United States District Court, D. Arizona
V. WAKE SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Petitioner George Miller's 2014 Petition for
Writ of Habeas Corpus against Respondents Charles Ryan et al.
(“the State”). (Doc. 13.) Miller previously filed
a petition for habeas corpus in 2009 (Doc. 1, Case No.
09-CV-01739-NVW-MEA), which on September 3, 2009, this Court
sua sponte and erroneously dismissed without
prejudice for failure to exhaust state remedies, as state
post-conviction proceedings were still pending (Doc. 5, Case
No. 09-CV-01739-NVW-MEA). Two and a half months later, the
state court on its own dismissed those post-conviction
proceedings as improper and untimely second proceedings. That
confirmed that Miller's 2009 petition in this Court had
been timely, not premature, and properly filed in this Court.
The State did not contribute to this Court's erroneous
dismissal but did not inform this Court of its error, which
became apparent when the state court dismissed the
then-pending proceedings as late and thus not
several other state-court post-conviction proceedings, all
dismissed as untimely and improper under state law, Miller
brought this second federal habeas corpus proceeding under 28
U.S.C. § 2254 on August 7, 2014.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
14, 2003, a jury found petitioner George Miller guilty on
three counts of sexual conduct with a minor, one count of
kidnapping, and one count of sexual molestation of a child.
(Doc. 1 at 2.) The trial court later sentenced Miller to
consecutive aggravated prison terms of 37 years for each
sexual conduct offense and 35 years for each of the
kidnapping and sexual molestation offenses, all together
totalling 181 years. (Doc. 62-2 at 231-32.) Miller appealed
his verdict and sentence to the Arizona Court of Appeals.
That court laid out the following facts from Miller's
The offenses took place over a period of several weeks during
the 1992-93 school year, while defendant was living in
Phoenix with his girlfriend Joyce and her four children,
including the victim, her then eight-year-old daughter D.J.
The victim testified that, during that period, defendant had
sexual intercourse with her on three separate occasions when
she had come home from school and they were alone in the
The first time it happened, D.J. was either taking a nap or
doing homework and defendant had come up behind her and given
her a hug. He then ran his hand down her back and proceeded
to put her on an ottoman in the living room and take her
clothes off. D.J. was “kicking and screaming, trying to
get him off” her, but defendant was able to place his
penis in her vagina. D.J. testified that she remembered that
“[i]t hurted” and that it “was hard to
walk” afterward. Later that evening, when she was
coming out of the shower, defendant “shoved” her
into her room and said “if you tell anyone, I'll
kill you.” She believed he could follow through on his
threat because defendant kept guns at the house.
The scenario was similar the second time. D.J. had come home
from school and was on the couch with defendant when he
started holding her. D.J. started kicking, screaming, and
scratching, and she managed to get away. Unfortunately, she
“tripped over something and fell, ” and defendant
was able to seize her and hold her down on the floor. He held
her two hands over her head by the wrists and once more
inserted his penis in her vagina.
On the third and last time, D.J. had come home from school
and thought that defendant was not there because she did not
see his truck in the driveway. She entered the house and
began to do her homework when defendant
“appeared” and took her to the ottoman again. He
again began to take her clothes off; but, this time, as he
was doing that, he also told her to “hold this”
and placed his penis in her hand. He then had sexual
intercourse with her again.
After this third occasion, D.J. . . . began staying nearby at
her aunt and uncle's house . . . . She did not reveal the
abuse to her mother, but gave her the excuse that her aunt
and uncle were helping with her homework.
Defendant lived with the family after the third assault but
there were no further incidents. He and Joyce split up in
1997, but he continued to telephone Joyce from time to time
at home. When he called to speak with Joyce at her home in
March 2002, D.J. either answered the telephone or overheard a
message defendant left for Joyce. In either case, D.J. formed
the impression that defendant was about to resume his
relationship with Joyce, which induced her to reveal to Joyce
that he had molested her in the past. . . .
D.J.'s mother reported the matter to police, and a
detective associated with the Child Help Center eventually
interviewed D.J. about the offenses. The state subsequently
filed the present charges, which defendant denied, and the
matter was set for trial.
The state's witnesses at trial consisted of D.J., Joyce,
[two others], and Wendy Dutton, the state's expert
witness on the characteristic behaviors of child sexual abuse
victims. Defendant elected to testify, admitting that he had
molested both his daughters when they were eight, but
contending that sexual abuse counseling had
“cured” him of his ...