WD76058 IN THE MISSOURI COURT OF APPEALS, WESTERN DISTRICT STATE OF MISSOURI, ex rel. RYAN FERGUSON, Petitioner, DAVE DORMIRE, Superintendent, v. Case No. Jefferson City Correctional Center, Respondent. PETITION FOR WRIT OF HABEAS CORPUS COMES NOW Ryan Ferguson by and through his attorneys, Kathleen T. Zellner, Douglas H. Johnson and Samuel Henderson, and petitions this Court to issue a Writ of Habeas Corpus pursuant to Missouri Rule 91 based on violations of Ryan's constitutional rights which enabled the State of Missouri to obtain a conviction and sentence totaling 40 years in the Missouri Department of Corrections against an innocent person. In support of this Petition, Ryan states as followsl: 1 Kathleen T. Zellner and Douglas I-l. Jolmson are out--of--state counsel and have represented Ryan since 20H). [11 2010 they were admitted pro /me vice to represent Ryan in the appeal of the denial of his Rule 29.15 motion- In 2Dl they were admitted pro hoe vice to represent Ryan in the petition for writ of habeas corpus filed with the Circuit Court of' Cole County- Ms- Zellner and Mr. Johnson will be filing motions for admission pro line vice once the instant petition is filed. Mr. l-l.enderson represents Ryan as local counsel. J.SC) 83590 LUZ '09 alelladdia' SUGGESTIONS IN SUPPORT INTRODUCTION AND SUMMARY OF ARGUMENT This habeas case presents the Court with an extraordinary set of facts that, when examined, force the conclusion that an innocent person has been unjustly convicted based on perjured witness testimony and the failure of the State to disclose exculpatory evidence. On October 21, 2005, Ryan was found guilty by a jury of one count of second degree murder and one count of first degree robbery, and was subsequently sentenced to a total of 40 years' incarceration. The prosecution's case against Ryan was incredibly weak. As this Court has previously noted, no physical evidence links Ryan to the murder. Ferguson 11. State, 325 400, 419 (Mo. App. W.D. 2010). Rather, Ryan's conviction rests on the trial testimony of two witnesses -- his co-defendant, Charles Erickson ("Erickson"), and Jerry Trump ("Trump"). Id. This Court, in examining the effectiveness of Ryan's trial attorney on appeal from the denial of his Rule 29.15 motion, concluded that Erickson's credibility had been severely undermined at trial. Specifically, this Court stated, "Erickson was subjected to a and extensive cross-examination, wherein Ferguson's trial counsel was successfill in illustrating that Erickson had made various prior statements that seriously undermined Erickson's credibility." Id. at 417 (emphasis added). Since that ruling it has come to light that Trump -- the only other witness to offer any evidence connecting Ryan to the murder -- perjured himself at Ryan's trial. On April J.SC) Wei 33590 LUZ 3l9||'9dd'v' 17, 2012, at an evidentiary hearing on Ryan's Rule 91 petition filed with the Circuit Court of Cole County, Trump testified that he lied when he testified at trial that he saw Ryan next to the victim's vehicle in the early morning hours of November 1, 2001. The Circuit Court, the Honorable Daniel Green ("Judge Green"), found that Trump committed perjury at the initial trial wherein he identified Ryan as one of the two individuals he saw that night. At that hearing Erickson also admitted that he perjured himself at Ryan's trial. Specifically, Erickson testified at the hearing that he lied at Ryan"s trial when he testified that he remembered he and Ryan perpetrating the murder. Erickson admitted that he has never had any memory of that night due to suffering a blackout from extensive drug and alcohol use. As it stands, the only two witnesses supporting the prosecution"'s case against Ryan have been wholly discredited. Not only do these recantations support Ryan's freestanding claim of innocence, but they also establish the "gateway" of innocence that allows this Court to review Ryan's other claims of constitutional error. Specifically, this Court may review Ryan's claim that his right to due process was violated