Supplemental Brief — William S. Hurt, III, Petitioner v. Oklahoma

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William S. Hurt IN, #650799

D.C.C.C. N-217

129 Conner Rd.

Hominy, OK 74035

Clerk of the Court

Supreme Court of the United States

One 1 First St. NE

Washington, DC 20543-0001

Re: William S. Hurt IN, Petitioner v. Oklahoma, No. 24-6263; Notification

Pursuant to Supreme Court Rule 15.8.

Dear, Clerk of the Court

Pursuant to United State Supreme Court Rule 15.8, Petitioner write to inform the

court of a new development relevant to my pending petition for a Writ of Certiorari.

On February 26, 2025, The Oklahoma Supreme Court issued a new decision

reaffirming Petitioner’s conviction (See Attachment A). This ruling differs from the

previous decision under review because it is no longer based on procedural prematurity but

rather significant federal constitutional concerns. Specifically,

1. Denial of legal assistance during a critical stage— the Oklahoma Court of Criminal

Appeals ruled that Petitioner failed to meet his burden in seeking Post-Conviction

DNA testing, despite the fact that Petitioner was denied legal representation during

a key evidentiary hearing. The lack of legal counsel at this stage impaired his ability

to effectively present his case, raising serious due process concerns under the

Fourteenth Amendment and conflicting with this court’s precedent recognizing the

importance of counsel in ensuring fundamental fairness. The hearing was ata

critical stage in which the defendant’s right may be lost, defense waived, privileges

claimed or waived, or one in which the outcome of the case is substantially affected

in some other ways. Coleman v. Alabama, 399 U.S. 1, 90S. Ct. 1999 (1970);

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| OFRICE OF THE CLERK

L SUPREME COURT, U.S.

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Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961). Petitioner asserts he has a

clear legal right to effective assistance of counsel in accordance with due process of

law, as guaranteed by Fifth, Sixth, and Fourteenth Amendments of United States

constitution and Article II sections 2, 7, and 20 of the Oklahoma Constitution.

Coleman v. Alabama, 399 U.S. 1, 90S. Ct. 1999 (1970); Hamilton v. Alabama, 368

U.S. 52, 828. Ct. 157 (1961); Randle v. State, 1993 Ok Cr 47, 861 P.2d 314; Douglas

v. California, 372 U.S. 353, 83 S. Ct. 814 (19638); Evitts v. Lucey, 469 U.S. 387, 105 S.

Ct. 830 (1985).

Mischaracterization of Petitioner’s DNA testing request— The Oklahoma Court of

Criminal Appeals concluded that Petitioner did not sufficiently identify specific

items far DNA testing. However, this finding overlooks Petitioner submission of a

property sheet listing all items for testing, which provide the necessary specificity.

Post-Conviction DNA testing Pursuant to Okla. Stat. Tit. 22, § 1373.4 allows a

defendant to request Post-Conviction DNA testing on biological evidence that could

potentially provide new or exculpatory information. The Supreme Court in District

Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009), held

that a defendant’s constitutional right to due process does not guarantee access to

post-conviction DNA testing. However, Osborne did not rule out the possibility of

Post-Conviction DNA testing. Where state law provides such a remedy.

In Schulp v. Delo, 513 U.S. 298, 312-32, 115 S.Ct. 851, 860-69, 130 L.Ed 2d

808 (1995), the court emphasized that federal habeas corpus relief is availability of

new exculpatory evidence is central to these claims, and courts have recognized that

advancements in DNA technology provide a unique opportunity to reveal such

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383, 183 8.Ct. 1924, 185 L.Ed 2d 1019 (2018), the justice system must be vigilant in

providing the means to correct wrongful convictions, particularly when evidence

available at the trial was insufficient to conclusively prove guilt or innocence.

Allowing Post-Conviction DNA testing would serve not only the specific interests of

the Petitioner, but also the broader interest in ensuring that the criminal justice

system remains accurate and fair, denying access to DNA testing when biological

evidence exists is incompatible with the constitutional principles of justice and

fairness.

Furthermore, the Post-Conviction DNA testing, where available biological

evidence exists, is a critical tool to ensure that convictions are based on reliable

evidence. The court should grant Petitioner the opportunity to test item #9

Cellphone- found in the park near the scene and introduced at trial without any

known ownership, #14 facial hair, #16 Scalp hair, # 17 left finger nail, #18 right

fingernail, #20 oral swab and also items that were released to Homicide Detective

C.K. Hill which is #8 Keychain, #32 contents from victim’s pocket, and #88 ring.

