Date: 02-08-1996

Case Style: State of Oklahoma v. Sedrick Ramon Courtney

Case Number: CF-1995-2348

Judge: E.R. Ned Turnbull and William C. Kellough

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Mark Collier, Tim Harris and Jimmy Dunn

Defendant's Attorney: Jack Winn, Richard O'Carroll and Craig Cooley

Description: Tulsa County, OK - The State of Oklahoma charged Sedrick Ramon Courtney with:

Count # 1.
Count as Filed: , ROBBERY WITH FIREARM (S)/FELONY AFCF , in violation of 21 O.S. 0801
Date Of Offense: 04/06/1995

Party Name: Disposition Information:

Defendant: COURTNEY, SEDRICK RAMON
Disposed: CONVICTION, 02/16/1996. Jury Trial.
Count as Disposed:ROBBERY/ATTEMPT WITH DANGEROUS WEAPON (MF: ROBBERY WITH FIREARM (S)/FELONY AFCF) **VACATED 9-27-2012** (RBDW)
Violation of 21 O.S. 801

Defendant: COURTNEY, SEDRICK RAMON
Disposed: DISMISSED, 09/27/2012. Dismissed- Request of the State.
Count as Disposed:ROBBERY/ATTEMPT WITH DANGEROUS WEAPON (MF: ROBBERY WITH FIREARM (S)/FELONY AFCF) (RBDW)
Violation of 21 O.S. 801

Count # 2.
Count as Filed: , BURGLARY FIRST DEGREE/FELONY/AFCF , in violation of 21 O.S. 1431
Date Of Offense: 04/06/1995

Party Name: Disposition Information:

COURTNEY, SEDRICK RAMON
Disposed: CONVICTION, 02/16/1996. Jury Trial.
Count as Disposed:BURGLARY FIRST DEGREE/FELONY/AFCF **VACATED 9-27-2012**
Violation of 21 O.S. 1431

COURTNEY, SEDRICK RAMON
Disposed: DISMISSED, 09/27/2012. Dismissed- Request of the State.
Count as Disposed:BURGLARY FIRST DEGREE/FELONY/AFCF
Violation of 21 O.S. 1431

Petitioner’s Post-Conviction Relief Petition (22 Old. St. § 1080) and Writ of Habeas Corpus
(12 Ok). St. § 1331, OkIa. Const. art. H, § 10) Based On Newly-Discovered Exculpatory, Non-Matching DNA Evidence

1. Petitioner, Sedrick Courtney, hereby submits his Post-Conviction Relief Petition and
Writ of Habeas Corpus Based On Newly-Discovered Exculpatory, Non-Matching DNA Evidence.
His motion is presented in good faith and premised on the following facts and points of
authority.
2. Courtney stands convicted of the April 6, 1995 armed robbery of Shemita Greer.
a. Two men, who covered their faces with ski masks, kicked in Greer’s apartment
door, attacked her, and robbed her at gunpoint.
b. (freer suffered a traumatic brain injury as a result of the attack.
c. (freer was positive that the taller assailant, who wore the black ski mask, was
Courtney Sedriek. Greer said she recognized his voice when he spoke and his skin tone and eyes
when he briefly lifted his black ski mask during the offense.
i. Greer knew Courtney because the two had lived in the same apartment complex a year before.
ii. Greer also knew Courtney because her and her boyfriend, Travis Chambers,
went on a few double dates with Courtney and his girlfriend before the robbery.
d. Greer said the smaller assailant wore a green ski mask.
e. Crime scene perscnmel recovered the black and green ski mask outside Greer’s
apartment.

