United States District Court, D. Arizona
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF
F. METCALF UNITED STATES MAGISTRATE JUDGE.
MATTER UNDER CONSIDERATION
presently incarcerated in the Arizona State Prison Complex at
Kingman, Arizona, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on October 19, 2018 (Doc.
1). On March 26, 2019 Respondents filed their Limited Answer
(Doc. 10). Petitioner filed a Reply on April 29, 2019 (Doc.
Petitioner's Petition is now ripe for consideration.
Accordingly, the undersigned makes the following proposed
findings of fact, report, and recommendation pursuant to Rule
8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal
Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule
72.2(a)(2), Local Rules of Civil Procedure.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND
PROCEEDINGS AT TRIAL
1, 2007, Petitioner, who was some 40 years of age at the
time, was indicted on four counts, including charges of
sexual conduct with a minor, public sexual indecency, and
molestation of a child, relating to conduct with a child
under the age of 15. (Exh. A, Indictment; Exh. F, Sentence
2/14/18.) (Exhibits to the Answer, Doc. 10, are referenced
herein as “Exh. ___.”) This was in Maricopa
County Superior Court Case No. CR2007-126197-001 SE.
(Id.) Petitioner eventually, with advice of counsel,
entered into a written Plea Agreement (Exh. B) agreeing to
plead guilty to three amended counts (1, 2, and 4) of
attempted molestation of a child, in exchange for dismissal
of Count 3, and stipulations of a sentence of no less than
the presumptive term of 10 years in prison for Count 2, and
lifetime probation on Counts 1 and 4. The Plea Agreement
inexplicably bore case number CR2007-015577-001 SE, which was
at some unidentified time overwritten to reflect
Petitioner's case number.
plea hearing, Petitioner admitted to committing the offenses
described in the offered factual basis:
THE COURT: Factual basis, please?
MR. NURMI [Defense Counsel]: Yes, Your Honor. Thank you.
On April 8th, 2007 in a home located in Gilbert, Arizona,
Maricopa County, Mr. Kiker attempted to have sexual contact
with a [JQ], a young man who was under the age of 15 at the
As to Count 1, there was an attempt to have contact with his
penis in a masturbatory fashion.
As to Count 2, there was an attempt to touch the victim's
And as to Count -- as to Count 4, excuse me, there was
attempt to contact, to have contact with the victim's
THE COURT: Sir, is that all, in fact, true?
THE DEFENDANT: Yes, sir.
(Exh. C, R.T. 11/30/7 at 7.)
plea was accepted, and on February 15, 2008, Petitioner was
sentenced (under the proper case number) to an aggravated
sentence of 15 years on Count 2 and consecutive thereto two,
concurrent terms of lifetime probation on Counts 1 and 4.
(Exh. F, Sentence 2/15/08.)
PROCEEDINGS ON DIRECT APPEAL
did not file a direct appeal. (Petition, Doc. 1 at 2.)
Moreover, as a pleading defendant, Petitioner had no right to
file a direct appeal. See Ariz.R.Crim.P. 17.1(e);
and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889
P.2d 614, 616 (1995).
PROCEEDINGS ON POST-CONVICTION RELIEF 1.
1st PCR Proceeding
March 17, 2008, Petitioner filed a Notice of Post-Conviction
Relief (Exh. G). That Notice made no reference to the nature
of claims being made. (See Id. generally.) Counsel
was appointed who eventually filed a Notice of Completion
(Exh. H) asserting an inability to find an issue for review.
On November 17, 2008, Petitioner filed a pro per PCR
Petition (Exh. I) consisting of a form cover page, with no
issues or arguments being raised.
same time, Petitioner apparently filed a second PCR notice.
December 4, 2008, the PCR court ruled the second PCR notice
ineffective because of the pending PCR proceeding, struck the
PCR petition for various defects of substance and form, and
extended the time for Petitioner to file his petition. (Exh.
J, M.E. 12/4/08.) Petitioner did not timely file his PCR
petition, and on June 15, 2009, the court dismissed the PCR
proceeding. (Exh. K, M.E. 6/15/09.)
did not seek review. (Exh. M, M.E. 6/6/18 at 1.)
2nd PCR Proceeding
9 years later, on May 15, 2018, Petitioner filed a second
Notice of Post-Conviction Relief (Exh. L). On June 6, 2018,
the PCR court dismissed the proceeding, concluding that the
notice was untimely, and Petitioner failed to allege facts to
show that his claims were subject to any applicable exception
to the time limits. (Exh. M, M.E. 6/6/18.)
25, 2018, Petitioner filed a Petition for Review (Exh. N),
seeking review from the Arizona Court of Appeals.
October 2, 2018, the Arizona Court of Appeals granted review,
but summarily denied relief. (Exh. O, Mem. Dec. 10/2/18.)
Petitioner did not seek reconsideration or further review,
and on November 16, 2018, the appellate court issued its
Mandate. (Exh. O, Mandate.)
PRESENT FEDERAL HABEAS PROCEEDINGS
- Petitioner commenced the current case by filing his
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 on October 19, 2018 (Doc. 1). The Petition
contains Petitioner's declaration under penalty of
perjury that it was “placed in the prison mailing
system on October 15, 2018.” (Id. at 11.) The
envelope in which the ...