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Lennard Edward Vaughn v. Tim v. Virga

September 28, 2011

LENNARD EDWARD VAUGHN, PETITIONER,
v.
TIM V. VIRGA, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Vaughn, a state prisoner, proceeds pro se with a second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is Vaughn's conviction for bringing marijuana into a state prison, case 04F10822 in the Sacramento County Superior Court, for which he was sentenced to a term of 25 years to life.

II. BACKGROUND*fn1

Vaughn, an inmate, was caught with marijuana in the visiting room at California State Prison, Sacramento. Before entering the visiting room, inmates undergo an unclothed full body search. Visitors enter through a separate room and must empty their pockets and go through a metal detector.

Contact between visitors and inmates is restricted except for a brief hug and kiss at the beginning and end of the visit. A visitor is also allowed to have a Polaroid photograph taken with the inmate for purchase.

The visiting room has vending machines from which the visitor may purchase items for the inmate. Inmates may not use the machines, which are placed outside a red line marking the room's boundary for inmates.

On September 5, 2004, Officer Lewis's attention was drawn to Vaughn, who was having his photograph taken with Janice DiFatta, a visitor. Vaughn had his left hand down the back of his pants, which led Officer Lewis to suspect drug smuggling.

After making eye contact with Officer Lewis, Vaughn wrapped both hands around DiFatta's waist. Officer Lewis notified his partner and approached Vaughn, who had finished his photograph and had a bag of chips in his left hand when Officer Lewis arrived. Officer Lewis escorted Vaughn into the search room and began to search him. Vaughn started gagging and coughed up a blue balloon the size of a golf ball, which he handed to Officer Lewis. The balloon was wrapped around another balloon containing 5.66 grams of marijuana wrapped in plastic wrap.

Vaughn executed a Miranda waiver and was interrogated. Told he was suspected of possessing marijuana, he replied: "What can I say? They found it on me." Vaughn claimed to have found it in the dispensing tray of a vending machine. He denied any involvement on DiFatta's part and said he was not afraid of taking another inmate's marijuana.

The visiting room was subject to video surveillance. Although there was a problem with the time and date stamping from the cameras, a tape of the visit was verified by Officer Lewis and played to the jury. Vaughn and DiFatta were seen in line waiting for their photo to be taken. The video showed the DiFatta by herself numerous times, including when she was next to the vending machines.

The line for the photographs was in front of the vending machine. At one point, while standing in line for the picture, Vaughn went over the red boundary line.

According to a former narcotics detective, a small amount of marijuana like what Vaughn possessed was very valuable inside prison. Taking another prisoner's drugs by theft or subterfuge would likely result in an attack on the prisoner who took them. A visitor can bring drugs into prison on visiting day and transfer them to a prisoner in various ways, such as by kissing or by placing a balloon containing the drug in a bag of chips and having the prisoner swallow it.

On this evidence, a jury convicted Vaughn of bringing marijuana into a state prison (count 1) and possession of marijuana while in prison (count 2). The jury also found true allegations that he previously suffered six prior serious felony convictions within the meaning of California's habitual criminals, or "three strikes" law (see Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)), resulting in imposition of a life sentence.

Vaughn appealed his conviction on count 1 to the California Court of Appeal, Third District, where the judgment was affirmed. A petition for review to the California Supreme Court was denied.

III. GROUNDS FOR RELIEF

Vaughn challenges his conviction on count 1, bringing marijuana into a state prison. He claims:

A. The prosecutor's argument suggested a legally incorrect theory of guilt to the jury; and

B. Insufficient evidence supported the conviction.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of ...


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