### FILED OCTOBER20, 2015 In the Office ofthe Clerk ofCourt WA StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Personal Restraint of ) ) No. 31955-5-III ) KEVINLEEHILTON, ) ) Petitioner. ) UNPUBLISHED OPINION ) SIDOOWAY, C.J.

- Kevin Hilton seeks relieffrom personal restraint inthe form of

a life sentencewithout thepossibility ofparole imposed for his 2008 BentonCounty conviction oftwo counts ofaggravated first degree murderinthe shootings ofhis landlordsLawrence and Josephine Ulrich. Mr. Hiltonwas originally convicted ofthe murders in 2003. Those convictions werereversed onappeal whenthis courtruled that incriminating gun shell evidence and other items including computers were seized from Mr. Hilton's homepursuantto aninvalid searchwarrant. See State v. Hilton, 131 Wn. App. 1020 (2006), review denied, 158 Wn.2d 1027 (2007). Afterhewas again convicted onretrial, Mr. Hilton filed a direct appeal and this court affirmedthejudgment and sentence. See State v. Hilton, 164 Wn. App. 81,261 P.3d 683 (2011), review denied, 173 Wn.2d 1037 (2012). Thistimelypetition follows.No. 31955-5-III In re Pers. Restraintof Hilton

Mr. Hilton, who is represented by counsel, raises four grounds for reliefin this petition: (1) the State violated due process underBrady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide the defense with material exculpatory evidence before trial; (2) he was denied dueprocess by the State's knowing presentation of, andreliance on, false and misleading evidence to thejury; (3) hewas denied effective assistance ofcounsel; and (4) he was denied his constitutional right to present a defense when the courtprohibited him from presenting evidence that the victims' daughter, Lisa Ulrich, was the real killer. Mr. Hilton has filed a companion motion to disqualifY the Benton County prosecutor and members ofhis office from representingthe State in this petition and any potential reference proceedings, as well as a motion for discovery and for an evidentiary hearing. Thepetition and motions were referred to this panel for determination. RAP 16.11(b). We deny Mr. Hilton's motions and dismiss his personal restraint petition. FACTS The facts are largely repeated from the appeal opinion, with additions as relevant to the claims raised in this petition. I The Ulrichs' adult daughterLisa discovered her

I We granted a motion by Mr. Hilton to incorporate the record from the second direct appeal, cause no. 26899-3-III, into this petition; citations to a report ofproceedings are to the report ofproceedings for that appeal. 2No.**31955~5-II1** In re Pers. Restraintof Hilton parents' bodies in their Richland home shortly after 9:00 a.m. on March 21, 2002. Both had been shot at close range by a .45 caliber weapon. There was no sign offorced entry 

# I to the home. Theirwallets were missing. Detectives found three .45 caliber "A-Merc" brand shell casings at the murder scene that a fireanns expert determined were all fired from the same gun. Five.45 caliberbullets were recovered-three from the murder

scene within the home and two from Josephine Ulrich's body. The othertwo shell casings were never found. 

# I Officers and a paramedic who responded to the scene observed a partial boot or 

# I shoe print in grease and several bloody partial shoeprints leading from a pool ofblood on 

# I f the carpet about five feet inside the home's tile entryway. The victims' bodies were 

# I**~** visible from the entryway. Lisa Ulrich testified she took only one step inside the door and saw the bodies and did not go further inside, although physical evidence indicated 

# I further entry may have been necessary to see the bodies. The Ulrichs lived alone and were last seen alive in theirhome on the evening of March 20 whenLisa and her children visited. They arrived around 4:30 p.m. and left between 5:30 and 6:00 p.m., when the Ulrichs were about to eat dinner. Autopsies revealed thatthe victims died from gunshot wounds inflicted within a few minutes to three hours afterthey ate dinner. The Ulrichs were longtime landlords and owned sevenrental properties. One of theirtenants was Kevin Hilton, who lived 1.6 miles away. Affixed to Mr. Ulrich's hand 3No. 31955-5-III In re Pers. Restraint of Hilton

when his body was discovered was a yellow sticky note folded to conceal an original rent receipt dated March 20. The receipt, signed by Josephine Ulrich, was made out to Kevin Hilton inthe sum of$3,475, representing the exacttotal ofhis several months' delinquent rent. The receiptbook was never found. The sticky note concealing the receipt remained in Larry Ulrich's hand despite blood evidence showinghis body was dragged to to 12 feet by the murderer. A telephone handset with callerID was missing from the kitchen, closeto where thebodies lay. It was never found. Another caller ID box was kept upstairs. It showed that the last call onMarch 20 was from Kevin Hilton at 6:42 p.m. A file folder on top of the refrigerator contained an original three-day payrent orquit notice preparedto Mr. Hilton by Josephine Ulrich onMarch 15,2002. LisaUlrich and her sisterJennifer (who lived out ofstate at the time ofthe murders) were familiar withtheir parents' practices when acceptingrentpayments. Their motherwouldtypically issue a receipt only to renters making a cash payment inperson. Thosepaying by check received a receipt only ifthey asked for one. In mostcases ifa renterwanted a receipt they would cometothe Ulrichs' house and drop offthe payment. Jennifer and Lisa bothtestified thatthe receipt book currently in use was kept openly on top ofthe refrigerator. Police were able to contact all ofthe Ulrichs' tenants onMarch 21 except for Mr. Hilton. Officers finally spoke with him at his home the next day. Asked about his 4No. 31955-5-II1 In re Pers. Restraintof Hilton

whereabouts on the night ofthe murders, he told officers hehad shopped for groceries at WinCo, returned the bookHard Time to the Richland library, and thenplayed volleyball at Hanford High School from 8:30 to 10:30 p.m. Hetold them he owedthe Ulrichs $3,475 in back rent, buthad reached a payment arrangement with them by telephone on the evening ofthe murders. He saidhe telephoned the Ulrichs between 6:00 and 6:30 p.m. that day andthey left a return message between 7:00 and 7: 15 p.m. while he was out. He said they agreed to his proposal for paying back rent. He said he erased the message. When asked about firearms, Mr. Hilton said he owned three rifles and showed themto the officers. They noticed ammunition boxes, shell casings and reloading equipment inhis basement. He denied currently owning any handguns but described four that he owned in the past, includingtwo .45 caliberNorinco handguns. He had participated in competitive shooting events in the past. He said he sold one Norinco to DirkLeach and the otherto an unnamed individual at a Walla Walla gun show 6 or 8 months before March 22. Police were only able to trace the gun sold to Mr. Leach, and testing showed it was not the murder weapon. See State v. Hilton, 164 Wn. App. 81, 86 n.3, 261 P.3d 683 (2011). When asked where he was on March 21, Mr. Hilton said he went to Mattawa (about 51 miles from Richland alongthe Columbia River) to sell primersto a guy, "VC,"whose address and telephone numberhe did not have.

