BASHOR v STATE
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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: Lodge, Montana Howard L. B 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 postconviction relief. in the original petition for 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 supplemental petition for state habeas corpus relief. followed claiming that his good A 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. followed. not Appellant does appeal the This appeal 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. 333, 792 P.2d 370. State v. Gorder (1990), 243 Mont. 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
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