because at the time his jury was selected Lincoln County employed a program that allowed potential jurors to "opt out" of jury service by performing community service and paying a fee. Furthermore, Ryan is also entitled to relief based on the State's knowing use of perjured testimony, and numerous Brody violations, the cumulative effect of which denied him a fair trial. J.SC) 33590 LUZ '09 alelladdh' After a full and fair review of the following facts and applicable law, Ryan requests that justice finally be served, his constitutionally tainted conviction be set aside and that he be released after serving almost 9 years for a crime he did not commit. STATEMENT OF JURISDICTION Jurisdiction lies with this Court pursuant to Missouri Supreme Court Rule 91, and 508.010 R.S. Mo. (2000), in that Ryan is a prisoner in the State of Missouri, and is being held in the custody of Respondent within Cole County, Missouri, and service upon Respondent can be made within Cole County, Missouri. 1.1.1.- STATEMENT OF PARTIES Ryan, 1137593, is a prisoner of the State of Missouri, due to a criminal conviction. Ryan is being held at the Jefferson City Correctional Center, located at 8200 No More Victims Road in Jefferson City, Cole County, Missouri, 6510]. Service can be made upon Ryan at this address. Ryan is represented by Samuel I-Ienderson, 20l5 Bredell Avenue, St. Louis, Missouri, 63143. Service can be made upon Ryan's counsel at this address. Simultaneous with the tiling of this petition, Kathleen T. Zellner and Douglas I-I. Johnson, of Kathleen T. Zellner dc Associates, P.C., 1901 Butterfield Road, Suite 650, Downers Grove, Illinois, 60515, will be filing motions for admission pro hac vice. Service can be made upon Ryan's counsel at this address. J.SC) S3590 LUZ '09 alelladdb' Respondent David Dormire ("Respondent") is employed by the State of Missouri as the Superintendent of Jefferson County Correctional Center, 8200 No More Victims Road, Jefferson City, Missouri, 65101. Service can be made upon Respondent at this address. Respondent will be represented by the Attorney General's Office for the State of Missouri, Jeremiah (Jay) Nixon, PO. Box 899, Jefferson City, Missouri, 65102. Service can be made upon Respondenfs counsel at this address. STATEMENT OF THE CASE A. PROCEDURAL HISTORY 1. Ryan is incarcerated in Jefferson City Correctional Center, located at 3200 No More Victims Road in Jefferson City, Cole County, Missouri. The Jefferson City Correctional Center is operated by Respondent. Respondent is restraining Ryan's liberty. 2. Ryan was charged in Boone County of felony murder in the second degree in violation of ?565.02l 2000, and robbery in the first degree in violation of ?569.020 2000. 3. Prior to trial the parties agreed that due to publicity concerns, a jury would be drawn from Lincoln County and that the case would thereafter be tried in Boone County. 4. On October 21, 2005, following a five--day jury trial in the Boone County Circuit Court before the Honorable Ellen Roper ("Judge Roper"), Ryan was convicted of one count of second degree murder and one count of first degree robbery. On December J.SC) 33590 LUZ '09 alelladdh' 5, 2005, Ryan was sentenced to 30 years on the murder count and 10 years on the robbery count, to be served consecutively. (Pet. Exh. ll5).2 5. On June 26, 2007, this Court affirmed the judgment and sentence on direct appeal. State v. Ferguson, 229 612, 614 (Mo. App. W.D. 2007). 6. On November 14, 2007, Ryan filed a timely pro se Rule 29.15 motion. Valerie Leftwich of the public defender's office was subsequently appointed as Ryan's counsel. On March 3, 2008, Ms. Leftwieh filed an amended Rule 29.15 motion asserting claims of, inter alia, Brady and ineffective assistance of counsel. An evidentiary hearing was held July 16-18, 2008. 