and AFFIRMED. This action is hereby DISMISSED.

         The Court DECLINES to issue a certificate of appealability.

         Petitioner challenges his May 19, 2016, conviction after a jury trial in the Jefferson County Court of Common Pleas on one count of rape of a child under the age of thirteen. The Ohio Seventh District Court of Appeals summarized the facts as follows:

{¶ 2} At the time of the incident in question, Appellant was living with a woman whom he described as his girlfriend. Although the woman testified that they were not dating, she acknowledged that he did live with her and slept on a couch in the living room. (5/19/16 Trial Tr., p. 183.) On July 23, 2015, three other people stayed at this house. They included a twenty-year-old man and two young girls, including the victim. The victim was twelve-years-old at the time.
{¶ 3} On that night, Appellant's companion woman went to her bedroom and fell asleep while Appellant and the three guests watched television in the living room. According to the victim, she woke up at some point during the night and found Appellant on top of her and engaging in intercourse with her. (Id. at p. 194.) Her pants and underwear had been pulled down around her ankles. She testified that she tried to scream but Appellant held a pillow over her face. She also testified that she tried to force him off of her but he forced her to lie back down. After he completed the rape, the victim testified that he went to another couch to sleep. She noticed a used condom on the table, but it was gone in the morning. (Id. at p. 197.)
{¶ 4} At some point the next day, the victim informed Appellant's companion about the rape. (Id. at p. 199.) According to Appellant, the woman confronted him and threw him out of the house. The record shows that this woman testified she evicted Appellant before she was informed of the rape. Regardless, Appellant's friend picked him up and allowed him to stay at his house. A few days later, this friend learned from his mother that the Toronto Police Department had issued a warrant for Appellant's arrest. The friend informed Appellant, who admitted that he might be in trouble because he "slept with this little girl." (Id. at p. 245.)
{¶ 5} Appellant voluntarily reported to the police station. On his way to the station, he encountered a group of people with knowledge of the situation who allegedly threatened him. On arrival, he was told to come back later to speak with Sgt. Anthony Porreca. Appellant returned later in the day and spoke in an interview room with Sgt. Porreca and Captain Rick Parker. At first, Appellant denied the accusations. However, when told that there may be a difference in the charges if the encounter was consensual, Appellant admitted that he engaged in intercourse with the victim, but said that it was consensual. (Id. at p. 290.) Appellant admitted at least seven times during the videotaped interview that he had intercourse with the victim.
{¶ 6} According to Appellant, the victim began flirting with him and then kissed and tickled him. (Id. at p. 302.) He claimed that the victim told him she wanted to have intercourse and he repeatedly asked her if she was sure, because he did not want to get in trouble. He admitted that he knew she was only eleven or twelve years old and that he kept the condom wrapper. (Id. at pp. 302-303.)
{¶ 7} Appellant made several phone calls to his father while at the police station. Appellant's end of the conversation was recorded. His father told him not to speak with the officers and to get a lawyer, however, Appellant told him that he had already told police what had happened. (Id. at p. 297.) He also informed his father that he had intercourse with the victim and that she was underage.
{¶ 8} On August 5, 2015, Appellant was indicted on one count of rape, a felony of the first degree in violation of R.C. 2907.02 (A)(1)(b), (B). At trial, Sgt. Parker, Officer Porreca, Appellant's friend, Appellant's female companion, the victim, and another young girl who was present at the time of the incident testified on behalf of the state. Appellant and his father testified on his behalf. Appellant's videotaped interview and an audio recording of his calls to his father were played for the jury and were admitted into evidence. Appellant acknowledged during his testimony that he confessed, but claimed that his confession was false. He said that he wanted to go to jail because he was afraid of the people who had confronted him and he would have been homeless because he did not have a place to stay.
{¶ 9} On May 19, 2016, the jury found Appellant guilty of the sole charge of the indictment. A sentencing hearing was held on the same date and the trial court sentenced Appellant to life in prison without parole eligibility for ten years. Appellant is also required by law to report as a tier three sex offender.

State v. Larkins, 7th Dist. No. 16 JE 0032, 2017 WL 6813279, at *1-2 (Ohio Ct. App. Dec. ...


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