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Bausman v. Diaz

United States District Court, Ninth Circuit

July 30, 2013

BARRY ALLAN BAUSMAN, Petitioner,
v.
RALPH DIAZ, Warden, Respondent.

MEMORANDUM DECISION

STEPHEN J. HILLMAN, Magistrate Judge.

I. PROCEEDINGS

Petitioner, a prisoner in the custody of the California Department of Corrections and Rehabilitation, challenges his 1993 convictions and sentence in the Superior Court of California, Ventura County (Case No. CR 30420).

On May 2, 2013, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"). Petitioner solely alleges that he received ineffective assistance of counsel based on his trial counsel's failure to disclose a plea bargain offered by the prosecution before trial. (Petition at 5, Attachment at 20-63).

Respondent filed an Initial Answer to the Petition on May 28, 2013. Respondent filed a Return to the Petition ("Return") on June 27, 2013. In the Return, respondent contended that the Petition should be dismissed on the grounds that it is barred by the one-year statute of limitations. (See Return at 3-5). Respondent alternatively contended that the sole claim alleged in the Petition was procedurally defaulted. (See Return at 4-5).[1]

After receiving an extension of time, petitioner filed a Reply to the Return on May 20, 2013.

Thus, this matter now is ready for decision.

II. PROCEDURAL HISTORY

On April 8, 1993, a Ventura County Superior Court jury found petitioner guilty of two counts of forcible rape, one count of sodomy by use of force, four counts of forcible oral copulation, and three counts of rape by a foreign object, and one count of false imprisonment by violence. In addition the jury found true the special allegations that in the commission of the offenses petitioner used a firearm and deadly weapon. (See Clerk's Transcript ["CT"] 122-35; 5 Reporter's Transcript ["RT"] 1161-66). On May 6, 1993, the trial court sentenced petitioner to state prison for a total of seventy years. (See CT 136-395 RT 1200-08).

Petitioner appealed his convictions and sentence to the California Court of Appeal. (See respondent's Notice of Lodging of Documents ["Lodgment"] Nos. 3 and 5). Petitioner also filed a petition for writ of habeas corpus with the California Court of Appeal. (See Lodgment No. 6). In an unpublished Opinion issued on December 22, 1994, the California Court of Appeal affirmed the Judgment. (See Lodgment No. 7). On the same date, the California Court of Appeal summarily denied the habeas petition without citation of authority. (See Lodgment No. 8).

Petitioner filed a Petition for Review with the California Supreme Court. (See Lodgment No. 9). On March 22, 1995, the California Supreme Court summarily denied the Petition for Review without citation of authority. (See Lodgment Nos. 10 and 11).

Petitioner subsequently filed a petition for writ of habeas corpus herein (Case No. CV 95-04234-JSL (SH)). On January 31, 1996, that habeas petition was dismissed without prejudice.

Petitioner then filed habeas petitions with the Ventura County Superior Court (see Petition, Exhibit AC1 [noting a second Superior Court habeas petition filed on August 16, 2007), the California Court of Appeal (see Lodgment No. 12 [filed February 29, 2008]), and the California Supreme Court (see Lodgment No. 14 [filed April 23, 2008]), which were respectively denied on October 10, 2007, March 12, 2008 and October 1, 2008. (See Petition, Exhibit AC1; Lodgment Nos. 13 and 15).

On September 25, 2012, petitioner filed a habeas petition with the Ventura County Superior Court, solely alleging the same claim as the claim alleged in the Petition herein. (See Lodgment No. 16).[2] On October 17, 2012, the Ventura County Superior Court denied that habeas petition. The Court stated, in pertinent part, that: "The Petitioner has failed to justify the significant delay in seeking habeas relief on this issue. See In re Clark (1993) 5 Cal.4th 750 , 756. The court finds that these new and additional grounds having been known (factually) to the Petitioner since the Spring of ...


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