Petitioner requested these along with several other items listed in the property

receipt for Tulsa County- Tulsa Police Department- Property Receipt Case No. 2010-

1963. Petitioner was accused of being involved street brawl and presented the jury

with an alibi defense at his jury in regards to his whereabouts at the time of the

murder. Petitioner should not be denied based on procedural obstacles or overly

stringent standards. As recognized in Schlup v. Delo and Ex Parte Elizondo, the

discovery of new, potentially exculpatory evidence is a legitimate basis for Post-

Conviction relief.

UL

The new ruling not only shifts the basis for affirmance but also raises distinct and

substantial federal constitutional issues that merits this court’s attention. Given the

implications of due process and the right to meaningful Post-Conviction DNA Relief, I

respectfully request that the court consider this development in its disposition of my petition.

If further briefing is necessary, I am prepared to provide additional information as directed

by the court.

Dated: March UY 2028S.

Je (wT

William S. Hurt Ill #650799

D.C.C.C. N-217

129 Conner Rd.

Hominy, Ok 74085

}

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IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

FLED

NN COURT OF CRIMINAL APPEAy ¢

WILLIAM S. HURT, III, STATE OF OKLAHOMA

. FEB 26 2025

Petitioner,

JOHN D. HADDEN

CLERK

Vv. Nos. PC-2024-684

PR-2024-990

STATE OF OKLAHOMA,

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Respondent.

ORDER AFFIRMING DENIAL OF MOTION

FOR POST-CONVICTION DNA TESTING

Petitioner, pro se, appeals to this Court from an order of the

District Court of Tulsa County denying his motion for post-conviction

DNA testing in Case No. CF-2010-1963. On October 7, 2011, a jury

convicted Petitioner of one count of First Degree Murder. Pursuant to

the jury’s verdict, Petitioner was sentenced to life imprisonment. This

Court affirmed Petitioner’s conviction. See Hurt v. State, No. F-2011-

1057 (Okl. Cr. May 17, 2013) (not for publication).

On June 14, 2024, Petitioner, pro se, filed a motion for postconviction DNA testing pursuant to the Postconviction DNA Act, 22

O.8.2021, §§ 1373.1-1373.7. The trial court held a hearing on the

motion on August 14, 2024, and the Honorable Clifford Smith,

Associate District Judge, in a thorough August 19, 2024, order,

ATTACHMENT :A

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PC-2024-684, Hurt v. State

denied Petitioner’s request upon finding he had not demonstrated “[a]

reasonable probability that [he] would not have been convicted if

favorable results had been obtained through DNA testing at the time

of the original prosecution.” See 29 O.S.2021, § 1373.4(A)(1).

Specifically, Judge Smith held that Appellant failed to satisfy Section

1373.4(A)(1) because Appellant never identified any piece of evidence

that if tested could change the outcome in this case.

Appellant appealed the trial court’s denial of his motion for DNA

testing by filing a notice of post-conviction appeal in the trial court

on August 27, 2024, and a petition in error with the Clerk of this

Court on September 6, 2024. This Court affirmed the trial court’s

order denying post-conviction relief in an order filed with this Court’s

Clerk on October 4, 2024. Hurt v. State, No. PC-2024-684 (Ok1. Cr.

October 4, 2024) (not for publication). Petitioner filed a petition for

extraordinary relief in the Oklahoma Supreme Court on October 25,

2024, complaining that this Court ruled upon his post-conviction

appeal without allowing him the allotted sixty (60) days to file his

brief. See Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch.18, App. (2025). Petitioner included his post-

conviction brief in the pleading filed in the Supreme Court. The

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PC-2024-684, Hurt v. State

Oklahoma Supreme Court transferred the matter to this Court in an

order filed on December 16, 2024. Hurt v. State, No. 122,612 (Okl.

December 16, 2024) (not for publication). The matter was assigned

this Court’s Case No. PR-2024-990.

The Court has reviewed the record in this case and the concerns

of Petitioner are well taken. To accomplish the necessary corrective

action we order the RECALL of the mandate previously issued in this

matter on October 4, 2024. The Clerk is directed to transfer all

pleadings filed in Case No. PR-2024-990 to Case No. PC-2024-684

and Case Nu. PR-2024-990 is DISMISSED. We now consider the

merits of the arguments raised by Petitioner in his post-conviction

appeal brief.