3. Prior to trial, the State recovered several hairs from both the black and green ski masks and subjected them to DNA testing, but the testing produced no results.
a. Neither the State nor Courtney subjected the hairs to mitoehondrial DNA testing because it was not available at the time of trial and did not become generally accepted and routinely used in the scientific community until 1998 and 1999.
4. At trial, the State relied on the hair evidence to secure Courtney’s conviction.
a. The State argued that the hairs from the black ski mask could have come from Courtney because he could not be eliminated as a donor of the hairs.
b. The green ski mask contained a single bleached red hair that was microscopically similar to a bleached red hair taken from Courtney’s head hair. The State argued it was very unlikely that the bleached red hair came from anyone other than Courtney.
5. Courtney challenged and collaterally attacked his conviction, but obtained no relief.
a. In 2000, Courtney’s previous attorney (from the Oklahoma Indigent Defense System) sought DNA testing on the hairs recovered from both ski masks, but the Tulsa Police Department (TPD) informed counsel that the hairs had been destroyed.
6. In 2001, Courtney contacted the Imiocence Project, which officially opened his case in late 2007. Shortly thereafter, the Innocence Project contacted the TPD, requesting information regarding the whereabouts of the black and green ski masks as well as the hairs recovered from the two ski masks.
a. The TPD informed the Innocence Project that the masks and hairs had been destroyed.
7. In September 2011, the Innocence Project contacted the TPD again to inquire about the ski masks and hairs, but this time the TPD said it did in fact have custody of the hairs. The TPD did not have the ski masks.
a. Shortly thereafter, the TPD sent the hairs to Orchid Cellmark (Ceilmark) in Dallas.
b. Ceilmark subjected the hairs recovered from the black and green ski masks to mitochondrial DNA testing — a form of DNA testing not available prior to trial.
c. The mitochondrial DNA testing excluded Courtney as a donor of ten hairs recovered from the black ski mask and five hairs recovered from the green ski mask.
i. Nine of the ten hairs from the black ski mask came from one donor.
ii. Four of the five hairs from the green ski mask came from one donor.
8. Based on these newly-discovered exculpatory DNA results, Courtney respectfiully moves to have his conviction vacated because the DNA results demonstrate that he is actually innocent (at best) or that this Court can have no confidence in his conviction (at worst).
I. Statement of Facts
A. Pre-Trial Events
9. In February 1996, a Tulsa County jury convicted Sedrick Courtney of robbery with a fireami and first-degree burglary for the April 6, 1995 robbery of Shemita Greer. The trial judge sentenced him to thirty years in prison.
10. According to Greer, around noon time on April 6, 1995, two men wearing ski masks broke into her apartment by kicking in her front door.
a. The shorter of the two men had on a green ski mask and wielded a gun, while the taller assailant had on a black ski mask.’
b. The taller man in the black ski mask — who Greer identified as Sedrick Courtney — was not wearing gloves.2
c. Once inside, they forced her to lie on the floor as they ransacked the apartment. During the robbery, the two assailants struck Greer in the head, repeatedly kicked her, and ultimately blindfolded her with duct tape.3
d. Once blindfolded, Greer said the taller of the two assailants pistol-whipped her.4
e. Seriously injured and fearing for her life as well as her four-month-old niece’s life, Greer played dead as the two assailants continued to ransack her apartment.
f. When the two assailants fled Greer’s apartment they took nearly $400 in cash from her purse, four tires, and four tire rims that belonged to her boyfriend, Travis Chambers.5
11. Greer said the incident lasted between five and six minutes.6
12. After checking on her four-month-old niece, Greer called 911 and Tulsa police officers were dispatched to the scene. After talking with police, Greer was taken to a hospital where she spent three days recovering from a traumatic brain injury.7
13. Detective Alvin McDonald arrived at the scene and interviewed Greer who told him she recognized the taller of the two men wearing the black ski mask as Sedrick Courtney.8 She recognized his voice because she knew Courtney’s girlfriend and her (Greer) and her boyfriend occasionally went out with Courtney and his girlfriend.9 Likewise, when the taller assailant lifted his black ski mask to cool down, Greer said she saw his eyes, nose, and skin tone and was positive it was Sedrick Courtney.’°
14. Detective Doug Noordyke photographed and piocessed Greer’ s apartment as well as the area surrounding around her apartment.”
a. Detective Noordkye search for latent fingerprints and lifted one from the stereo cabinet.’2
b. He also recovered a black ski mask from the sidewalk east of Greer’s apartment and a green ski mask across the street from her apartment sitting atop the tires stolen during the robbery.’3
15. Despite Greer’s positive identification of Courtney on April 6, 1995, the TPD did not arrest Courtney until June 12, 1995.14 The shorter assailant, who wore the green ski mask was never identified, arrested, and prosecuted.
16. Although Courtney proclaimed his innocence when arrested, he cooperated with the TPD by waiving his Miranda rights and voluntarily providing samples of his hair.’5
17. Prior to Courtney’s arrest, the TPD Forensic Laboratory recovered several hairs from the black and green ski masks.’6
18. Prior to trial, the TPD Forensic Laboratory sent the hairs to the Oklahoma State Bureau of Investigation (OSBI) for DNA testing.’7
a. Seven hairs had roots so OSBI subjected the roots to nuclear DNA testing — which produced inconclusive results.’8
b. OSBI did not perform mitochondrial DNA analysis on the hair shafts because mitochondrial DNA testing was not available prior to Courtney’s trial in February 1996.
19. Prior to trial, the TPD Forensic Laboratory concluded that Courtney did not leave the latent fingerprint on the stereo cabinet in Greer’ s apartment.’9
20, Prior to trial, Carol Cox of the TPD Forensic Laboratory attempted to compare the hairs lifted from the black and green ski masks to Courtney’s hair samples, but could not make a comparison because Courtney’s hair samples were too short?° As a result, she concluded that the unknown head hears from the black ski mask “can not [sic] be eliminated as having come from Cedric [sic] Courtney.”2’
21. Cox also recovered a single bleached red hair from the green ski mask that was microscopically consistent with a bleached red hair taken from Courtney’s head.22
B. Trial
22. Courtney pled not guilty and went to trial.
23. At trial, the State’s case rested primarily on Greer’ s identification of Courtney.
a. During direct examination, the prosecutor asked Greer, “Ma’ am, do you realize that this case is largely dependent on your identification of Mr. Courtney today?,” to which Greer replied, “Yes.”23 The prosecutor then asked Greer, “Do you know what will happen to you if this jury believes your ident4fication?,” to which Greer ultimately replied, “I feel like justice will be served.”24
b. Greer was “positive” that Courtney was the taller of the two assailants who wore the black ski mask.25
c. Greer also positively identified the black ski mask recovered from outside her apartment as the black ski mask worn by Courtney.26
d. During closing arguments, the prosecutor urged to jury to find Greer’s identification reliable.27 The prosecutor said it was “impossible” that Courtney was not one of the assailants:
I believe that if you go back there and you consider all that, you’ll find it’s impossible for that to have been someone other than Sedrick Courtney, same height, same size, same build. That’s beyond fosSibilitY that another human being could match all of those characteristics.
e. The prosecutor also argued: “All we know is that there are two people who entered that apartment, two people who wore stocking masks. And we know that Sedrick Courtney was one of those two people.”29
24. The prosecutor used the hair evidence from the black and green ski masks to bolster Greer’s identification.
a. During closing arguments, the prosecutor acknowledged that the hair evidence was critical to the State: “The hair in the stocking mask. Now, this is some key evidence really.”30
b, The State’s hair expert, Carol Cox, said she could not exclude Courtney as a donor of the hairs recovered from the black ski mask.3’
i. Cox, however, undermined Greer’s claim that Courtney was the assailant wearing the black ski mask when she said she identified a single bleached red hair from the green ski mask that was microscopically consistent with a bleached red head hair recovered from Courtney.32
