United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BUMS, UNITED STATES MAGISTRATE JUDGE.
HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT COURT:
Donnie Romone Twiggs, who is confined in the Arizona State
Prison Complex, filed an Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5).
Respondents filed a Limited Answer (Doc. 23), and Petitioner
filed a Reply (Doc. 4).
was convicted in Maricopa County Superior Court, case
#CR2012-009266, of three counts of possession or use of
narcotic drugs and two counts of possession of drug
paraphernalia, and was sentenced to a 10-year term of
Arizona Court of Appeals summarized the facts and evidence,
¶ 2 At about midnight on September 17, 2011, Twiggs fled
from the police when they attempted to stop him for not
having a fixed light on his bicycle. After stopping Twiggs,
one of the officers saw Twiggs throw something. The police
searched the route Twiggs had fled and discovered two baggies
of crack cocaine and a bottle of morphine pills.
Subsequently, a grand jury indicted Twiggs on one count of
possession of crack cocaine, one count of possession of
morphine, and one count of possession of drug paraphernalia,
specifically “bag(s) and/or pill bottle”
¶ 3 During trial, Twiggs moved to preclude admission of
the larger baggie of crack cocaine, arguing that although the
police had field-tested what was in the bag they had failed
to submit it to a laboratory for confirmation of the results.
The superior court precluded testimony on the nature of the
substance in the larger baggie.
¶ 4 Despite the prosecutor's attempts to limit the
testimony from an officer who had seized the larger baggie
but had not conducted the field testing, the officer
repeatedly referred to the contents as crack cocaine. As a
result, over the prosecutor's objection, the superior
court granted Twiggs' request for a mistrial. The
superior court noted, however, that “the record should
be abundantly clear that there was nothing that was done
wrong by the State, and I don't think there was any malus
[sic] from the officer.” At that time, the prosecutor
stated that in light of defense counsel's arguments,
which he expected would be renewed at the next trial, he was
going to have the baggie tested, and might file additional
¶ 5 The prosecutor subsequently obtained a new
indictment against Twiggs (“2012 case”). The
grand jury indicted Twiggs for a second count of possession
of crack cocaine and for a second count of possession of drug
paraphernalia, along with the original count of possession of
morphine, for a total of five counts, instead of three. On
the State's motion, the court then dismissed the 2011
case without prejudice. The prosecutor also filed an
additional allegation of aggravating circumstances other than
prior convictions, that is, “indicia of sale.”
State v. Twiggs, 2014 WL 6778881 (Ariz.Ct.App.
December 2, 2014).
jury subsequently found Petitioner guilty on all charges. The
court held a trial regarding Petitioner's prior
convictions on March 22, 2013, and Petitioner was sentenced
on April 16, 2013. (Exhs. H, I.)
timely appealed his convictions and sentences arguing the
following issues: (1) “Did the trial court err when it
failed to dismiss the indictment for prosecutorial
misconduct?” and (2) “Was Mr. Twiggs'
constitutional right to have every element of his offense
determined by a jury beyond a reasonable doubt
violated?” (Exh. J.) After the State responded and
Petitioner replied, the Arizona Court of Appeals issued a
memorandum decision affirming Petitioner's convictions
and sentences on December 2, 2014. (Exhs. K, L, M.)
Arizona Supreme Court denied Petitioner's petition for
review on May 6, 2015, (Exhs. N, O), and the Arizona Court of