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Miller v. Ryan

United States District Court, D. Arizona

April 14, 2017

George Miller, Petitioner,
Charles L. Ryan, et al., Respondents.



         Before 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 “properly” filed.

         After 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.


         On May 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 trial:

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 house.
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 ...

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