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Townsend v. McDonald

November 9, 2010

JACK LEE TOWNSEND, PETITIONER,
v.
M.D. MCDONALD RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner, Jack Lee Townsend, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Townsend is currently in the custody of the California Department of Corrections, incarcerated at the High Desert State Prison in Susanville, California. Respondent has filed an Answer and Townsend has filed a Traverse.

STATEMENT OF THE FACTS

Defendant was a 67-year-old alcoholic manual laborer who lived in a poor section of "old" Roseville. For two and a half months in 2004 he rented a room from Mary Ellen Smith, known in the area as "Scary Ellen."

Two weeks before he shot and killed Smith, defendant told his best friend George Bayles, and Bayles's girlfriend Theresa Schuster, that he went into Smith's room with a shotgun, intending to "blow her head off" while she was in bed, but changed his mind. He offered Schuster $50 to hurt Smith, to "kick her ass." For two weeks he "periodically" talked about hurting Smith. The only specific complaints he mentioned were a dispute about recyclable cans belonging to him which Smith had cashed in, and Smith's carping about his general messiness, in particular his failure to clean up toaster crumbs.

On September 7, 2004, defendant told Bayles he was "fed up" and wanted to kill Smith. He was worried about having to live in his van. Bayles, who lived on the same block as defendant, offered to let defendant room with him and said there was a vacancy; defendant replied: "'Well, I wanted to at least hit the bitch [.]'" He said he could commit a crime to get "three hots and a cot," meaning room and board in a penitentiary. Both Bayles and Schuster testified defendant was not drunk, although he had had some beer.

Defendant had left Bayles's place at around 7 p.m. and returned about an hour and a half later, telling Bayles and Schuster something like: "I just got Mary Ellen. I shot that bitch four times." After some discussion Bayles and Schuster left to call 911. Defendant was on "his phone calmly talking to his girlfriend Dee." Schuster testified defendant was not drunk.

Roseville Police Department officers found Smith, aged 47, in her bed, under a blanket with four holes in it, with four close-range wounds to the chest-any of which could have been fatal-and no defensive wounds; the television was turned on to The X-Files. They found a shotgun in defendant's room with a live shell in it, four expended shells (three in the victim's bedroom and one in the kitchen), and an open shell box with five missing. A partially empty 24-ounce beer can was found on the porch rail.

While in a patrol car defendant said "The bitch is dead," "I'm in deep shit. Oh well," and "I did what I wanted to do." He was calm, and although he smelled of alcohol he did not seem drunk. At jail he told an officer "I shot the bitch. She deserved it." He said he had a beer after he shot Smith.

During a recorded interrogation defendant said Smith "Pissed me off," but when asked "How long has it been building up for," he replied "Tonight." He knew Smith was called Scary Ellen but he rented a room from her because she did not bother him. He described her as a "Ding-a-ling."

Defendant told the officers that he shot Smith in her bed four times and then walked to a market to buy some beer. He said that she was dead after the first shot-though he later said he did not know-but "Don't ask me why I fired four shots. Don't ask me because I do not know." "I fired that first shot and I said, Jack, you've done it. I said, fuck it .... I fired three more." "I don't want somebody [to] say well it was premeditated. Well, I was just pissed, man. I was thinking about it. How do you know.... I mean look, how you gonna ... how you gonna accommodate that thought that I'm gonna kill that bitch? Okay? How you gonna accommodate that thought and-and really do it?" Later he said, "The bitch is ... the wicked witch is dead! Okay? I can't answer these questions because I don't know."

Bayles testified that he never saw Smith's poor conduct, but had heard from defendant that she was unstable and would be friendly and then abruptly nasty, such as telling defendant to "get the fuck out of the house[.]" Defendant told Bayles that Smith's constant behavior wore him down and he could not put up with it any longer. Schuster confirmed that defendant was upset because of a dispute about recyclable cans which Smith claimed were hers, and Smith's complaints about the toaster.

Kevin Hubert had been Smith's boyfriend in the recent past and had lived with her for nearly four years. He testified she had mood swings and erupted into violent tirades; she was verbally abusive and demeaning, and accused Hubert of being dirty and a slob around the house.

Defendant's girlfriend testified he told her Smith could be happy and then down, was impatient, and said he was dirty and a pig, which made him feel upset, belittled and angry, so he was trying to save money to move out. She spoke to him by telephone before and after he killed Smith. He first said that Smith had told him he would have to move out, even though his rent was paid through the end of the month, and he could commit a crime to get room and board and should shoot Smith in the "butt." In the last call he said he shot Smith because she ran him down and he could not stand it.

Bayles testified defendant talked to himself and might be getting senile; defendant's girlfriend had heard him talking to himself and repeating himself.

A blood sample taken from defendant at about 12:30 a.m. at the jail showed a blood alcohol level of .11; an expert opined his level would have been around .16 or .17 at around 9:15 p.m., assuming he had only one beer after that time. The expert testified ...


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