Larkins v. Warden, Belmont Corr. Inst.
Decision Date | 06 January 2020 |
Docket Number | Case No. 2:19-cv-421 |
Parties | Frank Lee Larkins, Jr., Petitioner, v. Warden, Belmont Correctional Institution, Respondent. |
Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
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:
State v. Larkins, 7th Dist. No. 16 JE 0032, 2017 WL 6813279, at *1-2 (Ohio Ct. App. Dec. 18, 2017).
Petitioner asserts that he was denied a fair trial due to admission of testimony that he previously raped other children and the trial court's failure to conduct a competency evaluation (claims one and seven); that he was denied the effective assistance of trial and appellate counsel (claims two and three); that he is actually innocent (claim four); that the evidence is constitutionally insufficient to sustain his conviction (claim five); and that police unconstitutionally obtained his confession (claim six). The Magistrate Judge recommended dismissal of Petitioner's claims as procedurally defaulted or without merit.
Petitioner objects to those recommendations and to the denial of his June 10, 2019, motion for extension of time to file a traverse. Petitioner explains that he could not file a timely traverse due to his limited access to the prison's law library and constraints imposed by the prison's mailroom. He maintains that he did not receive a fair trial because a prosecution witness testified that Petitioner had a warrant out for his arrest and said "he might be in trouble because he slept with this little girl. . . and [] didn't name the other eight or nine little girls that he supposedly slept with." Objection, ECF 26, PAGEID # 952. Petitioner argues that the witness made this statement deliberately, that the prosecutor failed to appropriately prepare the witness to testify, and that the trial court's curative instructions failed to cure the prejudice. Petitioner further complains that the Magistrate Judge sua sponte raised the issue of procedural default in connection with his allegation in claim one that he was denied due process because the trial court rushed the proceedings. He complains that the trial court failed to conduct a pre-sentence investigation prior to imposing sentence, and that his attorney did not file a sentencing memorandum. Petitioner objects to the recommendation of dismissal of claims two through seven as procedurally defaulted. He asserts the ineffective assistance of counsel as cause for his procedural default and refers to his pro se indigent status as an incarcerated prisoner. Petitioner complains that neither the trial court nor his attorneys advised him about the procedure for filing an application for reopening of the appeal under Ohio Rule 26(B).
Petitioner's objections are not well-taken. The Court provided Petitioner ample opportunity to file his objections, granting his request for an extension of time of approximately sixty days, and instructed him to include therein any arguments he had intended to include in a traverse. Petitioner had the additional opportunity to do so when the Court again granted his request for a sixty-day extension of time for the filing of this objection. This Court has reviewed the entire record and all of the arguments Petitioner raises. The record does not reflect a basis for relief.
A federal district court may sua sponte raise the issue of procedural default where, as here, it provides the Petitioner with an opportunity to respond by the filing of objections. See Nelson v. Warden, Warren Corr. Inst., No. 2:17-cv-0730, 2017 WL 4772869, at *2 (S.D. Ohio Oct. 20, 2017) (citing Tolliver v. Sheets, 530 F. Supp. 2d 957, 962 (S.D. Ohio 2008) (citing Foti v. Bobby, No. 1:05-cv-1019, 2007 WL 1577785 (N.D. Ohio May 31, 2007)) (citing Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005); Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. 2002)). Moreover, Petitioner waived his claims by failing to raise them on direct appeal.
He has failed to establish cause for this procedural default. It is his burden to do so. See Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) () (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted)). Petitioner's pro se status and ignorance of the law or procedural requirements does not excuse a procedural...
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