Larkin v. Indiana State of

Filing 7

OPINION AND ORDER: The Court DISMISSES the petition 2 for lack of jurisdiction and DENIES the petitioner a certificate of appealability. The Clerk is DIRECTED to close this case. Signed by Judge Gretchen S Lund on 1/6/2025. (ash)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHN B. LARKIN,
Petitioner,
v.

CAUSE NO. 2:24-CV-423-GSL-JEM

ATTORNEY GENERAL,
Respondent.
OPINION AND ORDER
John B. Larkin, by counsel, filed a habeas corpus petition under 28 U.S.C. § 2254
challenging his involuntary manslaughter conviction in LaPorte County under Case No.
46D01-1212-FA-000610. (ECF 2.) For the reasons explained below, the petition is
dismissed for lack of jurisdiction.
I.

BACKGROUND
Larkin’s case has a long and complex procedural history. As summarized by the

Indiana Court of Appeals:
On a December night in 2012, Larkin and his wife, Stacey Larkin, got into
an argument that quickly devolved into a fatal fight. As Larkin described
the scene to police shortly thereafter, Stacey had attempted to grab the
couple’s handgun from a safe during their argument. Just as Stacey put
her hand on it, Larkin grabbed the gun, too. In response, Stacey ran at
Larkin and knocked them both to the ground, falling forward. According
to Larkin, the handgun suddenly discharged and shot Stacey, who had
been scratching Larkin's face. Larkin then pushed Stacey into a corner
with the handgun, which discharged again, shooting her a second time.
Stacey died from her injuries. . . .
[T]he State charged him with voluntary manslaughter as a Class A felony.
The case quickly developed a lengthy procedural history, largely due to

law enforcement and prosecutorial misconduct. This pre-trial litigation
ended with an Indiana Supreme Court decision holding that any tainted
evidence must be suppressed. See State v. Larkin, 100 N.E.3d 700 (Ind.
2018).
In September 2019, nearly seven years after the shooting, Larkin’s jury
trial began. During the five-day trial, the jury heard evidence that
included Larkin’s first-hand account to the police about the shooting.
Larkin mainly argued self-defense, blaming his wife’s recent erratic
behavior for his need to defend himself. He also revealed evidence of
defects with the handgun, that eventually caused the manufacturer to
issue a product recall, where the gun would “discharge upon being
dropped.” But the State heavily pushed back on this issue. Under ideal
testing conditions, the gun misfired only 2 out of 24 times. And the
misfires occurred when the gun was dropped straight down from a height
of about 4 feet, muzzle pointed up, such that when the gun hit the ground
inertia continued to act on the trigger, producing a misfire. This scenario
also related to the handgun’s second defect, the lack of a “trigger safety”
that prevents the weapon from firing unless the trigger is being pulled by
the shooter. As the State argued to the jury, these conditions were
completely unlike the scene Larkin described since “the gun wasn’t
dropped.”
Larkin v. State, 233 N.E.3d 991 (Table), 2024 WL 1155319, at *1-2 (Ind. Ct. App. Mar. 18,
2024) (headnotes and internal citations omitted). Larkin was found guilty of involuntary
manslaughter and sentenced to serve two years in prison. Id. He appealed, but his
conviction was affirmed. Id.
After his direct appeal concluded, he sought post-conviction relief alleging
ineffective assistance by his trial attorneys. Id. at *2. Following an evidentiary hearing,
his petition was denied, and the Indiana Court of Appeals affirmed on appeal. Id. at *24. He sought transfer to the Indiana Supreme Court, but his petition was denied
without comment. Larkin v. State, 238 N.E.3d 648 (Ind. 2024).

2

On December 3, 2024, he filed a federal habeas corpus petition pursuant to 28
U.S.C. § 2254 asserting ineffective assistance of counsel. (ECF 2.) He stated in the
petition (and public records confirmed) that he was sentenced to serve two years in
prison in 2019. (ECF 2.) Because five years had passed since the sentence had been
imposed, it appeared that he was no longer “in custody” pursuant to the conviction as
required by 28 U.S.C. § 2254. The court therefore ordered him to show cause why the
case should not be dismissed for lack of jurisdiction. (ECF 5.) He has since filed his
response. (ECF 6.)
II.