ii., Realizing Cox ‘ s testimony undermined Greer’ s identification, the prosecutor argued during closing arguments that (leer may have “mixed up” who wore what ski mask:
But the key here that Carol Cox did testify to is she said there was something unusual [regarding the bleach hair]. In... [the green] mask[1 she found a short bleached red hair, one short bleached red hair among numerous Negroid hairs, okay. And then she testified that she plucked approximately 50 hairs from Sedrick Courtney’s head, and of those 50 hairs she found one short bleached red hair, okay.
Now, I think probably the defense is going to point out to you... that she testified [Greer] testified he was wearing the black stocking mask and that Carol Cox testified that the red hair was found in the green stocking mask. I can’t deny that. That’s true. There are numerous explanations for that... It’s entirely possible that.... She got those two stocking masks mixed up.33
iii. The prosecutor also suggested that Courtney may have owned both ski masks or that the unnamed and unidentified co-assailant may have lived with Courtney:
But another very plausible explanation... is that the person he was with may
have been somebody he lived with, that both stocking masks may have been
[Sedrick Courtney’s]. He may have worn both of those stocking masks on any number of occasions prior to that day. So there is a lot of reasons why that red
hair may be in the... green stocking mask rather than the black stocking mask.
Again, [Sedrick Courtney] could have worn that green stocking mask just the night before.34
iv. Likewise, the prosecutor argued that the red bleached hair likely came from Courtney because it was “very unusual to find one red bleached hair among numerous Negroid hairs both in a stocking mask and on the defendant’s head.”35
25. Courtney testified and claimed his innocence,36
a. He argued that Greer misidentified him as the assailant in the black ski mask.37
b. He also presented three alibi witnesses, who claimed he was with them between
noon and 1 pm on April 6, 1995 — the time during which the offense occurred.38
26. On February 8, 1996, a Tulsa County jury convicted Courtney of robbery with a firearm and first-degree burglary. The trial judge sentenced him to thirty years in prison.39
II. Post-Conviction Proceedings
27. Courtney has unsuccessfully challenged and collaterally attacked his conviction over
the last sixteen years.
28. In 2000, Courtney’s previous attorney (from the Oklahoma Indigent Defense System)
sought DNA testing on the hairs recovered from both ski masks, but the Tulsa Police Department (TPD) informed counsel that the hairs had been destroyed.4°
29. On April 23, 2001, Courtney contacted the Innocence Project requesting assistance in
obtaining DNA testing to prove his innocence. After obtaining documents and transcripts and reviewing Courtney’s case, the Innocence Project officially accepted Courtney’s case on
February 5, 2007.
30. On August 17, 2007, undersigned counsel sent a letter to the TPD requesting an evidence search for the following items of evidence collected in relation to Greer’s robbery and stored under property receipt number AF- 1482:
a. Piece of gray duet tape;
b. Black ski mask;
i. Six slides with hairs and/or fibers mounted from black ski mask; c. Green ski mask;
i. Six slides with hairs and/or fibers mounted from green ski mask,41
31. In early 2008, the TPD informed undersigned counsel that the aforementioned evidenced had been destroyed. The TPD, however, did not produce official documentation identiing when the evidence was destroyed, who authorized its destruction, and under what authority was the destruction authorized.
32. In September 2011, the Innocence Project — on a whim — contacted the TPD once more to inquire whether it had the aforementioned evidence. On September 15, 2011, the TPD informed the Innocence Project it still had the hair slides from the black and green ski masks.
33. Once located, the TPD agreed to send the hair slides to Orchid Cellmark (Cellmark) in Dallas, Texas for DNA testing.42
34. On September 22, 2011, Cellmark received the hair slides from the TPD.
a. Celimark subjected 10 hairs from the black ski mask to mitochondrial DNA testing, which, as mentioned, was not available when the State prosecuted Courtney.
i. The mitochondrial DNA results excluded Courtney from all 10 hairs lifled from the black ski mask.43
ii. More importantly, 9 of the 10 hairs originatedfrom the same donor!”
b. Cellmark subjected 5 hairs from the reen ski mask to mitochondrial DNA testing, including the single bleached red hair that was microscopically consistent with one of Courtney’s hair samples that the State argued most likely came from Courtney.45
i. The mitochondrial DNA results excluded Courtney from all 5 hairs, including the single bleached red hair.
ii. More importantly, 4 of the 5 hairs originatedfrom the same donor.
e. Ceilmark issued its official report on February 24, 2012 and undersigned counsel received notice of the report (via email) on February 28, 2012.
35. Courtney’s instant petition is based on the exculpatory DNA results from the black and green ski masks.
a. The mitochondrial DNA results from the black ski mask conclusively demonstrate Courtney was not the assailant wearing the black ski mask.
b. The mitochondrial DNA results from the green ski mask also conclusively demonstrate that he was not the donor of the bleached red hair or the assailant wearing the green ski mask,
e. Individually and collectively, the exculpatory mitochondrial DNA results conclusively establish Courtney’s innocence (at best) and undermine all confidence in his conviction (at worst). Under either scenario, Courtney is entitled to the immediate relief of having his conviction vacated and a new trial ordered.
III. Arguments
A. Courtney Is Entitled To Post-Conviction Relief Because The Newly- Discovered Exculpatory DNA Evidence Conclusively Establishes His Innocence And Undermines All Confidence In His Conviction
36. Courtney’s instant petition is properly filed under the Post-Conviction Procedure Act, see 22 Okl, St. § 1080, because (1) his conviction and sentence are in violation of the U.S. Constitution and Oklahoma state law and (2) there are new “material facts” — not previously presented and heard — that requires vacation of his conviction and sentence in the interest of justice.
37. Greer was adamant that Courtney wore the black ski mask,47 while the prosecutor argued that Courtney may have worn or owned the green ski mask because of the bleached red hair recovered from it that microscopically matched one of Courtney’s hair samples.48
38. The exculpatory DNA results from the black and green ski masks, however, conclusively prove that Courtney is innocent because he cannot be the individual who wore the black ski mask or the green ski mask.
39. The exculpatory DNA results also undermine all confidence in Courtney’s convictions, meaning his conviction must be vacated and a new trial ordered “in the interest of justice.” 22 OH. St. § 1080(d).
40.
1. Courtney’s Conviction Rests On Greer’s Identification And The Hair Evidence Recovered From The Black And Green Ski Masks
41. The State’s case against Courtney rested primarily on Greer’s identification. During direct examination, the prosecutor asked Greer, “Ma’am, do you realize that this case is largely dependent on your identifIcation of Mr. Courtney today?,” to which Greer replied, “Yes.’49
a. At trial, Greer was “positive” that Courtney was the taller assailant who wore the black ski mask.5°
b. Greer said she recognized Courtney’s voice because she used to live in the same apartment complex as him, and her and her boyfriend, Travis Chambers, used to double-date with Courtney and his girlfriend)”
c. Greer also said that when the taller assailant lifted the base of his black ski mask up to his eye lids she recognized Courtney’s skin tone and the bag under his eyes. 52
d. During closing arguments, the prosecutor hammered home why Greer’s identification was reliable — at one point arguing that it was “impossible” for Greer to have misidentified Courtney.53 The prosecutor also argued that Greer was “100 percent positive that it was Sedrick Courtney’s voice,”54 -
42. The State’s case also rested significantly on the hair evidence recovered from the black and green ski masks.
a. During closing arguments, the prosecutor achowledged that the hair evidence was critical to the State case: “The hair in the stocking mask, Now, this is some key evidence really.”55
b. Carol Cox, the State’s hair expert, said that Courtney could not be excluded from the black ski mask hairs.
c. Cox, moreover, identified a bleached red hair from the green ski mask that was microscopically similar to a head hair sample voluntarily provided by Courtney.56