5No. 31955-5-111 In re Pers. Restraint of Hilton

On March 25, a detective recovered an envelope from the mail addressed to Larry Ulrich from Mr. Hilton's return address that was postmarkedMarch 21,2002. The envelope contained a promissory note from Mr. Hilton dated March 19,2002, stating he wouldpay the Ulrichs $2,000 plus interest on or before September 1, 2002. The envelope also contained a letterto Larry Ulrich dated March 20, thanking him for his understanding and summarizing that Mr. Hilton owed $3,475 in back rent and penalties, $2,000 would be paidby note, and the $1,475 balance would be satisfied by work credit at $12 perhour. Jennifer Ulrich testified that her father had allowedrenters, including Mr. Hilton, to work for credit. But both Ulrich sisters testifiedthat based upon theirknowledge of theirparents' rental practices, they would not have made the type ofagreement written up by Mr. Hilton. Both sisters doubted they would allow Mr. Hilton to, in essence, stay another six months rent free when he already owedthem $3,400. Thepolice investigation uncovered only one gun shop (Schoonie's Rod Shop in Benton City) and no other retailer or gun show seller in the areathat stocked the very
uncommon "A-Mere"brand of.45 caliber ammunition between 1994 and 2002. Schoonie's' owner Barbara Schoonover testified she stocked a total of74boxes during that time period and kept all sale and purchase records. She sold Mr. Hilton 28 ofthose boxes in May-June 1994, as well as a .45 caliberNorinco handgun. She was certain that

6No. 31955-5-111 In re Pers. Restraintof Hilton

the shell casings found in the Ulrichs' home bore the samehead stamp and were the same kind of.45 caliber "A-Merc" ammunition that she sold Mr. Hilton. Evidence was introduced at trial that 

### Mr. Hilton did not appear on the WinCo store'svideo system showing everyone who entered or exited the building onMarch 20. Library records also showed that Mr. Hiltonhadreturned Hard Time on March 19 (not March 20), and that he nextused the library onMarch 21, whenhe returned two books and checked out another book. His volleyball teammates confirmed he arrived right at the 8:30 p.m. start time, which was late for him because he typically arrived about 15 minutes early to warm up. He told his teammates he had to clean up garbage that spilled in his kitchen so his cat wouldn't get into it. Evidence was introduced that the mostrecent gun show in Walla Walla had taken place 14 months before the killings, not 6 to 8months earlier as claimed by 

### Mr. Hilton. With regard to Mr. Hilton's claimed Mattawatrip, law enforcement authorities throughout the region could not identity anyone using the name "VC." The parties presented conflicting expert testimony on whetherMr. Hilton's size 12Yz-13 feet could have fit into the shoes that left the partial bloody footprints. The State's forensic scientist opined based on a footprint taken from Mr. Hilton that his foot could have fit inside the shoe that made the prints. The defense presented testimony from Donald Short, president ofMr. Hilton's Internetprovider. Duringthis testimony, the court admitted evidence showing the 7No. 31955-5-111 In re Pers. Restraint of Hilton following times ofInternet usage onMr. Hilton's computers onthe evening ofMarch 20, 2002: 5:42:12

- 5:59:17 p.m. 6:20:13

- 6:20:31 p.m. 7:41 :32

- 7:41 :42 p.m. 7:58:35

- 8:10:24 p.m. 10:41:17

- 10:45:36p.m. Ex. 490. While Mr. Shorttestified that the Internet was in use at Mr. Hilton's residence at these times, he acknowledged on cross-examination thathe could not say for certain that a human was doing it "because you can automatic such a thing." Report of Proceedings (RP) (Feb. 7,2008) at 3261. He explained, "Ifyou setyour email to check periodically, especially on a dial-up connection, it can dial it in, do its thing, and then eventually it will time out." Id. Defense lawyers asked Mr. Short onredirect aboutthe short logons for 8 seconds at 6:20 p.m. and 10 seconds at 7:41 p.m., and Mr. Short testified thatthey were most likely human contact, such as an inadvertent click ontothe Internet or a quick logon to check e-mail, whereas an automated logon would take longer. He was never asked ifthe 7:58:35 to 8:10:24 p.m. access was most likely human contact

or automated. Mr. Hilton did not testifY at the first trial, buttook the stand in his secondtrial and denied killing the Ulrichs. He gave alibi testimony as to his whereabouts onMarch 20. He claimed he went to Albertsons at about7:00 p.m., then bought gas at a Conoco station, and then wentto the library shortly after 7:30 p.m. and returned two paperbacks. 8No.31955-5-III In re Pers. Restraintof Hilton

He deniedtelling officers that he wentto Wineo, but admitted he did not tell them he went to Albertsons. He corrected his original statement about his stop at the library, testifying thathe wentjustinside the doors to the paperbackracks for only a few seconds and returned two books. He claimed that his original statement to a detective on March 26, thathereturnedHard Time onMarch 20, was his best guess at the time, but he later realized he was mistaken about the date. He claimed tohavereturned home and spenttime on the computerbefore volleyball. He admittedthat he never mentionedthe spilled garbage that delayed his arrival at volleyball to detectives because the topic never came up and he considered it unimportant. He claimedthathe and Josephine Ulrich discussed his paymentproposal for the rent arrears during the 6:42 p.m. call showing on the Ulrichs' upstairs caller ID. His earlier statementto the police that he had called between 6:00 and 6:30 p.m. wasjustan estimate. He claimedthathenever received a 3-day notice from Ms. Ulrich. His letter describing thepaymentplan was mailedto the Ulrichs with a promissory note on March 21. Mr. Hilton further testified that he owned no handguns at time ofthe murders. He admittedto buying "A-Merc" ammunition and a .45 caliber Norinco handgun from Barbara Schoonoveryears earlier. Mr. Hilton held a yard sale a month afterthe murders,

on April 26, 2002. As bearing on Mr. Hilton's credibility, a State'switness testifiedthat 

### 9No. 31955-5-III In re Pers. Restraintof Hilton

he purchased a .45 caliberhandgun and a .22 caliberrifle at that yard sale. The witness positively identified Mr. Hilton in court as the seller ofthe guns, although it was later shown in expert firearms analysis that the .45 caliber was notthe murder weapon. 