7. On August 11, 2008, Ryan's appointed attorney filed a motion to reopen the evidence in the Rule 29.15 proceedings to present evidence that Ryan's jury was not selected in conformity with jury selection statutes. Specifically, at the time Ryan's jury was selected Lincoln County employed an "opt out" procedure that allowed otherwise qualified jurors to perform community service and pay a fee in lieu ofjury duty. 8. On September 2, 2008, the motion court, the Honorable Jodie C. Asel ("Judge Asel"), determined that the jury selection issue raised by Ryan"'s motion was heard more properly as a petition for a writ of habeas corpus and transferred the motion to the Circuit Court of Cole County, Missouri, the Honorable Richard Callahan ("Judge Callahan"). 2 The exhibits referenced are those offered at the habeas hearing by Ryan, which are also submitted with this Petition. To the extent any exhibits referenced were not offered at the hearing, they are sequentially numbered following the last numbered exhibit admitted at the habeas hearing. An Exhibit List is submitted with this Petition. J.SC) Wei 33590 LUZ '09 313||3d'3l'o' 9. On December 15, 2008, Judge Callahan heard evidence in support of Ryan's motion, and on January 9, 2009, the court denied the petition. Fergusorz v. Dormire, No. The petition was subsequently filed with this Court and denied without a written opinion on March 31, 2009. In re Ferguson Dormire, The petition was then filed with the Missouri Supreme Court and denied without a written opinion on May 5, 2009. In re Ferguson Dormire, No. SC90095. 10. On June 12, 2009, Judge Asel entered findings of fact and conclusions of law overruling Ryan"'s Rule 29.15 motion. Ferguson v. State, No. 0713A-CV05 838. 11. On August 31, 2010, this Court denied Ryan relief pursuant to his appeal of the judgment denying his Rule 29.15 motion. This Court also declined to review new evidence that Ryan's co-defendant, Erickson, had recanted his trial testimony, noting that Ryan could bring his claim in a petition for writ of habeas corpus. Ferguson, 325 at 409. (See also Pet. Exh. 97). 12. On November 2, 2010, this Court denied Ryan's Motion for Rehearing and Transfer. I-Iis application to the Supreme Court was also denied. Ferguson 12. State, No. 13. On February 14, 2011, Ryan initiated the present state habeas corpus litigation by filing a Rule 91 petition in the Circuit Court of Cole County, Judge Green. 14. On March 25, 2011, while the petition was pending, Ryan filed a petition for writ of habeas corpus with this Court, challenging only the "opt out" procedure used to select his jury. On March 29, 2011, this Court denied the petition, stating, "the denial is without prejudice to Ferguson reasserting this issue in this Court subsequent to the J.SC) 33590 LUZ '09 313||3d'3l'u' Circuit Court's disposition of the Petition pending there, or from seeking other appropriate relief." 15. On July 22, 2011, Judge Green denied Ryan's jury selection claim based on Rule 91.22 and ?532.040 2000. Judge Green subsequently ordered a hearing as to the other claims in Ryan's petition. 16. On April 16-20, 2012, the parties presented evidence at an evidentiary hearing. During the hearing Erickson and Trump both testified that their trial testimony implicating Ryan in the murder was false. The Court also heard testimony and received evidence regarding Ryan's Brady Claims. 17. On October 31, 2012, Judge Green entered judgment denying Ryan's claims for relief. (Pet. Exh. 116). 18. Ryan petitions this Court for a writ of habeas corpus, bringing issues and evidence before the court that could not have been presented in his original Rule 29.15 motion for post-conviction relief as explained below. 