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State v. Miller

Court of Appeals of Arizona, Second Division, Department B

June 24, 2013

THE STATE OF ARIZONA, Respondent,
v.
GEORGE WASHINGTON MILLER, Petitioner.

Not for Publication Rule 111, Rules of the Supreme Court

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2002020972 Honorable Edward Bassett, Judge.

George W. Miller Florence In Propria Persona

MEMORANDUM DECISION

VIRGINIA C. KELLY, Judge

¶1 In 2003, petitioner George Miller was convicted after a jury trial of three counts of sexual conduct with a minor, one count of kidnapping, and one count of sexual molestation of a child, all dangerous crimes against children. This court affirmed his convictions and the sentences imposed. State v. Miller, No. 1 CA-CR 03-0533 (memorandum decision filed Jun. 8, 2004). Miller now seeks review of the trial court's order dismissing his fourth notice of post-conviction relief filed in this matter pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb the ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We see no such abuse here.

¶2 In his first post-conviction proceeding, filed by retained counsel, Miller raised claims of ineffective assistance of counsel and challenged his sentences based on Blakely v. Washington, 542 U.S. 296 (2004), and its progeny. The trial court rejected Miller's claims and dismissed the petition without an evidentiary hearing. This court denied Miller's petition for review in an order dated April 9, 2008. State v. Miller, No. 1 CA-CR 07-0664 PRPC (order filed Apr. 9, 2008).

¶3 Miller filed a second notice of and petition for post-conviction relief in June 2009, and a third notice and petition in May 2011. The trial court denied relief in both proceedings. He filed a fourth notice of post-conviction relief in September 2011. The dismissal of that notice is the subject of the petition for review now before us.

¶4 In his September 2011 notice, Miller stated he wished to raise a variety of claims, three of which the trial court characterized as falling under Rule 32.1(a). The court correctly found these claims could not be raised in an "untimely or successive" post-conviction proceeding and therefore were precluded. See Ariz. R. Crim. P. 32.2(a). As the court further noted, Miller also had stated in his notice he intended to raise a claim of actual innocence, pursuant to Rule 32.1(h), based on newly discovered evidence. See Ariz. R. Crim. P. 32.1(e). The court correctly found Miller had failed "to support this claim with sufficient facts, evidence, or law. In fact, [he] fails to allege any facts to support his claim except to say that there was insufficient evidence to convict him at trial." Concluding Miller had "fail[ed] to state a claim that can be addressed in an untimely or successive Petition for Post-Conviction Relief, " the court dismissed the notice and denied Miller's subsequent motion for rehearing.

¶5 The trial court's rulings were correct and Miller has not persuaded this court otherwise on review. His argument focuses primarily on his purported claim of actual innocence under Rule 32.1(h), but he has not established how the court abused its discretion in dismissing the notice. The court's ruling belies Miller's assertion in his petition for review that it dismissed the notice because Miller had failed to attach affidavits and other documents that are required to support a petition under Rule 32.5. The court applied the appropriate standard for ruling on a successive notice of post-conviction relief. See Ariz. R. Crim. P. 32.2(b). Also contrary to Miller's assertion, as a pro se litigant he is held to the same standards as a qualified attorney. See State v. Cornell, 179 Ariz. 314, 331, 878 P.2d 1352, 1369 (1994); see also Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Therefore, his repeated reliance on his lack of legal knowledge to explain the failure of the notice to withstand summary dismissal is unavailing.

¶6 For the reasons stated, we grant his petition for review but deny relief.

CONCURRING: GARYE L. VÁSQUEZ, Presiding Judge, PHILIP G. ESPINOSA, Judge


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