### Mr. Hilton denied selling any gun at his April 26 yard sale. He saidhe sold his last .45 caliberhandgun at a gun show in Walla Walla in February 2001 and explainedthat he had previously only estimated that the gun show was six to eight months earlier. He was unable to describe the purchaser ofthe gun in his initial trial testimony, but when he resumed the standthe next day, he described the person as a white male with brownhair who was shorter and more slightly built than him. He admitted that the Ulrichs only gave him a receipt when he showed up in person andpaid his rent in cash. Thejury disbelieved Mr. Hilton's alibi defense and found him guilty ofthe murders. Other facts will be related as pertinentto the resolution ofMr. Hilton's claims. ASSERTED GROUNDS FORRELIEF PersonalRestraintPetition ReviewStandards To obtain reliefin a personal restraintpetition (PRP), Mr. Hilton must show actual and substantial prejudice resulting from alleged constitutional errors, or for alleged nonconstitutional errors a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraintof Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To avoid dismissal, the petition must be supported by facts and not merely self-serving or conclusory allegations. 

### Id. at 813-14. The supporting evidence must be based on "more 10No. 31955-5-II1 In re Pers. Restraint of Hilton

than speculation, conjecture, or inadmissible hearsay," and a failure to meet this burden calls for dismissal ofthepetition. In re Pers. Restraintof Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Ground 

### 1: Brady claim Mr. Hilton contends the State violated his right to due process underBrady, 373 U.S. 83, by failing to providethe defense with material exculpatory evidence before trial, that being materials pertinentto usage ofthe Ulrichs' computers onthe night ofthe murders. UnderBrady, the prosecution has an affirmative duty to disclose evidencethat is favorable to a defendant. Brady, 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419, 432, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). "[T]here are three components ofa true Brady violation: [t]he evidence at issue mustbe favorable to the accused, either because it is exculpatory, orbecause it is impeaching; that evidence must have been suppressed by the State, either willfully orinadvertently; and prejudice must have ensued." In re Pers. Restraint of Stenson, 174 Wn.2d 474, 486-87, 276 P.3d 286 (2012) (quoting Strickler V. Greene, 527 U.S. 263, 281-82,119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). With respect to the third component, the "materiality ofthe evidence" and "prejudice" are spoken of interchangeably. Stenson, 174 Wn.2d at 487. To prove materiality, a petitionermust show'" there is a reasonable probability that, had the evidence been disclosed to the defense, the result oftheproceeding would have been different.'" Id. (internal quotation 11No. 31955-5-111 In re Pers. Restraintof Hilton

marks omitted) (quotingKyles v. Whitely, 514 U.S. at 433-34). A Brady violation is shownwhen "[t]he favorable evidence couldreasonably betaken toputthe whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435; Stenson, 174 Wn.2d at 487. Butifthe defendant using reasonable diligence couldhave obtainedthe information, there is noBradyviolation. State v. Mullen, 171 Wn.2d 881, 896,259 P.3d 158 (201l). In April 2002, the RichlandPolice Department asked Kennewick Police Detective Simon Mantel to collect and analyze two computers from Mr. Hilton's home (computers A and B) and two from the Ulrichs' home (computers C and D). Detective Mantel produced a 6-pagereport ofhis computer analysis on September 19,2002. In a discussion pertainingto computer C, which was in the Ulrichs' downstairs family room, Detective Mantel stated on page 5 ofhis report: "Priortothe power outage,2user initiated activity ended at 8:07:33 PM on 3/20/02." Br. in Support ofPRP, Appendix C at 5. Mr. Hilton contends that evidencethat user initiated activity onthe Ulrichs' downstairs computer continued until 8:07 p.m. is critical exculpatory evidence given corroboration by his teammatesthathe arrived for volleyball at 8:30 p.m. There is no

2A poweroutage occurred at several neighboringhomes, including the Ulrichs', at approximately 1:00 a.m. on March 21, 2002. The utility company restored thepower after 2:00 a.m. No cause for the outage was ever determined. 12No. 31955-5-III In re Pers. Restraint of Hilton dispute that the State provided the defense a copy ofthe Mantel report before Mr. Hilton's first trial. In 2003, Detective Mantel was called to active military duty and did not return to the Kennewick Police Department. The State listed him as a witness for the first trial. He was not called to testify. In December 2002, Prosecutor Andy Miller asked Kennewick Police Detective T.D. Scott to provide Detective Mantel's work from computer C to Sergeant Wehner of the Richland Police Department and lD. Fluckiger ofBattelle, a private company that manages a national laboratory for the U.S. Department ofEnergy in Richland. According to Detective Scott's report dated December 24, 2002, Mr. Fluckigerrequested the EnCase Evidence file copy ofcomputer C as designated in Detective Mantel's report. As with Detective Mantel's report, the defense received Detective Scott'sreport in discovery. On February 4, 2003, Mr. Miller wrote in a letter to defense counsel that the State mayormay not be able to obtain Detective Mantel's presence at trial, but that his office

was working with Battelle to see ifits personnel might be able to review the hard drives and provide the testimony that would have been provided by the detective. Mr. Miller's letternotedthat defense counsel had received earlier notice ofthis contingency in discovery. On February 28,2003, Mr. Miller wrote in another letterto defense counsel explaining logistical limitations on dates that DetectiveMantel could testify and requesting a stipulation that the State could call him out oforder during the defense case. 13No. 31955-5-111 In re Pers. Restraint of Hilton

