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Twiggs v. Ryan

United States District Court, D. Arizona

January 29, 2019

Donnie Romone Twiggs, Petitioner,
v.
Charles Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          MICHELLE H. BUMS, UNITED STATES MAGISTRATE JUDGE.

         TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT COURT:

         Petitioner 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).[1]

         BACKGROUND

         Petitioner 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 imprisonment.

         The Arizona Court of Appeals summarized the facts and evidence, as follows:

¶ 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” (“2011 case”).
¶ 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 charges.
¶ 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).

         The 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.)

         Petitioner 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.)

         The Arizona Supreme Court denied Petitioner's petition for review on May 6, 2015, (Exhs. N, O), and the Arizona Court of ...


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