i. During closing arguments the prosecutor seized on this fact to argue that Courtney either owned the green ski mask or that Courtney’s (unidentified) co-assailant may have lived with him before Greer’ s robbery and that Courtney may have worn the green ski mask sometime before the robbery.57
ii. The prosecutor also argued it was unlikely that anyone other than Courtney had the “same unusual red hair[.]”58
2. Voice Identification, Eyewitness Identification, and Hair Identification Are Notoriously Unreliable, Particularly When The Facts In This Case Are Present
43. The evidence used against Courtney is fraught with reliability issues.
a, To begin with, voice identifications “involve grave danger of prejudice” to defendants. Biggers v. Tennessee, 390 U.S. 404, 408 (1968) (Douglas, I., dissenting). This is especially true when the person making the voice identification is physically assaulted, pistol- whipped in the head, repeatedly kicked, threatened with her life, blindfolded with duck tape, and suffers a traumatic brain injury as a result of her assault.
b. Eyewitness identifications !are also wrought with reliability issues. To date, 289 prisoners have been exonerated with post-conviction DNA testing, See www.innocenceprojcct.org (last visited March 1, 2012). Of these 289 exonerations, 70% involved eyewitness misidentification. See id.
i. The unreliability of a witness’s identification increases significantly when the witness is the actual victim, who is physically assaulted, pistol-whipped in the head, repeatedly kicked, threatened with her life, blindfolded with duck tape, and who suffers a traumatic brain injury as a result of her assault.
ii. Greer said she suffered a traumatic brain injury and that she lost “a lot of brian tissue” as a result of being punched, kicked, and pistol-whipped in the head: “I was traumatized to the brain, and I still have a scar. I lost a lot of brain tissue.”59
iii. Greer also said she nearly bled to death as a result of her injuries.60
iv. Greer also testified that she did not see Courtney’s entire face, but only from his chin to his eyes — but not his eye brows: “I couldn’t see the eyebrow part[.1”61
v. Greer, moreover, said that when the assailants duct taped her eyes, she could see nothing because her eyes had filled with blood.62
vi. Greer’s brain injuries were so severe she spent three days in the hospital recovering.63
vii. Greer also said that the trauma she suffered prevented her from recalling how long she played dead for after the assailants left her apartment: “It was a while. I mean the trauma that I went through, I’m just estimating. I don’t know exactly how long I was laying there.M
c. Hair identification is one of the most unreliable forensic identification techniques,
see BRANDON GARRETT, CONVICTING THE INNOCENT: WHrn CRIMINAL PROSECUTIONS Go WRONG 98 (2011) (noting that the DNA exoneration cases “provide a large body of examples of just how unreliable hair comparison can be in practice.”), and Okiahomans know this all too well because hair misidentifications played a role in Timothy Durham’s wrongful conviction (from Tulsa),65 Calvin Lee Scoff’s wrongful conviction (from Tulsa),66 Ron Williamson’s wrongful conviction (from Ada),67 Dennis Fritz’s wrongful conviction (from Ada),68 Jeffery Pierce’s wrongful conviction (from Oklahoma City),69 David Johns Bryson’s wrongful conviction (from Oklahoma City),7° Curtis McCarty’s wrongful conviction (from Oklahoma City),7’ Robert Miller’s wrongful conviction (from Oklahoma City),72 and Thomas Webb’s wrongful conviction (from Oklahoma City).73
3. Credibility Or Believability Where The Critical Issues Before the Jury
44. When the prosecutor questioned Greer, he revealed the critical issue before the jury:
“Do you know what will happen to you if this jury believes your identjfication?,” to which Greer ultimately replied, “I feel like justice will be served.”74 The critical issue before the jury, therefore, was whether it believed Greer’ s identification, i.e., whether it found her identification reliable, How the jury viewed Greer’s identification, thrthermore, would have impacted its assessment of Courtney’s alibi defense. If the jury found Greer’s identification reliable (or credible), it undoubtedly would have found Courtney’s alibi defense incredible and, presumably, a fabrication. Moreover, if the jury believed that Courtney fabricated his alibi defense they also, presumably, would have considered him not only a violent thug, but also a remorseless psychopath who forced his family members to lie on his behalf in an attempt to subvert the criminal process. In short, if the jury found Greer’s identification believable (or reliable), such a finding substantially undercut and prejudiced Courtney’s defense at trial.
45. The prosecutor’s assessment of the critical issue is consistent with the U.S. Supreme Court’s assessment. According to the U.S. Supreme Court, the “only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence.” Watkins v. Sowders, 449 U.S. 341, 347 (1981) (emphasis in original); accord Ferry v. New Hampshire, 132 S.Ct. 716, 723 (2012) (holding that “state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial.”); Kansas v. Ventris, 556 U. S. 586, 594, n. (2009) (“Our legal system... is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses.”).
46. At trial, Courtney’s attorney tried to diligently expose, through cross-examination and argument to the jury, factors that called into question the reliability of Greer’s identifications.75
47. Trial counsel, however, did not have “contrary evidence,” see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (observing that “vigorous crossexamination, [andj presentation of contrary evidence.., are the traditional and appropriate means of attacking shaky but admissible evidence.”) (emphasis added), particularly contrary (and exculpatory) DNA evidence from the ski masks, to persuade the jury that Greer’s identification “should be discounted as unworthy of credit.” Perry v. New Hampshire, 132 S.Ct. at 723; District Attorney’s Office v. Osborne, 129 S.Ct. 2308, 2316 (2009) (“Modem DNA testing can provide powerful new evidence unlike anything known before.”).
48. Had the jury been informed that DNA testing on the hairs recovered from both the black and green ski masks not only excluded Courtney, but identified two dominant DNA profiles from both ski masks, these new facts would have not only altered the jury’s reliability assessment regarding Greer’s identifications and the State’s hair evidence, they would have also altered the jury’ s credibility assessment regarding Courtney’s alibi defense.
a. Jury instruction #17, for instance, instructed the jury on how it had to approach its task when considering Courtney’s alibi defense. According to the instruction, “If after careful consideration of all the evidence in this case the jury entertains a reasonable doubt... as to whether the defendant was in or at the place where the crime was alleged to have been committed when such crimes were committed, then that jury should give the benefit to the defendant.., and acquit him.”76 Thus, if the jury entertained a reasonable doubt, the jury was required by law to acquit Courtney. This is a lower standard of beyond a reasonable doubt.”
b. Consequently, if Courtney was in fact the perpetrator who wore the black ski mask, the jury could have reasonably expected to find his hair on the inside and outside of the black ski mask. If Courtney could not have contributed the hairs in or on the black ski mask, however, a properly-instructed jury could easily adhere to the following line of reasoning to acquit
Courtney:
i. The hairs from the black ski masks came from the assailant who wore the black ski mask when he (and his co-assailant) assaulted and robbed Greer on April 6, 1995.
ii. If DNA testing excluded Courtney as a potential contributor of the hairs in and on the black ski mask, Courtney cannot be the assailant who wore the black ski mask.
iii. If Courtney is not the assailant with the black ski mask, (leer’s identification must be incorrect, while Courtney’s alibi defense must be truthful.
iv. If (Ireer’s identification is wrong, and Courtney’s alibi is truthfiul, Courtney must be innocent.
v. Based on these findings, a properly-instructed jury may reasonably enter a judgment of acquittal in Courtney’s favor believing 100% in his innocence.
vi. This same reasoning applies to the green ski mask as well. If DNA testing excludes Courtney as a contributor of the hairs lifted from in and on the green ski mask, including the bleached red hair, this means he cannot be the assailant who wore the green mask.
c. A properly-instructed jury could also rely on a slightly different line of reasoning to reach a similar and reasonable conclusion.