There was no further mention ofMr. Fluckiger. Neitherparty called Detective Mantel or Mr. Fluckiger as a witness at either trial, nor did eitherparty seek to introduce evidence ofusage or activity on the Ulrichs' computers. In support ofthe presentpetition, Mr. Hilton has filed a declaration from Mr. Fluckiger dated June 27, 2013, in which he states that he met with defense investigator Winthrop Taylor, who showedhim Detective Scott'sDecember 24, 2002 police report referringto Mr. Fluckiger as having been asked to review Detective Mantel's work on the computers. Mr. Fluckiger states in the declaration that Battelle's legal department gave him permission to assist Mr. Miller in determining the nature and quality ofDetective Mantel's work on the condition Mr. Fluckigerwouldnot testifY as an expert witness. He met with Mr. Miller and a Kennewick police representative. He states that Mr. Miller gave him a report thatreferred to EnCase forensic software and a single CD and asked him to explain whatthe report said in terms Mr. Miller couldunderstand. Mr. Fluckiger reviewed the disk and felt comfortablethat the information Detective Mantel had provided was "fairly sound," buthe never went into the EnCase files to determine what

was there. Br. in Support ofPRP, Appendix E, FluckigerDeclaration at 2. Instead, he just looked at Detective Mantel'spresentation and explained it to Mr. Miller. He recalls looking to see ifthe times between one computer and another computer correlated with

one another and concluded that they did, but he did not go back and do a personal evaluation ofthe original files. 14No. 31955-5-III In re Pers. Restraint of Hilton

Mr. Hilton alleges aBradyviolation based upon the fact that the State never informed the defense thatMr. Fluckiger had confirmed, in terms that Mr. Miller could understand, the soundness ofDetective Mantel'sreport. Mr. Hilton's characterization is that the State "possessed Detective Mantel'sreport, and knew his conclusions hadbeen confirmed by a second expert at Battelle: someone was usingthe Ulrichs' computeruntil 8:07 p.m. on the nightthey died-the sametime Mr. Hilton was on his own computer at his own home." Pet'r's Reply Br. at 31. Mr. Hilton contends thathadthe State disclosed the Fluckiger confirmation, defense counsel would havetaken another look at Detective Mantel's report, and specifically checkedhis workon computer C. Detective Mantel's conclusions were notsuppressed While forced to admit that the defense receivedthe Mantel report, the Scott report, and Mr. Miller's letters, Mr. Hilton likens his case to Stenson, 174 Wn.2d474, inwhich evidence was accessible to the defense but not in any meaningful manner. The evidence ofStenson's guilt for two murders was largely circumstantial, buttwo key pieces of evidence admitted at trial directly tiedhim to the shootings: (1) gunshotresidue (GSR) found inside the front rightpocket of jeansthat Stenson was wearing when officers arrived at his house, and (2) blood spatter onthe front ofthosejeansthat was consistent with one ofthe victim's bloodproteinprofile. Id. at478. Fifteen years afterhis conviction, postconviction counsel received (1) photographs taken beforethe testing of the pockets for GSR, showing a sheriffs detective wearing Stenson'sjeans with the right 15No. 31955-5-II1 In re Pers. Restraintof Hilton pocketturned out and showing the detective's ungloved hands, and (2) an FBI file containing the GSRtest results thatrevealed a person namedLundy, and notthe State's expertPeele, as Peele's trial testimony had implied, hadperformed the GSRtests atthe FBI laboratory. Id. at 479-80. A defense investigatorhad beenprovided with pretrial access tothe photographs during a meeting with RodEnglert, a State's expert. Mr. Englert-who hadbeen provided with the defendant's pants on April 14, 1994-hadturned thepockets out on that date to look for blood evidence. Id. at 480. Mr. Englert also recommended atthat time thatthepockets betested for GSR, which they were, six days later-qfierhaving beenhandled by the ungloved law enforcement officer. The State arguedthat ithad not suppressed the photograph because ithad been available tothe defense investigator from 

### Mr. Englert's file. But a trial court later found in a reference hearing that nothing in materials providedtothe defense team stated thatthe Englert examination had included turning thepockets out or anyonebeingungloved. Id. at 482. The appellate court agreed withthetrial courtthatthe fact that the detective puthis unglovedhand inthepocket before the GSRtesting '''shouldhave been disclosed.'" Id. at 490. Mr. Hilton contends that as with expertEnglert inStenson, the fact thatthe State did not intend to call Detective Mantel made it reasonable for the defense to conclude that he had nothing relevant tothe case and no further inquiry was needed. Mr. Hilton further asserts it wasreasonable for the defense to rely onthe State's constitutional 16No. 31955-5-II1 In re Pers. Restraint of Hilton requirement notto violate due process by presenting a theory when it possessed evidence that disproved thetheory. Mr. Hilton asserts that it was the Fluckiger confinnationthat would havepointed defense counsel to the truth about the use ofcomputer C by a person at 8:07 p.m., thereby rendering it material for Bradypurposes and its withholding prejudicial. We reject Mr. Hilton's arguments. First, it is undisputed thatthe State disclosed Detective Mantel's reportto the defense before the first trial. Unlike the photographs in Stenson, whose significance arose from their timing-somethingnot apparent from the photographs-the significancethatMr. Hilton attaches to Detective Mantel's report is manifest in the detective's statement in the report that "userinitiated activity [on computer C] ended at 8:07:33 PM on 3/20102." Br. in Support ofPRP, Appendix C at 

### 5. Mr. Hilton points out that the information was among 2,000 pages ofdiscovery, the infonnation aboutthe activity on computer C was in a single sentence onpage 

