Michael L. Larr v. Warden Misty Mackey

Summary

The United States District Court for the Southern District of Ohio overruled Michael L. Larr’s objections to the Magistrate Judge’s Report and Recommendations and adopted the recommendation to dismiss his habeas petition with prejudice. The court rejected challenges concerning jurisdiction, AEDPA deference, probable cause for arrest, sufficiency of the evidence, the Confrontation Clause, hearsay, and procedural default. The court denied a certificate of appealability and certified that an appeal would be objectively frivolous for purposes of proceeding in forma pauperis.

Holdings

1. A notice of appeal concerning only a bond request did not transfer jurisdiction over the entire habeas case or prevent the district court from deciding the merits of the habeas petition.
2. The federal habeas court must review the last state-court decision adjudicating the constitutional issue on the merits and may not disregard lower state-court decisions merely because the state supreme court declined jurisdiction.
3. An alleged arrest without probable cause, standing alone and without an unlawful seizure of evidence affecting the conviction, is not a basis for federal habeas relief after indictment and conviction.
4. The Ohio appellate court's conclusion that sufficient evidence supported Larr's convictions was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.
5. Claims concerning testimony by the victim's mother and petitioner's wife were procedurally defaulted because the record showed no contemporaneous evidentiary objection and the state appellate court did not review those claims for plain error.
6. The state appellate court's determination that the child's statements were not testimonial because the interview was conducted primarily for medical diagnosis and treatment was not contrary to or an unreasonable application of clearly established Supreme Court precedent.
7. The child's use of terminology allegedly not unexpected for a child of her age did not establish that the statements were inadmissible hearsay or that the state court unreasonably applied clearly established Supreme Court law.
8. Because reasonable jurists would not disagree with the disposition, the petitioner was denied a certificate of appealability, and the court certified that an appeal would be objectively frivolous for purposes of proceeding in forma pauperis.

Questions Presented

1. Whether the pendency of Larr's appeal concerning a bond request deprived the district court of jurisdiction to decide the merits of his habeas petition.
2. Whether the district court was required to review Larr's constitutional claims de novo because the Ohio Supreme Court declined jurisdiction.
3. Whether Larr's alleged arrest without probable cause was cognizable in federal habeas proceedings or established actual innocence sufficient to overcome procedural default.
4. Whether the Ohio appellate court's determination that sufficient evidence supported Larr's gross-sexual-imposition convictions was contrary to or an unreasonable application of clearly established Supreme Court precedent under AEDPA.
5. Whether claims concerning the admission of the child's statements were procedurally defaulted where Larr failed to make a contemporaneous evidentiary objection.
6. Whether the Ohio appellate court's determination that the child's statements were nontestimonial and admissible under a medical-diagnosis exception was contrary to or an unreasonable application of clearly established Supreme Court Confrontation Clause precedent.
7. Whether the child's use of terminology allegedly not unexpected for a child of her age rendered her statements unreliable and inadmissible hearsay.

Disposition

dismissed