i. Greer’s identification has reliability issues, e.g., she was physically assaulted, pistol-whipped in the head, repeatedly kicked, threatened with her life, blindfolded with duck tape, and suffered a traumatic brain injury. In the absence of exculpatory DNA evidence, however, these issues are inadequate to warrant an acquittal on Courtney’s behalf.
ii. In light of the exculpatory DNA evidence from the black and green ski masks, however, the aforementioned reliability concerns obtain new meaning and significance, increasing the jury’s belief that (freer’ s identification is unreliable, that Courtney’s alibi defense is truthful, and that Courtney should be acquitted.
iii. Thus, because the State’s case rests entirely on Greer’ s identification and the hair evidence, the doubt generated by the exculpatory DNA evidence and the reliability issues regarding Greer’s identification is adequate to warrant a judgment of acquittal, even if the jury is not 100% certain Courtney is innocent.
d. Consequently, there is a reasonable probability that had the newly-discovered exculpatory DNA evidence been presented to Courtney’s jury, the outcome of his trial would have been different, i.e., the jury would have acquitted him. In other words, the new exculpatory DNA evidence puts the State’s case “in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
e. Courtney, therefore, is entitled to have his conviction vacated and a new trial ordered in the interest ofjustice.
4. Courtney Diligently Pursued DNA Testing And For More Than a Decade The Tulsa Police Department Told Courtney And His Attorneys That The Physical Evidence Had Been Destroyed
49. Courtney diligently pursued DNA testing and developed the new facts that form the foundation of his instant petition and constitutional claims.
50. The delay in DNA testing can be directly attributed to the TPD.
a. In October 2000, Tulsa Police Officer R.M. Kurowski infonned Courtney’s prior counsel with the Oklahoma Indigent Defense System that the TPD destroyed the hair samples.78
b. On April 23, 2001, Courtney contacted the Innocence Project requesting assistance in obtaining DNA testing to prove his innocence. After obtaining documents and transcripts and reviewing Courtney’s case, the Innocence Project officially accepted Courtney’s case on February 5, 2007.
c. On August 17, 2007, undersigned counsel sent a letter to the TPD requesting the TPD to conduct an evidence search for the following items of evidence collected in relation to Greer’ s robbery and stored under property receipt number AF- 1482
d. In early 2008, the TPD informed undersigned counsel that the aforementioned evidenced had been destroyed.
e. In September 2011, when undersigned counsel was in the midst of closing Courtney’s case, he had his law student, Erik Wilson, contact the TPD one final time to see if it had located any of the sought-after physical evidence.
51. When the TPD informed undersigned counsel and Wilson that it had located the hair evidence, the TPD quickly agreed to send the hair evidence to Cellmark in Dallas, Texas. A September 16, 2011 memo to Sergeant Kim Presley memorializes Courtney’s quick efforts to have the hair evidence sent to Cellmark.81
52. Ceilmark, as mentioned, performed mitochondrial DNA testing, which was not available when the State prosecuted Courtney. Mitochondrial DNA testing did not become widely used and generally accepted until the late 1990s. See NAT’L INST. JUST., THE FUTURE OF FORENSIC DNA TESTING: PREDICTIONS OF THE RESEARCH AND DEVELOPMENT WOmUNG GROUP 18(2000).
53. Courtney, as a result, diligently developed the facts that give rise to his instant post- conviction petition, writ of habeas corpus, and state and federal constitutional claims.
B. Courtney’s Federal Constitutional Claims
1. The New Exculpatory, Non-Match DNA Results Demonstrate that
Courtney’s Conviction Is Premised On Unreliable Identification
Evidence In Violation of His Due Process flights. U.S. Const. Amends.
VI, XIV
54. The facts pled in all previous paragraphs are incorporated herein as if flilly pled.
55. The exculpatory DNA results render Courtney’s trial fundamentally unfair under the Sixth and Fourteenth Amendments. In the absence of exculpatory DNA results, Courtney did not have a meaningful opportunity to present a complete defense. See U.S. Const. Amends. VI,
XIV.
56. Whether “rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)) (emphasis added). Courtney, consequently, had a constitutional right to present a complete defense against Greer’ s identifications.
57. As the U.S. Supreme Court recently acknowledged, “The Constitution... protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Perry v. New Hampshire, 132 S.Ct. at 723 (emphasis added). For instance, under the Sixth Amendment, defendants are afforded the right to counsel, see Gideon v. Wainwright, 372 U. S. 335, 343-345 (1963), the right to compulsory process, see Taylor v. illinois, 484 U, S. 400, 408-409 (1988), and the right to confront and cross-examine witnesses. See Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713-14 (2011); Delaware v. Fensterer, 474 U. S. 15, 18-20 (1985). In regards to “shaky” testimony, like eyewitness testimony, the Supreme Court in Daubert emphasized that “[vjigorous cross- examination, presentation of contraty evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 596 (emphasis added); accord Rock v. Arkansas, 483 U.s. 44, 61(1987). “Apart from these guarantees,” however, “state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial.” Perry v. New Hampshire, 132 S.Ct. at 723.
58. Courtney exercised all three Sixth Amendment rights at his trial, particularly his rights to counsel and confrontation. Indeed, trial counsel cross-examined Grecr in an attempt to expose certain factors that presumably impacted her memory and perception in such a way to prevent her from accurately identi’ing Courtney as her assailant.82
59. That Courtney was able to freely exercise his Sixth Amendment rights to counsel and confrontation, however, does not mean he had an opportunity to present a “complete defense” or that his trial was ftmdainentally fair. Rather, the critical issue is whether Courtney had the requisite contrary evidence and technology to persuade the jury, through either argument or cross-examination, that Greer’s identification should be “discounted as unworthy of credit.” Perry v. New Hampshire, 132 S.Ct. at 723.
60. Courtney did not because he did not have access to the requisite contrary evidence, namely, the exculpatory DNA results from the ski mask hairs. Had Courtney had access to this contrary evidence and technology, trial counsel’s cross-examination of Greer, as well as his closing arguments to the jury, would have most certainly persuaded the jury to discount her identification as untrustworthy, which in turn would have resulted in Courtney’s acquittal. Thus, had Courtney had access to this contrary evidence and technology, there is a reasonable probability of a different outcome. In other words, in the absence of this contrary evidence, Courtney’s conviction is worthy of no confidence because the new DNA results put the State’s case in an entirely different light.
61. Courtney’s case, in many ways, is analogous to the U.S. Supreme Court’s Brady eases, In a typical Brady-type case, the State withholds (either purposefully or inadvertently) material evidence (either exculpatory or impeachment) that prejudices the defendant in one or several ways rendering his verdict worthy of no confidence. See Smith v. Cain, 132 S.Ct. 627, 629 (2012) (“A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to ‘undermine[] confidence in the outcome of the trial.”) (quoting Kyles v. Whitley, 514 U. S. at 434), The primary prejudice in Brady cases stem from the defendant’s inability to present a “complete” defense. In other words, although the defendant had effective trial counsel who compelled witnesses to testif on his behalf and cross-examined the State’s witnesses, in the absence of the undisclosed evidence, the defendant’s right to confrontation, cross-examination, and compulsory process was not “complete.”
62. A prime example is from the U.S. Supreme Court’s most recent Brady case in Smith v. Cain, 132 S.Ct. 627 (2012). In Smith, Louisiana charged Smith with killing five people during an armed robbery. At Smith’s trial, a single witness, Larry Boatner, linked Smith to the crime. Boatner testified that “he was socializing at a friend’s house when Smith and two other gunmen entered the home, demanded money and drugs, and shortly thereafter began shooting, resulting in the death of five of Boatner’s friends.” Id. at 629. At Smith’s trial, Boatner identified Smith as the first gunman to come through the door. He claimed that he had been face to face with Smith during the initial moments of the robbery. No other witnesses and no physical evidence implicated Smith in the crime. See id. at 630 (“Boatner’s testimony was the only evidence linking Smith to the crime.”) (emphasis in original).