### 5 ofthe report, and the State's witness summary for Detective Mantel stated only that he had examined Kevin Hilton's computer. Butthe State has no obligation underBrady to point the defense to specific documents within a larger mass ofmaterial that it has already turned over. Mullen, 171 Wn.2d at 896. Moreover, as the Mullen courtexplained: [W]here "adefendant has enough infonnation to be able to ascertain the supposedBradymaterial on his own, there is no suppressionby the government." [UnitedStates v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)]. '''[W]herethe defendant is aware ofthe essential facts enabling him to take advantage ofany exculpatory evidence, the Government does 17No. 31955-5-II1 In re Pers. Restraint of Hilton

not commit a Bradyviolation by not bringingthe evidence to the attention ofthe defense.'" Raleyv. Ylst, 470 F.3d 792,804 (9th Cir. 2006) (quoting UnitedStates v. Brown, 582 F.2d 197,200 (2d Cir.l978)). Mullen, 171 Wn.2d at 896 (footnote omitted). Besides having the Mantel report, the defense had Detective Scott'sreport revealing the prosecutor's interest in computer C. The Scott report stated thatBattelle's Mr. Fluckigerhad been askedto review the Mantel report with respectto the "workDet. Mantel had done on 'ComputerC'" and thatMr. Fluckiger needed and was provided with "theEncase[ ] files for Computer C." PRP ofHilton, HoltDeclaration, Exhibit 3 at 1. The prosecutor's subsequent lettertothe defense stated that his office was working with Battelleto see ifits personnel might be able to review the hard drives andtestify to whatDetective Mantel would have testified to. The defense had the essential facts to which itnow attaches significance. We also observe, as relevant to this ground for reliefand the next, that it is a mischaracterization oftheMantel reportto say that it states or opines that someone was physically using the Ulrichs' downstairs computer at 8:07 p.m. on March 20. Itdoes not. Mr. Hilton supports his petition with an unsigned "declaration" from Detective Mantel, which was prepared based upon an interview ofDetective Mantel by defense investigator Winthrop Taylorin 2012. Mr. Taylor states thatthe unsigned declaration is an accurate account ofmatters Detective Mantel would testify to ifcalled. Detective Mantel's unsigned declaration explains the meaning ofthe "userinitiated activity" he was looking 18

### No. 31955-5-III In re Pers. Restraintof Hilton

for in 2002 as "the last activity on the computer that was not associated with any automated recurring computer initiated programs." Pet'r's Br. in Support ofPRP, Appendix D, at 3. He states that making that determination is a subjective expert opinion that depends on an examiner's expertise and training in computer forensics. Heprepared his 2002 report in anticipation that he would eitherbe deposed by a defense expert or called to testify in court and his report sat on top ofother files thatwould have allowed him, at the time, easy access to the underlying data from which he drew his conclusions. Although he was provided by Mr. Taylor in 2012 with a CD that appeared to contain his report, he was unable to rebuild the supporting documents from the disk. While he recalls it was importantto make surethere was not some isolated recurring computer generated program or non-user activity before he reached his conclusion that the activity

on computerC was user initiated, no underlying data is presented or explained. The report's subjective opinion that user initiated activity ended at 8:07 p.m. therefore does not shed light on when the user initiated activity began, the time ofthe last certain human contact with the computer, orwhetherthe computer merely tiined-out at 8:07 p.m. after aperiod ofhuman inactivity. Unlike in Stenson where material exculpatory evidence was suppressed by the State, the Mantel report was never suppressed. In addition to full disclosure ofthe core evidence-thereport-the State notified the defense that it was exploring whether Battellewould be able to provide an expert to testify to the matters otherwise expected 

### 19No. 31955-5-III In re Pers. Restraintof Hilton

from Detective Mantel, disclosed a report revealing that it had an interest in Detective Mantel's work on computer C, and provided a report identifying Mr. Fluckiger by name. The Fluckiger assessmentandexplanation was notmaterial Mr. Hilton is correct that the State never informedthe defense ofwhat 

### Mr. Fluckiger ultimately told Mr. Millerin 2003. ButMr. Hilton cannot demonstrate that the Fluckiger assessmentwas material. Mr. Fluckiger could add nothing, because he did not examine the actual files in the computer and did not look atthe hard drive. He did no analysis ofhis own and never issued a report. He only looked at Detective Mantel's presentation and confirmedthathe felt comfortablethat the information Detective Mantel had provided was fairly sound. 3 The State merely failed to disclose that, havingbeentold by Battellethat he couldnot testify as an expert, Mr. Fluckiger spoke with Mr. Miller, told Mr. Miller what he understood the detective's reportto say, and expressedhis view that the report appeared

3 Although not dispositive ofthe petition, we reject as unsupported the State's alternative theory that DetectiveMantel's report is not material for Bradypurposes because he may have failed to account for the April 7, 2002 changeto daylight savings time when he did his report in September 2002. The Stateposits that ifDetective Mantel madethis mistake in failing to realizethe computer clock had set itselfahead one hour, the true time that user initiated activity ended would have been 7:07 p.m. on March 20, thus fitting well within the 6:42 p.m. to 7:41 p.m. timeframe for Mr. Hilton to have committed the murders. ButDetective Mantel's report indicates he examinedthe computer on April 2, 2002-priorto daylight savings time taking effect onApril 7. Detective Mantel's report also indicates he confirmedthe computertime with satellite time. Pet'r's Br. in Support ofPRP, App. Cat3. 20No. 31955-5-III In re Pers. Restraintof Hilton competently prepared. This inconsequential assessment ofinformation available to the defense could not reasonably putthe prosecution ofMr. Hilton in such a different light as to undermine confidence in the verdict. In a statement ofadditional authorities, Mr. Hilton calls our attention to Lapointe

v. Commissioner o/Correction, 316 Conn. 225, 112 A.3d 1(2015), a rape/murder/arson conviction where thepetitionerreceived a new trial in statehabeas proceedings due to the prosecution'sBradyviolation for withholding the lead detective (Ludlow's) note referencingthe expert opinion ofstate fire investigators about the particular timeframe in which the fire could have started. The Ludlownote was not disclosed to defense counsel before trial. Lacking the exculpatory information, counsel did not call a witness (Martin) who would have testified that the defendant was home watching television with her during the entire relevant timeframe. The defendant was thus deprived ofevidence "establishing a complete andpotentially compelling alibi [defense], thereby gravely undermining the [validity] ofthe verdict" and entitling him to a new trial. Id. at 349. Lapointe is also nothelpful to Mr. Hilton. Unlike in that case, where expert opinion was presentbut suppressed underBrady, the Mantel report was not withheld from Mr. Hilton. And unlike inLapOinte, Mr. Hilton demonstrates no complete and potentially compelling alibi claim that he failed to present as a result ofa State nondisclosure.

