Bashor v. State ( 1991 )

No. 91-097
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
HOWARD L. BASHOR,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Howard L. B Lodge, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana
Merle J. Raph, Toole County Attorney, Shelby,
Montana -
Submitted on briefs: August 1, 1991
Justice Terry N. Trieweiler delivered the opinion of the Court.
Howard L. Bashor appeals the order of the District Court of
the Ninth Judicial District for Toole County, denying Bashor's
petition for postconviction relief. We a f f i r m the District Court.
The sole issue presented for appeal is whether the District
Court erred in denying appellant's petition.
Appellant was convicted of deliberate homicide and sentenced
to the Montana State Prison on September 13, 1978, f o r a term of
30 years with 10 years suspended. He appealed his conviction in
State v. Bashor (l98O), 188 Monk. 397, 614 P.2d 470, and this Court
affirmed the conviction.
Appellant filed a petition for postconviction relief in this
Court on July 20, 1981. The petition was denied. Appellant then
filed a petition for writ of habeas corpus with the United States
District Court and that petition was denied. See, Bashor v. Risley
(D.Mont 19821, 539 F. Supp. 259. Bashor appealed, and the Ninth
Circuit Court of Appeals affirmed the decision of the District
Court. See, Bashor v. Risley (19841, 730 F.2d 1228, cert. denied,
469 U.S. 838.
Appellant filed a petition for habeas corpus in this Court on
June 24, 1985. We denied the petition on the ground that the
claims could have been raised in the original petition for
postconviction relief. Appellant proceeded to then file civil
actions against the Board of Pardons and Parole in the United
States District Court. These actions were dismissed.
Appellant then filed a petition for postconviction relief in
District Court on October 31, 1990, raising the same issues he had
raised in his petition for state habeas corpus relief. A
supplemental petition followed claiming that his good time
allowance had not been correctly calculated. On January 18, 1991,
the District Court denied the claims in the petition for
postconviction relief for the reason that they had already been
considered and dismissed by this Court. The supplemental petition
was denied on the grounds that the court did not have jurisdiction
over claims regarding good time calculations. This appeal
followed. Appellant does not appeal the decision on the
supplemental petition.
As noted by the District Court, the matters raised by the
appellant in his petition for postconviction relief have been
previously considered or are procedurally barred. Appellant's
first two claims, alleging illegal arrest and illegal search and
seizure, could have been raised on appellant's 1980 appeal to this
Court, but were not. Under the provisions of 5 46-21-105, MCA,
they were, therefore, waived. State v. Gorder (1990), 243 Mont.
333, 792 P.2d 370. Appellant is procedurally barred from raising
those claims in a petition for postconviction relief.
Appellant's third claim, alleging ineffective assistance of
counsel, was previously considered and denied in his original 1981
petition for postconviction relief. We conclude that the lower
court properly denied appellant's petition and hereby affirm the
District Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter, and West Publishing Company.
We concur:
August 20, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Howard L. Bashor
700 Conley Lake Rd.
Deer Lodge, MT 59722
Hon. Marc Racicot, Attorney General
Deanne Sandholm, Asst. Attorney General
Justice Bldg.
Helena, MT 59620
Merle J. Raph
Toole County Attorney
P.O. Box 730
Shelby, MT 59474
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA