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BENSON v. TERHUNE

July 26, 2001

JANE ELLYN BENSON, PETITIONER,
V.
CAL TERHUNE JR., DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Hamilton, District Judge.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

Now before the court is the petition for a writ of habeas corpus filed by state prisoner, Jane Ellyn Benson, pursuant to 28 U.S.C. § 2254. Having reviewed the parties papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby DENIES petitioner's petition.

INTRODUCTION

On June 15, 1987, Jane Ellyn Benson, ("petitioner"), went to the home of Elaine Wright ("Wright") and her fiance, Joe McMahon ("McMahon") believing that McMahon had stolen some of her property. Around 7 a.m., petitioner burst into the bedroom where McMahon and Wright were sleeping and screamed at them demanding the return of her property. Petitioner was carrying a Raven 25 — caliber pistol in her right hand. She fired, one shot into the floor, moved closer to the bed, and then fired a second shot in the same direction.

Petitioner left the bedroom with McMahon following her into the living room, and then walked back into the bedroom where Wright remained in bed. McMahon heard shouting, and then a third shot. McMahon and Melinda, Wright's sister, ran into the bedroom and found petitioner standing several feet away from the bed facing Wright, still holding the gun in her right hand. Wright had been shot in the chest and died of her wounds.

Petitioner contended that Wright was accidentally shot when Wright attempted to grab the gun from petitioner. However, forensic tests revealed that accidental discharge of the gun was unlikely since no gunshot residue was found on Wright's. hands. The tests also proved inconsistent with petitioner's testimony that Wright was near the muzzle when the gun was fired.*fn1

FACTUAL HISTORY

Petitioner has a history of medical and drug abuse problems. At the time of her arrest, petitioner suffered from chronic back pain arising from a 1979 back injury and two surgical attempts to repair that injury. She regularly abused alcohol and drugs including marijuana, methamphetamine, heroin, cocaine, and various prescription drugs. She also used a TENS (transcutaneous electric nerve stimulator) unit to control pain. On the morning of the crime, petitioner admitted to being under the influence of methamphetamine.

Petitioner's petition for writ of habeas corpus concerns the periods she was in custody prior to and during her trial. Petitioner was arrested, booked for murder, and taken into custody at the Lake County Jail on June 16, 1987. She remained in custody until June 29, 1987, when she was released on bail. From June 16 to June 29, Lake County jail medical staff prescribed petitioner the following drugs: Valium, an anti-anxiety medication to relieve muscle spasms; Bentyl, an antispasmodic for gastrointestinal tract; Robaxin, a muscle relaxant; Tagamet, an antacid; and Phenergan, an expectorant for cough. The medical staff administered these drugs in varying combinations and doses.

The court ordered petitioner back into custody on January 11, 1988, for failure to appear in court. Petitioner was released on bail again on January 28, 1988, but was remanded back into custody on February 3 for failure to appear in court. The court found a. reasonable basis for her first absence on January 11, excused it, and renewed her bail eligibility. She was remanded a second time on February 3 because she arrived a few minutes late for court. After which, petitioner remained in custody throughout her trial up until her trial concluded and she was sentenced on April 1, 1988.

Starting on February 3, 1988, when petitioner returned to jail, she complained of back pain and insomnia for which the jail medical staff administered a combination of drugs including: Benadryl to aid with sleep; Motrin, an anti-inflammatory analgesic; Valium for petitioner's back muscle spasms; a cocktail of Tylenol 3 with Codeine, an analgesic, combined with Robaxin and Nalfon, an anti-inflammatory, to relieve pain. The mental health unit also prescribed Elavil, an anti-depressant and Vistaril, an anti-anxiety drug. The medical treatments usually lasted for several days to a week, sometimes up to nineteen days depending on the nature of petitioner s physical condition and complaints. Petitioner also requested to see her own doctor and that her TENS unit from home be brought to her for her back pain. However, petitioner failed to follow up on these requests.

PROCEDURAL HISTORY

On February 16, 1988, a Lake County jury convicted petitioner of second-degree murder, with enhancements for use of a firearm (Cal.Penal Code §§ 187 and 12022(a) and 12022.5(a)(1)). She was sentenced to 17 years to life in prison. The California Court of Appeals affirmed petitioner's conviction and sentence on February 25, 1989. The California Supreme Court denied review on August 10, 1989.

On March 22, 1988, petitioner filed her first state habeas corpus petition in Lake County Superior Court alleging ineffective assistance of counsel and inadequate medical care. On April 12, 1988, petitioner filed a second petition, which was consolidated with the first petition. On April 22, 1988, the superior court denied the claim of inadequate medical care and shortly thereafter on July 22, 1988, petitioner voluntarily dismissed her ineffective assistance claim and withdrew her habeas petition on that issue.

On March 7, 1991, petitioner filed a second state habeas petition in superior court which was denied on the day it was filed. The California Court of Appeals denied her petition for review on April 3, 1991. Subsequently, the California Supreme Court denied her petition on May 22, 1991.

On May 23, 1991, petitioner filed her first federal habeas petition, alleging that involuntary medication had impaired her ability to fully participate in her defense during trial. This court denied the petition on March 10, 1992. The Ninth Circuit Court of Appeals affirmed the district court ruling on April 29, 1994, while authorizing filing of another habeas petition in district court.

On November 17, 1994, petitioner filed her second federal habeas petition. She also moved to enlarge the record to reassert her claim that she had been involuntarily medicated without her consent and that the medication compromised her ability to fully participate in her defense during trial. On November 15, 1995, this court granted the motion to expand the record and ordered respondent to show cause why a writ should not be issued. On May 28, 1996, this court dismissed the petition ...


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