Kiker v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE.

         I. MATTER UNDER CONSIDERATION

         Petitioner, 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. 12).

         The 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.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. PROCEEDINGS AT TRIAL

         On May 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.

         At the 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 time.

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 penis.

And as to Count -- as to Count 4, excuse me, there was attempt to contact, to have contact with the victim's anus.

THE COURT: Sir, is that all, in fact, true?

THE DEFENDANT: Yes, sir.

(Exh. C, R.T. 11/30/7 at 7.)

         The 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.)

         B. PROCEEDINGS ON DIRECT APPEAL

         Petitioner 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).

         C. PROCEEDINGS ON POST-CONVICTION RELIEF 1. 1^st PCR Proceeding

         On 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.

         At the same time, Petitioner apparently filed a second PCR notice.

         On 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.)

         Petitioner did not seek review. (Exh. M, M.E. 6/6/18 at 1.)

         2. 2^nd PCR Proceeding

         Almost 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.)

         On June 25, 2018, Petitioner filed a Petition for Review (Exh. N), seeking review from the Arizona Court of Appeals.

         On 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.)

         D. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - 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 ...