AARON MILLER APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

AARON MILLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–001018–MR

Decided: May 24, 2013

BEFORE:  ACREE, CHIEF JUDGE;  TAYLOR AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Aaron Miller, Pro se Bowling Green, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Aaron Miller appeals pro se from the May 16, 2011, order of the Warren Circuit Court which denied his motion for CR  Double 60.02 post-conviction relief.   For the following reasons, we affirm.

In 1992, Miller was convicted by a Warren County jury of twenty-nine counts of first-degree sexual abuse and fourteen counts of first-degree sodomy, relating to the alleged victimization of two children who were less than twelve years old at the time of the alleged offenses.   The Warren Circuit Court sentenced Miller to a total of forty-nine years' imprisonment.   An appeal of right was taken to the Kentucky Supreme Court, which affirmed Miller's conviction and sentence. Double

In 1996, Miller filed pro se a CR 60.02 motion in the Warren Circuit Court requesting modification of his sentence, which was denied.   Miller appealed, but subsequently withdrew his appeal.   One year later, through counsel, Miller filed an RCr  Double 11.42 motion in the Warren Circuit Court, alleging he received ineffective assistance of counsel.   The court granted Miller an evidentiary hearing on the RCr 11.42 motion, and thereafter denied the motion.   Miller appealed and this court affirmed. Double

In 2001, Miller filed a petition for habeas corpus relief in the United States District Court for the Western District of Kentucky, which was denied. Double The Sixth Circuit Court of Appeals denied his request for an appeal. Double Miller then filed a petition for habeas corpus relief in the Oldham Circuit Court, which was denied. Double Miller unsuccessfully appealed. Double In 2009, Miller filed the underlying motion for relief pursuant to CR 60.02 in the Warren Circuit Court, arguing the circuit court failed to consider the merits of his RCr 11.42 motion.   The circuit court denied his motion, and this appeal followed.

On appeal, Miller presents a number of arguments, all of which are procedurally barred and thus we decline to consider the merits of this appeal.   With respect to the procedural posture of Miller's appeal, we note:

The structure provided in Kentucky for attacking the final judgment of a circuit court in a criminal case is not haphazard and overlapping, but is organized and complete.   That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02.  CR 60.02 is not intended merely as an additional opportunity to raise Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ] defenses.   It is for relief that is not available by direct appeal and not available under RCr 11.42.   The movant must demonstrate why he is entitled to this special, extraordinary relief.   Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.

Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983).

In the underlying CR 60.02 motion, Miller directly attacks the findings of fact and conclusions of law contained in the Warren Circuit Court's May 5, 1999, order denying his motion for RCr 11.42 relief.   However, in denying Miller's CR 60.02 motion, the Warren Circuit Court examined the procedural stance of this case, and correctly noted that Miller had already availed himself of the right to appeal its decision denying him RCr 11.42 relief.   The circuit court found that Miller now was attempting to utilize CR 60.02 as an additional and collateral means of attacking its decision, and the prior opinion of this court.   The circuit court further found that Miller had failed to advance any reason justifying the extraordinary relief afforded under CR 60.02, and that his motion was not brought within a reasonable time, as required by the Rule. We agree.

A motion for relief under CR 60.02(e) or (f) must be brought within a reasonable time.  CR 60.02.   The circuit court has discretion to determine what constitutes a reasonable time.  Gross, 648 S.W.2d at 858.   Miller filed the underlying CR 60.02 motion in 2009, seeking relief from the 1999 order of the circuit court.   The circuit court's finding that a ten-year delay is untimely is not an abuse of discretion, despite Miller's claim that his status as a pro se litigant and his ignorance of the law prevented him from filing sooner.   Furthermore, Miller is seeking relief based on the same issues raised in his earlier RCr 11.42 motion, which were found to be without merit both by the circuit court and by this court on appeal.   Lastly, Miller has failed to advance an extraordinary reason so as to justify CR 60.02 relief.

To date, Miller has filed three motions for post-conviction relief, and has attempted at least two other collateral attacks on his conviction by filing federal and state habeas corpus petitions.   Because the underlying CR 60.02 motion is procedurally barred, we decline to address the merits of the arguments Miller raises.   Simply put, Miller is not allowed to use CR 60.02 to advance a legal theory that could have been, or was, brought in a direct appeal or other collateral proceeding. Double

The May 16, 2011, order of the Warren Circuit Court is affirmed.

ALL CONCUR.

VANMETER, JUDGE:   Double