63. When Smith sought post-conviction reliet he obtained police files that were not disclosed prior to trial, including those of lead investigator John Ronquillo. Ronquillo’s s notes “contain[edl statements by Boatner that conflict[ed] with his testimony identifying Smith as a perpetrator.” Id. at 629, The “notes from the night of the murder state[dj that Boatner ‘could not... supply a description of the perpetrators other then [sic] they were black males.” Id. Ronquillo also made a handwritten account of a conversation he had with Boatner five days after the crime, in which Boatner said he “could not ID anyone because [he] couldn’t see faces’ and ‘would not know them if [he] saw them.” Id. And Ronquillo’s typewritten report of that conversation states that Boatner told Ronquillo he “could not identi’ any of the perpetrators of the murder,” Id.
64. Although Smith exercised his Sixth Amendment right to counsel, and his trial counsel confronted and cross-examined Boatner and Detective Ronquillo at trial, the Supreme Court nonetheless vacated his conviction, finding that the undisclosed reports undermined all confidence in Smith’s conviction. See Id. at 631. The lack of confidence in Smith’s conviction, more importantly, is directly related to Smith’s inability to present a “complete” defense at trial. Indeed, had trial counsel had access to Ronquillo ‘ s reports, his cross-examination of Boatner and Ronquillo would have significantly undermined their credibility and the State’s case, making it reasonably probable the jury would have acquitted Smith had it been privy to the undisclosed “contrary evidence.” Daubert v. Merrel? Dow Pharmaceuticals, Inc., 509 U.S. at 596. Similarly, the undisclosed reports may have led to additional witnesses that trial counsel could have compelled to testify under the Compulsory Process Clause — that would have undermined the State’s case even more. In other words, having access to the undisclosed, “contrary evidence” would have enabled Smith’s trial counsel to present a “complete” defense as envisioned by the Sixth and Fourteenth Amendments.
65. In the end, the U.S. Supreme Court articulated its rule in Brady not to deter prosecutorial misconduct, cf Stone v. Powell, 428 U.S. 465,484 (1976) (recognizing that the Fourth Amendment’s exclusionary rule is specifically aimed at deterring police misconduct, and not at enhancing the truth-seeking function of the trial),83 but to ensure that a miscarriage of justice does not occur. See United States v. Bagley, 473 U.S. 667, 675 (1985); Cal jfornia v. Trombetta, 467 U.S. 479, 485 (1984). From the Supreme Court’s perspective, the best way to guarantee fair and accurate convictions is to make certain that criminal defendants have a meaningful opportunity to present a “complete defense” and the only way to present a “complete” defense is to have full disclosure and access to all material facts and contrary evidence:
The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated jfjudgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts[.J
United States v. Nixon, 418 U.S. 683, 709 (1974) (emphasis added); accord United States v. Nobles, 422 U.S. 225, 230 (1975).
66. In Courtney’s case, we have an analogous situation. In Smith, the petitioner obtained newly-discovered evidence in post-conviction proceedings that the prosecution withheld prior to trial. Here, Courtney obtained newly-discovered evidence in post-conviction proceedings that was withheld from him, not because of prosecutorial wrongdoing, but because science did not advance quickly enough. The type of DNA testing used to reveal the DNA profile on the ski mask hairs, mitochondrial DNA testing, was not available at the time of Courtney’s trial in 1996 and only became generally accepted and routinely used in the scientific community in the late 1990s.
67. Like the undisclosed, contrary evidence in Smith and other Brady eases, the new contrary and exculpatory DNA evidence demonstrates that Courtney did not have a meaningful opportunity to present a “complete defense” and that his conviction is worthy of no confidence because, at this point, it is based on a “partial... presentation of the facts.” United States v. Nixon, 418 U.S. at 709, and the new DNA results put the State’s case in an entirely different light
68. Again, the U.S. Supreme Court’s comment in Daubert, that the “appropriate” way to attack “shaky but admissible evidence” is to present “contrary evidence,” 509 U.S. at 596, cannot be overemphasized. Here, the contrary (scientific) evidence needed to present a complete defense was not available until well after Courtney’s conviction. The new contrary (scientific) evidence, however, will finally allow Courtney to present a “complete” defense and meaningfully argue to a jury that Greer’s identification is worthy of no credit and that there is sufficient doubt to enter a judgment of acquittal in Courtney’s favor.
69. Likewise, had Courtney’s trial attorney had access to the exculpatory DNA results prior to trial, he could have moved to exclude Greer’ s identification at a pre-trial reliability hearing, arguing that the DNA results demonstrate that her identification is unreliable and inadmissible under the Due Process Clause. See Neil v. Biggers, 409 U.S. 188, t98 (1972) (“It is the likelihood of a misidentification which violates a defendant’s right to due process.., Manson v. Brathwaite, 432 U.S. 98 (1977); Simmons v. United States, 390 U. S. 377 (1968).
Had Greer’ s identification been excluded, the State had no case because its entire case was dependent on her identification.84
70. Courtney, therefore, is entitled to a new trial so he may present a “complete” defense and a jury of his peers can accurately assess — in light of the new contrary (scientific) evidence — the credibility and reliability of Greer’s identification. See Kansas v. Ventris, 556 U. S. at 594, n. (“Our legal system... is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses.”). As the U.S. Supreme Court stated a half-century ago:
“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or imiocence[.]” Napue v. Illinois, 360 U.S. 264, 269 (1959). Here, there is no doubt that the new DNA results substantially undermine the reliability of Greer’s testimony and identification.
71. Courtney is entitled to relief.
2. The New Exculpatory DNA Results Demonstrate that Courtney’s
Conviction Is Premised On Unreliable Identification Evidence In
Violation of His Due Process Rights. U.S. Const. Amends. VI, MV
72. The facts pled in all previous paragraphs are incorporated herein as if fully pled.
73. The exculpatory DNA results demonstrate that (Ireer’ $ identification is unreliable and inadmissible under the Due Process Clause. See Neil v. Riggers, 409 U.S. 188, 198 (1972) (“It is the likelihood of a misidentification which violates a defendant’s right to due process...
Simmons v. United States, 390 U. S. 377 (l96X).
74. The introduction of their unreliable identifications rendered Courtney’s entire trial fundamentally unfair. See Manson v. Brathwaite, 432 U.S. 98 (1977); Dowling v. United States, 493 U.S. 342, 352(1990).
75. Courtney is entitled to relief.
3. The New Exculpatory, Non-Match DNA Results Demonstrate That
The State of Okiahoma Convicted And Innocent Person And His
Continued Custody and Liberty Restraints Violate His Due Process
and Eighth Amendment Rights. U.S. Const. Amends. VI, VIII, XIV
76. The newly-discovered DNA results establish that Courtney is actually innocent and that his continued custody and liberty restraints violate his due process rights and right to be free of cruel and unusual punishment. See U.S. Cont. Amends. VI, XIII, XIV; Schuip v. Delo, 513 U.S. 298 (1995); House v. Bell, 547 U.S. 518, 538 (2006).
77, Courtney is on parole and has been since 2010. As a parolee he is still in the custody of the Oklahoma Department of Corrections and his liberty is restrained as a result of being a parolee.
78. Courtney is entitled to relief.
III. Request and Prayer For Relief
79. WHEREFORE Courtney respectfully requests the Court to grant the following relief:
a. A timely hearing on his petition;
b. If the State intends to file a written response to Courtney’s petition, an order compelling the State to file its response (or answer) as soon as possible so the parties can present their issues and arguments to the Court;
c. An order vacating Courtney’s conviction;
d. An order compelling the State to timely retry Courtney in accordance with state law — assuming it chooses to retry Courtney; and
e. Any other order the Court feels is necessary in the interests of justice to protect Courtney’s state and federal constitutional rights.
Respectfully submitted this the 6th day of March, 2012