19. Pursuant to Rule Ryan states that no petition for the relief sought based on his freestanding claim of actual innocence, knowing use of perjured testimony, or Brady violations has been made to any higher court. Further, with regard to the jury issue, Ryan states that no higher court has considered that claim in light of the evidence establishing the gateway of innocence that permits consideration of otherwise procedurally barred claims. Additionally, no higher court has considered the jury selection issue in light of Preston v. State, 325 420 (Mo. App. E.D. 2010) and Shite ex rel. Koster MeCarver, 376 46 (Mo. App. E.D. 2012), which granted J.SC) Wei 33590 LUZ '09 alelladdb' post-conviction and habeas relief where the grit; same method of jury selection was utilized. B. STATEMENT OF FACTS This case is about actual innocence. No direct evidence tied Ryan to the victimis murder. No physical evidence even placed him at the scene. The only circumstantial evidence against Ryan was the exhaustively impeached testimony of Erickson and the identification made by Trump. Both of these witnesses have now admitted that their trial testimony linking Ryan to the murder was false. To aid this Court"'s resolution of the claims raised in this Petition, Ryan briefly summarizes the evidence elicited at the prior proceedings below. 1. The trial evidence Kent Heitholt ("Heitholt") was murdered in the early morning hours of November 1, 2001 in the parking lot of the Columbia Daily Tribune. I-Ieitholt sustained multiple injuries to his head from a round linear object, like a pipe or board. (TT 1406-1513 The testifying pathologist indicated that the injuries were the result ofeleven separate strikes. (TT 1414-15). The hyoid bone had been fractured. (T 1424-25). The cause of death was determined to be caused by strangulation. (TT 1425-31). A mark around the victim's neck matched his belt buckle, which was found on the ground nearby along with part of his belt. (TT 1122-23, 1423). 3 The prior proceedings are submitted with this Petition. The trial transcripts shall be designated the Rule 29.l5 transcripts shall be designated and the habeas hearing transcripts shall be designated "l-lH (witness) Depositions taken prior to the habeas hearing shall be designated "l-l.Dep. (witness) J.SC) 33590 LUZ '09 fl-l9"U9I" alelladdb' Physical evidence was discovered at the scene. In addition to the fingerprints of Heitholt and his daughter, unknown prints were discovered on and in his car. (TT 1347). Two sets of bloody footwear impressions were located at the scene. (TT 1142-44). A hair tbund in I-1eitholt's hand, which did not belong to Hcitholt, was never connected to any suspect. (TT 1182-1202, 1631-35, 1649, 1686). Shawna Ornt and Trump - custodians at the Columbia Tribune - were interviewed by police as possible witnesses. Both testified that they saw two white males standing by I-leitholt's vehicle shortly before his body was discovered. (TT 933, 973). Trump was unable to provide a detailed description and told police he was not certain he could identify the individuals. (TT 1057). saw one of the individuals "really good" and worked with a sketch artist to generate two different composite sketches of the person she saw. (TT 934, 939-40, 942). Ornt described this person to police as muscular, but not stocky, having blond hair and in his early 20s. (TT 954-55). The Heitholt homicide was covered extensively in the news (TT 434) and many details regarding the murder were reported in media accounts. Two years later an article appeared in the newspaper concerning the 1-Ieitholt murder, which remained unsolved. (TT 580). Erickson, who was a junior in high school at the time the crime was committed, read the articles and began to believe he was having "snapshot" memories of having committed the crime. (T 576, 579, 582-84 709-10). Erickson would later testify that the memories were so distant they seemed dream-like. (TT 584). In January, 2004, Erickson approached Ryan and informed Ryan he felt he was having "repressed" memories. (TT 533). The night I-leitholt was murdered, Erickson and J.SC) Wei 33590 LUZ '09 alelladdh' Ryan had been at a bar in downtown Columbia. (TT 577). Erickson told Ryan. he thought they had killed "the Tribune guy" that Halloween. 