21No. 31955-5-III In re Pers. Restraintof Hilton

Mr. Hilton fails his burden under Cookofshowing constitutional error in the form ofa due process violation underBrady. Ground2: Denialof DueProcess by the State's Knowing Presentation of andReliance on False andMisleadingEvidence to the CourtandJury Mr. Hilton next contends thatthe Statepresented known false and misleading evidence and thus violated his right to due process in two ways: (1) failing to inform the juryofthe critical 8:07 p.m. usage ofUlrichs' downstairs computer when presenting its timeline for the murders, and (2) falsely informingthe trial court (and this court in the direct appeal) that a 2008 DNA4 test excluded Lisa Ulrich as the source ofDNA on the shell casings. It is fundamental that the FourteenthAmendmentto the United States Constitution cannottolerate a state criminal conviction obtained by knowing use offalse evidence or improper manipulation ofmaterial evidence. UnitedStates v. Bagley, 473 U.S. 677, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Giglio v. UnitedStates, 405 U.S. 150,92 S. Ct. 763,31 L. Ed. 2d 104 (1972); Miller 

### v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173,3 L. Ed. 2d 1217 (1959);Alcorta

v. Texas, 355 U.S. 28, 78 S. Ct. 103,2 L. Ed. 2d 9 (1957); see also Troedel v. Wainwright, 667 F. Supp. 1456, 1458 (S.D. Fla. 1986) (term "false evidence" includes

4 Deoxyribonucleic acid. 22No. 3l955-5-III In re Pers. Restraintof Hilton

the "introduction ofspecific misleading evidence important to the prosecution's case in chief[or] the nondisclosure ofspecific evidence valuable to the accused's defense.") (quotingDonnelly v. DeChristoforo, 416 U.S. 637,647,94 S. Ct. 1868,401. Ed. 2d431 (1974)). A new trial is required ifthe false evidence could in any reasonable likelihood have affected the verdict. Giglio, 405 U.S. at 153;Napue, 360 U.S. at 271; see Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991). Ulrich Computer Usage anda Murder Timeline Mr. Hilton contendsthe State violated his right to due process by presenting a knowingly inaccurate theory that he killed the Ulrichs before 7:41 p.m., even though the State was aware from Detective Mantel's report and the confirmation from Mr. Fluckiger that user initiated activity on the Ulrichs' downstairs computer continued until 8:07 p.m. Mr. Hilton asserts that due process was violated by the State's failure to disclose the Fluckiger confirmation to the defense and its presentation ofthe false impression that the Ulrichs were dead before 7:41 p.m. He insists thatthe fact someone else was using the Ulrichs' computer while he was at his home on his own computer, and after the State theorized the Ulrichs were dead, puts the case in an entirely different light. In addition to arguingthe Ulrich computer evidence is not material but only speculative, the State argues that it did not assert thatthe killings occurred before 7:41 p.m.; rather, it left the timeframe open, relying on Mr. Hilton's discredited explanations for his whereabouts for most ofthe evening and night ofthe murders. 23No. 31955·5·111 In re Pers. Restraint of Hilton

The record bears out the State's position. In opening statement, the prosecutor did not suggest a particulartimeframe for the murders. He said the evidence would show Mr. Hilton had plenty oftime to murder the Ulrichs after Lisa Ulrich and her children left during dinnertime and before he arrived athis volleyball game. In closing argument, the State argued in general terms that Mr. Hilton had plenty ofopportunity to commit the murders given thetimeframe in which the Ulrichs died according to the pathology experts. Itargued broadly that "[d]uringthe period oftime when Larry and Jo Ulrich were most likely murdered, the defendant cannot account for his whereabouts. And then the defendant can't account for his whereabouts after 10:45 p.m." RP (Feb. 13,2008)at 3816·17. Theprosecutor also suggested that Mr. Hilton mighthave been at the Ulrich homeboth before andafter volleyball on the night ofthe murders, asking, "Didthe defendant go back? Very, very possible." Id. at 3817. The prosecutor emphasized

### Mr. Hilton's failed grocery store and library alibis, his inability to provehis whereabouts after the 6:42 p.m. telephone call to the Ulrichs, and his explanationto volleyball teammates (but not topolice) ofhis unusual lateness due to a garbage spill in his kitchen. In rebuttal closing, the prosecutortold thejurythat the Ulrichs were murdered on the night ofMarch 20, and "[y]oucan set any time you want from maybe 6:00 to 10:00, according to Doctor Selove andDoctorReay, but that'swhen they were murdered." Id. at 3896.

24No. 31955-5-111 In rePers. Restraintof Hilton

It was only defense counsel whoproposed timeframes to thejuryin orderto shoot them down. During opening statement, defense counsel contended that the State would be stuck arguing thatthe murder occurredroughly between 7:40 p.m. and 8:30 p.m., with Mr. Hilton getting offthe Internet, scrambling over to the Ulrichs, shooting them, running around the house and grabbing things, dragging bodies around and then calmly showingup at volleyball at 8:30 p.m. In its closing argument, the defense focused on a different timeframe, arguing that the 59-minuteperiod from Mr. Hilton's 6:42 p.m. telephone call to the Ulrichs until his computer logon at 7:41 p.m. was insufficient time for him to commit the murders, clean up, and getready to goto volleyball. Defense counsel argued that Mr. Hilton was home on the Internet at 7:41 p.m. and again at 7:58 p.m. for over 10 minutes, and that aperson whojustcommitted murder would notbe sitting casually on the Internet for 10 minutes before cleaning up spilled garbage and walking out the door to volleyball. Thus only the defense, not the State, argued that the killings had to occur either before or after 7:41 p.m. In his reply brief, Mr. Hilton is forced to concede that the State did not commit to

a timeframe for the murder in the second trial. Buthe points out that the State did commit to a 6:42 p.m. to 7:41 p.m. timeframe in the first trial and suggests that "perhaps" the State "backed away from [the] time commitment" "because the prosecutorrealized this time was impossible given the evidence itpossessed." Pet'r's Reply Br. at 31. 