Outcome: 02-08-1996 TEXT - COURTNEY, SEDRICK RAMON 19995514 Feb 8 1996 12:00:00:000AM - $ 0.00
PETERSON DAVID: (CONTINUED MINUTE) 12) LOREN LORENZO VERN PRICE. OPENING STATEMENTS ARE MADE. ELEVEN WITNESSES ARE SWORN: 1) SCOTT LEONARD 2) OFF. C. RYAN 3) OFF. T. REECE 4) OFF. D. NOORDYKE 5) DET. A. MCDONALD 6) CAROL COX 7) SHEMITA GREER 8) SHERITA COURTNEY 9) RAANAN BROWN 10) RONNIE BROWN 11) CEDRICK COURTNEY. RULE WAS INVOKED. STATE PRESENTS EVIDENCE AND RESTS. DEFT DEMURS AND DEMURRER IS OVER- RULED. DEFT PRESENTS EVIDENCE AND RESTS. BOTH SIDES REST. THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THEBAILIFF IS SWORN AND AT 10:57 A.M., THE BAILIFF AND THE JURY RETIRE FOR DELIBERATION. AT 1:15 P.M., THE JURY RETURNS INTO OPENCOURT WITH THEIR VERDICT, WHICH IS READ IN OPEN COURT, ORDERED RECORDED AND FILED, AND IS, TO WIT: "WE, THE JURY IMPANELLED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO UPON OUR OATHS FIND THE DEFT GUILTY AS CHARGED IN THE INFORMATION HEREIN ***SEE CONT. MIN