588). Ryan told Erickson, "no, we didn"'t do that." (TT 538). A few months later Erickson informed two other friends, Nick Gilpin ("Gilpin") and Art Figueroa ("Figueroa"), about the thoughts he was having. (TT 592-96). Erickson told them he felt he could be dreaming the whole scenario. (TT 627-28, 820). Gilpin went to the police. (TT 600). On March 10, 2004, Columbia police contacted Erickson and took him to the police station where he was interrogated by Detective John Short ("Short"). (TT 598-99). Throughout his subsequent interviews with police it became apparent that Erickson could not remember basic details about how the crime was committed. The police resorted to "helping" Erickson remember what had happened. During Erickson's first interview with Detective Short, Short told him that one of the two individuals told the cleaning lady to get help. (Pet. Exh. 20). During the second interview, Erickson told Short that he struck Heitholt one time. Short corrected Erickson, telling him that the victim was hit more than once and that there were "multiple, multiple, multiple confusions and strikes" on I-Ieitholt's head. (Pet. Exh. 21, 21a at p. 26). Short asked Erickson about "where you saw Ryan strangle this guy," and asked it" Erickson knew with what the victim had been strangled. (Pct. Exh. 21a, pp. 20-21). Erickson told Short he thought it was a shirt or something. (Pet. Exh. 21a, p. 21). Short told Erickson he knew it wasn't a shirt; Erickson replied, "Maybe a bungee cord or something from his car. I don't know why he'd have a rope in his car." (Pet. Exh. 21a, 11 J.SC) 33590 9103 '09 alelladdb' U-131531111 p. 21). Short informed Erickson that he knew for a fact that belt was ripped off his pants and he was strangled with his belt. (Pet. 21a, p. 21). Erickson replied, "Really?" and, don't remember that at all." (Pet. Exh. 21a, p. 21). Short told Erickson that I-Ieitholt's keys were missing. (Pet. Exh. 21a, p. 22). Erickson replied it was possible that Ryan took them. (Pet. Exh. 21a, p. 23). Short asked him, '"it's possible that Ryan could have strangled this guy with his belt and got the keys and you not know it?" (Pet. Exh. 21a, p. 23). Erickson replied, "The man's belt'? l-Iis own belt?" (Pet. Exh. 21a, p. 23). Asked again if that rang a bell, Erickson said, "Not at all."' (Pet. Exh. 21a, p. 23). Short filled in other aspects of Erickson's rendition of the crime. With regard to the "cleaning lady," Short asked Erickson, "[S]he says that somebody said, "Go get help." So that's probably you, right?" to which Erickson replied, guess, yeah." (Pet. Exh. 21a, p. 6). Erickson insisted that he actually threw up at the scene. (Pet. Exh. 21a, p. 13). Short told him, however, that no vomit was found. (Pet. Exh. 21a, p. 13). Erickson repeatedly expressed uncertainty as to whether the memories he had were authentic. Erickson could not recall what I-Ieitholt was doing in the parking lot; he told Short, could just be making assumptions." (Pet. Exh. 21a, p. 15). Erickson later told Short, might not even know what I'm talking about." (Pet. Exh. 21a, p. 23). Following the interview, Detective Jeff Nichols ("Nichols") drove Erickson around downtown so that Erickson could show them where things occurred. (TT 602, 677, 1291). Erickson could not remember where he and Ryan parked that night when they went to the bar, By George. (Pet. Exh. 22, 22a at pp. 2-3). Erickson could not even l2 J.SC) S3590 LUZ '09 313||3d'3l'o' recall where the murder took place and asked Nichols, "Can you show me exactly where this happened?" (Pet. Exh. 22a, p. 5). Nichols proceeded to drive Erickson to the exact location of the murder, and even pointed out the exact space in which I--Ieitholt's car had been parked. (Pet. Exh. 22a, p. 6). Erickson persisted in telling Nichols about his lack of memory, stating, don't remember most of what happened." (Pet. Exh. 22a, p. 7). Erickson thought they returned to the club afterwards, "If Pm even sure about this." (Pet. Exh. 22a, p. Erickson told Nichols he thought he went directly to a certain intersection immediately after the crime; Nichols told him the footprints went around the building the other direction. (Pet. Exh. 22a, p. 8). When he arrived back at the station, Erickson told Nichols, don't know. I mean, I don't even -- It"sjust so foggy. Like, I couldjust be sitting here fabricating all of it and not know. Like I don't know. I (Pet. Exh. 23, 23a). Asked