ANALYSIS
A district court may “entertain an application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of a State court[.]” 28 U.S.C.
§ 2254(a). The Supreme Court has interpreted this language to mean that for a court to
have jurisdiction over a federal habeas petition, the petitioner must be “in custody”
pursuant to the conviction under attack at the time the petition was filed. See Maleng v.
Cook, 490 U.S. 488, 490–91 (1989). Incarceration satisfies this requirement, as does parole.
Id.; Spencer v. Kemna, 523 U.S. 1, 7 (1998). However, a petitioner cannot use 28 U.S.C.
§ 2254 to challenge a conviction when he has “already served the entirety of his
sentence.” Lackawanna County District Attorney v. Coss, 532 U.S. 394, 401 (2001).
In his response, Larkin confirms that he is no longer in prison and is currently
living with his family in Michigan. (ECF 6 at 3.) He also confirms that he is not on
“probation, parole or Indiana supervision.” (Id. at 3.) He nevertheless argues that he

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satisfies the “in custody” requirement because he is “prohibited from
purchasing/possessing a firearm” due to his conviction. (Id. at 1.)
This argument is unavailing. The Seventh Circuit has expressly held that “a
habeas petitioner is not ‘in custody’ pursuant to a particular conviction unless his
physical liberty of movement is limited in a non-negligible way, and that limitation is a
direct consequence of the challenged conviction.” Stanbridge v. Scott, 791 F.3d 715, 719
(7th Cir. 2015) (emphasis in original). A limitation on Larkin’s right to possess firearms
does not impact his “physical liberty of movement,” and therefore does not render him
“in custody” for purposes of the federal habeas statute. 1 See id.; Virsnieks v. Smith, 521
F.3d 707, 719 (7th Cir. 2008) (requirement that petitioner comply with state sexual
offender registration did not limit his physical movement and therefore did not satisfy
“in custody” requirement); Harvey v. State of South Dakota, 526 F.2d 840, 841 (8th Cir.
1975) (loss of right to work in certain professions and carry a firearm did not satisfy “in
custody” requirement); People ex rel. Sherman v. People of State of Ill., No. 03 C 0385, 2006
WL 200189, at *1 (N.D. Ill. Jan. 19, 2006) (“The mere inability to acquire or possess
firearms does not give rise to the type of restraint on personal liberty that satisfies the
‘in custody’ requirement. If we were to accept such an expansive view of the ‘in
custody’ requirement, we would read it out of § 2254.”).

1 There is also no indication that this limitation is a direct consequence of his conviction, meaning
that it was “imposed by the sentencing court as part of the authorized punishment, and included in the
court's judgment.” Stanbridge, 791 F.3d at 719. He does not clearly explain the source of the restriction, but
he appears to be referring to a law of general application in either Indiana or Michigan, where he is
presently living. (See ECF 6.)

4

Larkin cites two cases in support of his position, Torzala v. United States, 545 F.3d
517 (7th Cir. 2008), and Dekelaita v. United States, 108 F.4th 960 (7th Cir. 2024). (ECF 6 at
1-2.) These cases are inapposite. There was no question in those cases that the
petitioners were “in custody” when they filed their petitions. See Dekelaita, 108 F.4th 9at
967-68; Torzala, 545 F.3d at 521. Instead, the dispute was over whether the petitioners’
release from custody rendered their petitions moot. The Circuit held in both cases that
certain lingering consequences of the petitioners’ convictions meant there was an
existing “case or controversy” sufficient to satisfy Article III. Dekelaita, 108 F.4th at 968;
Torzala, 545 F.3d at 521.
Here, by contrast, the question is not whether Larkin’s petition has become moot;
it is whether he was “in custody” when he filed the petition, which is a threshold
requirement for seeking federal habeas relief. The court concludes that he was not.
Because his sentence was fully completed before he filed the petition, the court lacks
jurisdiction to consider his claims. Maleng, 490 U.S. at 490.
Pursuant to Section 2254 Habeas Corpus Rule 11, the court must consider
whether to grant or deny him a certificate of appealability. To obtain a certificate of
appealability when a petition is dismissed on a procedural ground, the petitioner must
establish that reasonable jurists would find it debatable whether the court was correct in
its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). As explained above,
Larkin does not satisfy the threshold “in custody” requirement for pursuing federal
habeas relief under 28 U.S.C. § 2254. The Seventh Circuit has made clear that being “in
custody” means having a limitation on one’s physical movement. Stanbridge, 791 F.3d at
5

719. Larkin has no such limitation, and the court finds no basis to conclude that
reasonable jurists would debate the outcome of this ruling. He will not be granted a
certificate of appealability.
III.

CONCLUSION
For these reasons, the court DISMISSES the petition (ECF 2) for lack of

jurisdiction and DENIES the petitioner a certificate of appealability. The clerk is
DIRECTED to close this case.
SO ORDERED on January 6, 2025

/s/Gretchen S. Lund
JUDGE
UNITED STATES DISTRICT COURT

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