We review the district court’s determination for an abuse of

discretion. State ex rel. Smith v. Neuwirth, 2014 OK CR 16, § 12, 337

P.3d 763, 766. An abuse of discretion is any unreasonable or arbitrary

action taken without proper consideration of the facts and law

pertaining to the matter at issue or a clearly erroneous conclusion and

judgment, one that is clearly against the logic and effect of the facts

presented. Neloms v. State, 2012 OK CR 7, { 35, 274 P.3d 161, 170.

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PC-2024-684, Hurt v. State

In his first proposition of error, Petitioner argues Judge Smith

abused his discretion when he denied Petitioner’s request that he be

appointed counsel for his post-conviction DNA hearing. There is no

constitutional right to counsel in state post-conviction proceedings.

Hatch v. State, 1996 OK CR 37, 7 50, 924 P.2d 284, 294-95: see also

Braun v. State, 1997 OK CR 26, 7 33, 937 P.2d 505, 515. 22 O.S8.2021,

§ 1082 states that counsel will only be provided in post-conviction

proceedings “on a finding by the court that such assistance is

necessary to provide a fair determination of meritorious claims.” In

Grimes v. State, 1973 OK CR 312, 7 8, 512 P.2d 231, we found the

meaning of this statute clear in that the trial court first considers the

merits of applicant’s allegations and if it deems it sufficiently worthy,

the trial court then appoints counsel to represent the applicant. In this

case Petitioner has failed to establish Judge Smith abused his

discretion when he denied Petitioner’s request for counsel.

Accordingly, Proposition I is without merit and denied.

In his remaining propositions of error, Petitioner contends items

were not tested that could now prove probative if tested. Petitioner’s

brief offers nothing to support these claims and the record contains

no support for the claims. These propositions are without merit.

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PC-2024-684, Hurt v. State

Pursuant to Section 22 O.S.2021, § 1373.4(A) a court shall

order DNA testing only if the court finds:

1. A reasonable probability that the petitioner would not

have been convicted if favorable results had been obtained

through DNA testing at the time of the original

prosecution;

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2. The request for DNA testing is made to demonstrate the

innocence of the convicted person and is not made to

unreasonably delay the execution of the sentence or the

administration of justice;

3. One or more of the items of evidence the convicted

person seeks to have tested still exists:

4. The evidence to be tested was secured in relation to the

challenged conviction and either was not previously

subject to DNA testing or, if previously tested for DNA, the

evidence can be subjected to additional DNA testing that

will provide a reasonable likelihood of more probative

results; and

S. The chain of custody of the evidence to be tested is

sufficient to establish that the evidence has not been

substituted, tampered with, replaced or altered in any

material respect or, if the chain of custody does not

establish the integrity of the evidence, the testing itself has

the potential to establish the integrity of the evidence. For

purposes of this act, evidence that has been in the custody

of law enforcement, other government officials or a public

or private hospital shall be presumed to satisfy the chainof-custody requirement of this subsection absent specific

evidence of material tampering, replacement or alteration.

Judge Smith found that all requirements for DNA testing had been

satisfied except for the first—a reasonable probability that the results

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PC-2024-684, Hurt v. State

of DNA testing, “if favorable,” would have prevented Petitioner’s

conviction. The record sufficiently establishes that the district court’s

determination that Petitioner failed to satisfy Section 1373.4(A)(1)

was neither clearly erroneous nor clearly against the logic and effect

of the facts presented. Petitioner has failed to demonstrate that

favorable DNA testing results would create a probability sufficient to

undermine confidence in the outcome of his trial.

Asa result, Petitioner has failed to demonstrate entitlement to

DNA testing under the Postconviction DNA Act. Therefore, the order of

the trial court denying Petitioner’s motion for post-conviction DNA

testing is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma

Court of Criminal Appeals, Title 22, Ch. 18, App. (2025), the

MANDATE is ORDERED issued upon the delivery and filing of this

decision.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this

_Qlld__ day of February. 2095.

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GARY L. JUMPKIN , Presiding Judge

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PC-2024-684, Hurt v. State

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WILLIAM J. MU

EMAN, Vice Presiding Judge

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DAVID BALEWIS, Judgq) bY,

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ROBERT L. HUDSON, Judge

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SCOTT ROWLAND, J udge