about details the detective believed Erickson had provided, Erickson stated, "this is after reading the newspaper in this is kind of put together with I mean, I don't know if I'm just flipping out or whatever. But I mean, this is what I put together with what could've happened." (Pet. Exh. 23a, p. 5). Erickson continued, "l"'n1 just kind of presuming what happened," and "Fm making presumptions based on what I read in the newspaper."' (Pet. Exh. 23a, p. 5). Nichols responded by telling Erickson that he would not listen to his "gibberish," that Erickson's "hind end is the one hanging over the edge" and "it's you that's on this chopping bloek."' (Pet. Exh. 23a, pp. 6-7). Erickson testified against Ryan at trial in exchange for a lesser sentence. (TT 613). At trial Erickson testified that on Halloween night, 2001, he and Ryan met Ryan's 13 J.SC) 33590 LUZ '09 alelladdb' sister, Kelly, at a club called By George. (TT 504-07). One ofKel1y's friends knew the bouncer, so he let them in even though Erickson and Ryan were only seventeen. (TT 507-09). After some time Erickson and Ryan left the bar because they had run out of money. (TT 515). Erickson testified that Ryan proposed they rob someone so the two could stay out longer. (TT 516-17). According to Erickson, Ryan retrieved a tire tool from the trunk of his car and handed it to him. (TT 519). Erickson testified that as they walked down an alleyway off Providence he and Ryan saw Heitholt. (TT 520). Erickson and Ryan hid behind a dumpster enclosure until another person who had come out of the building got in his car and left. (TT 522). Erickson then stepped over the wall and hit l--Ieitholt with the tire tool. (TT 525). Erickson kept hitting Heitholt; ultimately Heitholt went to his knees and then to the ground. (TT 525-26). Erickson said there was blood everywhere, including on the ground, himself and the car. (TT 526). Erickson testified a lady came outside; as more people came outside, Erickson yelled, "This man's hurt, go get help," then he and Ryan briskly walked away. (TT 551- 54). Erickson stated he had the victim's belt. (TT 557). Erickson and Ryan headed down Fourth Street, crossed Broadway and into Flat Branch Park. (TT 555-56, 559). According to Erickson, after he washed his hands off in the creek he and Ryan encountered Dallas Mallory near the Phillips 66 station on Providence where he told Mallory what he and Ryan did. (TT 561). This location was several blocks south of what he had originally told police. Erickson testified that when he and Ryan arrived back at Ryan's car on First Street Ryan opened the trunk and got out a plastic grocery I4 J.SC) 33590 LUZ '09 alelladdb' bag. (TT 564-66). Erickson could not remember what he did with his clothes or shoes. (TT 575). Erickson testified he and Ryan went back to the club, By George, where people were still drinking and dancing. (TT 567). Later, after the club closed, Ryan dropped Erickson off at home. (TT 574). Erickson admitted that he told the nurse at the jail he was not really sure he had committed the crime, even after his arrest. (TT 768-69). His parents encouraged him to reach a plea agreement to testify against Ryan and that the more details he provided the better deal he could get. (TT 777-78). Trump provided the only corroboration of E1-ickson's inconsistent, severely impeached trial testimony. Trump indicated he was in the penitentiary between December 2001 and December 2004 for felony endangering the welfare of a child. (TT 988-90, 1020). Trump testified that while he was incarcerated his wife, Barbara Trump, sent him a newspaper article about the Heitholt murder published after Ryan's and Erickson's arrests. (T 1021). Trump testified that the article was folded in such a manner that he saw the photographs of Ryan and Erickson before he saw the rest of the article. (TT 1000). According to Trump he had seen those faces at the Tribune the night Heitholt was killed. (TT 1022). Trump identified Ryan as one of the two individuals he saw. (TT 1029). Because the defense was unable to show that any State action led to the identification, the trial court denied the defense's motion to exclude the identification. (TT 101?). No physical evidence found at the crime scene was connected to Ryan or Erickson. (TT 1332-52, 1368-93). No items found in Ryan's car were connected to 15 J.SC) Wei 33590 9103 '09 alelladdb' U-131531111 Heitholt, and the tire tool taken from the car Ryan was driving that night was excluded as the murder weapon. 