07-19-2012 CTFREE - COURTNEY, SEDRICK RAMON 82356308 Jul 24 2012 4:14:40:453PM - $ 0.00
JUDGE WILLIAM C. KELLOUGH. PETITIONER PRESENT, NOT IN CUSTODY, REPRESENTED BY RICHARD O'CARROLL, CRAIG COOLEY, BARRY SCHECK, & DAVID LOFTIS. STATE REPRESENTED BY TIM HARRIS & JIMMY DUNN. COURT REPORTER IS LANA GOTCHER. PETITIONER SEDRICK RAMON COURTNEY PRESENTS HIS APPLICATION FOR POST CONVICTION RELIEF FOR HEARING. COURT GRANTS APPLICATION FOR PRO HAC VICE FILED 7-19-2012 ON BEHALF OF MR. BARRY SCHECK AND MR. DAVID LOFTIS AND PERMITS THEM TO PRACTICE IN THIS COURT FOR THE LIMITED PURPOSE OF THIS CASE. THE COURT RECEIVED AND REVIEWED THE UNOPPOSED MOTION FOR POST CONVICTION RELIEF, THE COURT FILE, THE NEWLY DISCOVED EVIDENCE IN THE NATURE OF DNA TESTING RESULTS AND ENTERED AN ORDER, PURSUANT TO 22 O.S. 1080(B), VACATING PETITIONER’S CONVICTIONS HEREIN IN THE INTEREST OF JUSTICE. STATE THEN MOVED TO DISMISS THE CASE. COURT TOOK THE MOTION TO DISMISS UNDER ADVISEMENT PENDING AN ADDITIONAL MOTION WITH SUPPORTING BRIEF, TO BE FILED BY PETITIONER, REQUESTING A FINDING OF ABSOLUTE INNOCENCE. PETITIONER’S MOTION AND BRIEF IN SUPPORT SHALL BE FILED NO LATER THAN 5:00PM ON 9-7-2012, WITH A RESPONSE BY THE STATE NO LATER THAN 5:00PM ON 9-25-2012 WITH FINAL ARGUMENT AND DECISION ON 9-27-2012 AT 9:00AM IN ROOM 408.

09-27-2012 CTFREE - COURTNEY, SEDRICK RAMON 83055178 Oct 3 2012 3:44:00:197PM - $ 0.00
JUDGE WILLIAM C. KELLOUGH. PETITIONER/DEFENDANT PRESENT, NOT IN CUSTODY, REPRESENTED BY RICHARD O'CARROLL & DAVID LOFTIS. STATE REPRESENTED BY TIM HARRIS & JIMMY DUNN. COURT REPORTER IS CARRIE SLOAN. CASE CALLED FOR FINAL DECISION. PETITIONER'S MOTION FOR DETERMINATION OF ACTUAL INNOCENCE DENIED WITHOUT PREJUDICE TO ASSTERING ACTUAL INNOCENCE IN OTHER PROCEEDINGS. UPON APPLICATION OF THE RESPONDANT, CASE DISMISSED WITH COSTS TO STATE.

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Comments: Editor's Comment: Richard O'Carroll never gave up on this case. He is a shining example of what a criminal defense lawyer should be. The Innocence Project is another example of what can be and has been done to exonerate wrongfully convicted people, especially African-American men.