### Mr. 25No. 31955-5-III In re Pers. Restraint of Hilton

Hilton persists in arguing that the State created false inferences it knows were not possible, even ifno specific piece ofevidence and no specific argumentwas false. Pet'r's Reply Br. at 27. YetMr. Hilton is unable to direct us to eventhat evidence or argument, general orspecific, that he contends created false inferences. Essentially, Mr. Hilton'sposition is that once the State invited thejuryto consider the entire 6:00 p.m. to 10:00 p.m. timeframe, it was obliged to affirmativelypresentthe jurywith Detective Mantel's conclusion about user initiated activity and concede that for

some time between 7:58:35 p.m. and 8:07:33 p.m., some human being otherthan Kevin Hilton was using the downstairs computer at the Ulrich home at the same time that Kevin Hilton was at his own home, using the Internet, thereby making it impossible for 

### Mr. Hilton to have committed the murder before his 8:30 p.m. arrival at volleyball. The State's response offers several reasons why the evidence does not require any such concession. Itpoints out first, as we previouslytouched upon, thatDetective Mantel's conclusion that user initiated activity onthe Ulrichs' downstairs computerended at 8:07:33 p.m. does not mean that someone was physically at the computer until that time. Resp. to Pers. Restraint Pet. at 19 (Resp.) ("[User initiated activity] does not provide a definite time at which a person stepped away from the computer.... Detective Mantel's report does not concludethat an individual was definitely on the Ulrich computer at 8:07:33 p.m."). 26No. 3 I955-5-III In re Pers. Restraint of Hilton
Itpoints out that Mr. Hilton might havebeen the person using the Ulrichs' computer after 8:00 p.m. Resp. at 21 ("Aftermurdering the Ulrich[s], the evidence shows that the defendant took incriminating evidence from their residence.

. .. Hemay have checkedthe Ulrich computer to see ifhe could find any obvious evidencepointing to him."). While Mr. Short, the defense computer expert, testified that a computer at Mr. Hilton'shome was engaged in Internet use from 7:58:35 p.m. to 8:10:24 p.m., the State points out that Mr. Short agreed that the use couldhave been automated; Mr. Hilton didn'tneed to be there.5 Resp. at 17 ("[The 7:58:35 log onto the Internet] was less likely to be human involved, according to the defendant's computer expert"); id. at 22 ("[N]o

5As Mr. Hiltonpoints out, theprosecutor stated at one pointduring his closing argument that, "Weknow [Mr. Hilton's] home at 7:41. We know that at 7:58 to 8:09 he's onthe [I]nternet." 

### RP (Feb. 13,2008) at 3816. Mr. Hilton argues in his reply brief that the prosecutor's statement in closing argument was a concession by the State andthat the doctrine of judicial estoppel now bars the State from making a directly contradictory factual assertion. Itcites no case holding that the State cannotrecognize the reality on appeal that evidence presentedto thejury supported findings different from those that it advanced in closing. Mr. Short'stestimony unquestionably allowed for the possibility that the Internet use on Mr. Hilton's computerbetween 7:58:35 p.m. and 8: 10:24 p.m. was automated. 

### RP (Feb. 7, 2008) at 3261,3268. Jurors who were paying attention to Mr. Short'stestimony could have analyzed the evidence withthat fact in mind notwithstandingthe prosecutor's single concession during lengthy closing arguments that Mr. Hilton was on the Internet at 7:58 p.m. (the closing arguments took most ofan afternoon and account for almost 100 pages ofthe report ofproceedings). Thejurors were instructed, "It is important

... for you to remember thatthe lawyers' statements are not evidence." 

### RP (Feb. 13,2008) at 3791. 27No. 31955-5-III In re Pers. RestraintojHilton

one, including the defendant's computerexpert, can state that the defendant was home between 7:41 and 8:30 p.m."). Itpoints out that given the short distances involved and the likelihood that traffic

was light, itwouldhave been possible for Mr. Hilton to leave his home at 8: 10 p.m., committhe murders, and still arrive at volleyball around 8:30 p.m. Resp. at 20-21 (Mr. Hilton "had sufficienttime to fire five shots at the Ulrich[s], make a quick search for incriminate[ing] evidence, [missing some, ... and] would havebeen able to appear within minutes at the volleyball game"). Mr. Hilton relies heavily on four cases: Miller v. Pate, 386 U.S. I;Alcorta v. Texas, 355 U.S. 28; Brown v. Borg, 951 F.2d 1011; and this court's opinion inState v. Martinez, 121 Wn. App. 21, 86 P.3d 1210 (2004). But in all ofthose cases, the defendants could point to false testimony known to the State, or false argumentby the State. 

### In Miller, the prosecutormade repeated references to the murder defendant's "bloody shorts"that were allegedly stained with blood matching the victim's bloodtype. The shorts were akey partofthe prosecution's case, yet they were not actually the defendant's shorts and the prosecutorknew at the time oftrial that it was not blood on the shorts, ratherpaint. The Courtheld thatthe prosecutor's knowing use offalse evidence violated the defendant's dueprocess rights and warranted reversal ofthe conviction. Miller, 386 U.S. at 5-7. 28No. 31955-5-III In re Pers. Restraintof Hilton

InAlcorta, the defendant was charged with murdering his wife while she sat in a
car kissing another man, Castilleja. Because Alcorta suspected thetwo were having an affair, he claimed the killing was murderwithout malice, but in a fit ofpassion. Castillejatestified for the State and denied any sexual relationship. Alcorta was convicted ofmurder and sentenced to death. Castilleja later provided a sworn statement admitting he had falsely testified at trial and thathehad in fact had sexual relations with the defendant's wife. Alcorta, 355 U.S. at 30. In habeas proceedings, the prosecutor admitted knowing ofthe perjury, withholding the information from Alcorta, and taking

no steps to have Castilleja testifytruthfully. The Supreme Court held that the prosecutor's failure to correctknown false testimony violated due process. 