538, 1217-22, 1228-32). Ryan and Erickson were both excluded as contributors of the hair found in the victim's hand, and the fingerprints and shoe prints found at the scene. (TT 663-666, 1360-64, 1603-06, 1686-88). The police never found I-Ieitholt's watch, car keys, or the rest of his belt. The murder took place between 2:12 and 2:20 a.m. on November 1, 2001. (TT 925-26, 1061). Erickson testified he and Ryan went back to the club where people were drinking and dancing after the attack on Heitholt. (TT 567). Contrary to Erickson's testimony, By George closed every night at 1:30 a.n1. (TT 1730-32). The bartender testified he was probably gone by 2:00 am. that night, and two other customers confirmed the bar closed at 1:30 a.m. (TT 1733, 1714-15). 1-1eitholt's wallet was found in his car. (TT 1176, 1225). Ryan testified in his own defense. Ryan steadfastly maintained his innocence from the date of his arrest. (TT 1766-67). Ryan reinembered going to By George on Halloween night, 2001. (TT 1778-81). Ryan paid fo1' him and Erickson to get in then bought them each a drink. (TT 1782-83). Close to closing time all the lights came on, the music turned off and bar employees kicked everyone out. (TT 1785). Ryan and Erickson left around 1:20 or 1:30 am. (TT 1784-86). Ryan drove Erickson home. (TT 1786). Ryan then drove home. (TT 1788). After arriving home, Ryan made a final J.SC) 83580 8103 '08 313||3d'3l'o' U-131531111 phone call at 2:06 a.m. and spoke with Holly Admire. (TT Ryan did not go to the Tribune parking lot that night. (TT 1802). After deliberations, the jury convicted Ryan of second-degree murder and first- degree robbery and Ryan was sentenced to terms of thirty and ten years' imprisonment. (TT 2188-89, 2230). 2. Direct appeal and Rule 29.15 proceedings Ryan appealed his conviction. This Court aflirmed the conviction by per curiam opinion. State v. Ferguson, 229 612 (Mo. App. W.D. 2007). Ryan filed a timely post-conviction motion under Rule 29.15. The Rule 29.15 motion made claims based on the State's failure to disclose exculpatory evidence and ineffective assistance of counsel. The motion court denied relief. Ryan appealed the denial of his Rule 29.15 motion and, simultaneously, filed a Motion to Remand Based Upon Newly Discovered Evidence. The motion to remand was based upon Erickson's sworn statements that he alone perpetrated the robbery and murder. This Court affirmed the denial of the Rule 29.15 motion, and flirther denied the motion to remand. In doing so, however, this Court noted: That is not to say that the issues of this case do not give us pause. The sole evidence tying Ferguson to the crime was the testimony of Erickson and the identification from Trump. There is no physical evidence that ties Ferguson to this murder. Ferguson, 325 at 419. 'l The cell tower records -- which would have provided a location from which the calls were made were destroyed prior to Ryan's arrest. J.SC) 83580 LUZ '08 alelladdh' U-1315388 3. Newly discovered evidence presented at habeas hearing on April 16-20, 2012 The newly discovered evidence obtained since trial and presented at the habeas hearing below establishes the following: 1. Trump committed perjury at Ryan's trial when he falsely identified Ryan as a person he saw by I-leitholt's vehicle the night of the murder. 2. Erickson committed perjury at Ryan's trial when he falsely testified that he remembered that he and Ryan perpetrated the murder. 3. Prosecuting Attorney Kevin Crane ("Prosecutor Crane") knew and/or should have known, based on evidence in his possession that was not disclosed to the defense, that Trump committed perjury at Ryan's trial. Prosecutor Crane also knew and/or should have known that false information was provided to Erickson to convince him of his guilt, and to convince him that he should take a plea to testify against Ryan. 4. The State committed several Brody violations by failing to disclose exculpatory and impeachment evidence to Ryan's defense: The State failed to disclose that Barbara Trump, Jerry Trump's wife, was interviewed and that she had no memory of sending the article to Trump which served as the basis for his alleged identification of Ryan; The State failed to disclose that Kim Bennett ("Bennett") was interviewed and told police that she witnessed Ryan and Erickson leave the bar at approximately 1:30, get into Ryan's car, and drive off; and, J.SC) Wei 33590 LUZ '09 alelladdb' The State failed to disclose that Michael Boyd the last person to see Heitholt alive, was interviewed and provided information to police that established the timeline proving that the two white individuals at the scene could not have committed the murder. Boyd placed himself at the murder scene at the time of murder, and this direct evidence connecting him to the crime would have allowed the defense to introduce evidence of Boyd as a suspect. 5. At the time Ryan's jury was selected Lincoln County employed an opt out procedure which allowed otherwise qualified jurors to pay a fee and perform community service in lieu of jury duty. As a result of this newly discovered evidence, Ryan has established his actual innocence by clear and convincing evidence. Moreover, the prosecution's knowing use of perjurcd testimony subverts the truth-seeking process and entitles Ryan to relief. Likewise, the failure to disclose material exculpatory and impeachment evidence constitutes a due process violation. Finally, the jury selection procedures used by Lincoln County denied Ryan his fundamental right to have a jury selected in conformity with jury selection statutes and further warrants habeas relief. J.SC) Wei 33590 LUZ '09 319||3dd'c' REASONS FOR GRANTING THE WRIT CLAIM ONE THE RECANTATIONS OF JERRY TRUMP AND CHARLES ERICKSON CONSTITUTE NEWLY DISCOVERED EVIDENCE THAT ESTABLISH ACTUAL INNOCENCE. RYAN HAS THUS MADE A CLEAR AND CONVINCING SHOWING OF ACTUAL INNOCENCE THAT UNDERMINES CONFIDENCE IN THE CORRECTNESS OF THE JUDGMENT In State ex rel, Amrizze v. Roper, 102 541 (Mo. banc 2003), the Missouri Supreme Court held that a freestanding claim of actual innocence is cognizable in Missouri state habeas proceedings even absent any constitutional violation. In order to obtain relief based on such a claim, a petitioner must make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment. Id. at 543. The "clear and convincing" burden is less than "beyond a reasonable doubt" but heavier than a "preponderance of the evidence." Evidence is clear and convincing when it "instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact Iinder's mind is left with an abiding conviction that the evidence is true." In'. at 547-48. The Court applied these principles to the evidence presented by Joseph Amrinc. In Amrfne the Court held that although the evidence at trial was constitutionally sufficient to support the conviction, there was significant evidence indicating Amrine's innocence from the beginning, such as the lack of physical evidence linking Amrine to the murder. "Instead, Amrine was convicted solely on the testimony of three fellow inmates, each of 20 J.SC) Wei 83590 LUZ '09 alelladdie' whom have now completely recanted their trial testimony." Id. at 548. The Court concluded, "This case thus presents the rare circumstance in which no credible evidence remains from the first trial to support the conviction. . . . As such, confidence in his conviction and sentence are so undermined that they cannot stand and must be set aside." 1d.at548~49. As in Amrine, all of the evidence against Ryan has been legally and factually refuted by clear and convincing evidence. The prosecution's case against Ryan consisted entirely of Ericl