### Id. at 31-32. In Brown, the defendant was convicted offirst degree felony murderbasedupon the prosecution's theory that he was involved in killing the victim during a robbery. A detective testified tohis opinionthatthe victim was killed during arobbery because a ring was found onthe ground, but his gold chains and wallet were missing. In closing, theprosecutor argued there was no testimony that any property ofvalue was found on the victim. Brown, 951 F.2d at 1013. In fact the prosecutor knew during trial, but did not informthe detective or defense counsel, thatthe victim's wallet and gold chains had been given to his relatives by hospital personnel, who presumably had discovered them on his person. 

### Id. at 1014. The court found reversible misconduct because the prosecutorwas "[p]ossessed ofknowledge that destroyed hertheory ofthe case," and "had a duty notto 29No. 31955-5-III In rePers. Restraint of Hilton

mislead thejury. Instead, she kept the facts secret in the face ofa long-standing rule of constitutional stature requiring disclosure, and then presented testimony in such a way as to suggestthe opposite ofwhat she alone knew to be true: that the wallet and chains had not been stolen in a robbery." Id. at 1015. In Martinez, 121 Wn. App. 21, a State's witness identified two guns used in a robbery as weapons the defendant had shown her in December 1999. The State determined during pretrial investigation that the witness could nothave correctly identified one ofthe guns because it belonged to a third party until October2000, but rather than informthe defense, the prosecutor dissembled in opening statement, telling thejurythat it was expected the witness would identify the guns in some fashion: "[S]he can'ttell you thatthese are the same guns, I think she will say that theyjustlooked the same." 

### Id. at 26. The prosecutor later notified the defense it would not question the witness about the gun lineup and itwas eventually revealed that the gun identified by the witness could not have been the same gun used in the robbery. Id. at 28. In upholding the trial court's dismissal ofthe charges for governmental misconduct under erR 8.3(b), this court ruled that substantial evidence supported the fact that the Statewaited so long to providethe exculpatory evidence to the defense as to be "repugnanttoprinciples offundamental fairness" and a violation ofdue process. Martinez, 121 Wn. App. at 35. The defendant was prejudiced in his right to counsel and

30No. 31955-5-III In re Pers. Restraintof Hilton

denied effective assistance becausethe late discovery compromised defense counsel's ability to adequately prepare for trial. 

### Id. at 34-35. Unlike the defendants inMiller, Alcorta, Brown, and Martinez, Mr. Hilton is unable to pointto any false ormisleading evidence or information thatwasrelied on, secreted, orproffered by the State. All he can show is that the Staterefused to draw or argue the inferences thathewould have drawn from the available evidence and chose not to offerDetective Mantel'stestimony orthe results ofhis computerreview. While every "prosecutoris a quasi-judicial officer" ofthe court, State v. Huson, 73 Wn.2d 660,663, 440 P.2d 192 (1968), charged with the duty ofensuringthat an accused receives a fair trial, the State was not required topresent both its own and the defense case. Mr. Hilton makes no showing, as is his burden under Cook, thatthe State misled thejurywith any false evidence or false inference. DNA ReportreLisa Ulrich Mr. Hilton next contends theprosecutor falsely informedthe court during the secondtrial that a 2008 DNAtest excluded Lisa Ulrich as the source ofDNAonthe shell casings. Duringtrial, Washington State Patrol Crime Laboratory scientist Charles Solomon testified that he testedthe three shell casings from the murder scene and found

no detectable DNA on anyone shell casing, butwas able to combine extracts from all three to obtain a very small sample. He concludedtheDNAcame from female sources, conclusively excluding Mr. Hilton. 

### Mr. Solomon said laboratory testerLisaTurpen 31No.31955-5-III In re Pers. Restraint of Hilton

couldpossiblyhave left her DNA on the sample during testing and he could not exclude her or other females with allele matches. He also found DNA consistent with Ms. Turpin'sprofile on an extract from one bullet found atthe crime scene. Mr. Hilton and the victims were excluded as a match for the DNA on that bullet. After Mr. Solomon'stestimony, and before Ms. Turpen testified, the State proposedto offer a January 28, 2008 DNA report completedby Ms. Turpen. When asked by the court for an offer ofproofofwhatwas new in this recent report, the prosecutor stated:Ms. Turpen did a DNA analysis ofJennifer Ulrich, Lisa Ulrich, and Carly Connell and compared theirDNAprofiles to the shell casings and the bullet Mr. Solomontestified aboutthis morning, and that she concluded that none ofthose three individuals contributedDNA to the shell casings or the bullet. RP (Feb. 1,2008) at 2670-71. The court denied admission ofthe report because ofits late disclosure to the defense. The prosecutor's offer ofproofwas mistaken. Ms. Turpen'sreport actually stated with reference to Jennifer Ulrich, Lisa Ulrich, and Lisa's daughter, Carly Connell, that no comparisons can be made to the trace DNAprofile oflimited genetic information obtained from the combined extract ofthe shell casings and the extract ofbullet 16. The State concedes that the offer ofproofwas mistaken and overstated the conclusions ofthe DNA report. Itpoints out that it was not attempting to mislead the trialjudge.

32No. 31955-5-III In re Pers. Restraintof Hilton

The offer ofproofwas made in connection with the State'srequest to offer evidence that was excluded, and Mr. Hilton does not assign error to the report's exclusion. His argument why the overstatement is reversible error is an attenuated one: he contends that it was "materialto the conclusion that defense counsel presented insufficient evidence to allow its theory thatLisa Ulrich was the murderer." Br. in Support ofPRP at 38. The offer ofproofwas not made in connection with any argument about the sufficiency ofevidence to support a third party perpetrator theory. In fact, it is the law of the case, based on this court's decision in the second appeal, that Mr. Hilton "never soughtto blame [Lisa Ulrich] for the killings and does not get to change his theory on appeal." Hilton, 164 Wn. App. at 98. While this court went on to hold in the second appeal that Mr. Hilton had not presented or offered sufficient evidence to blame Ms. Ulrich for the killings in any event,

we would never weigh an offerofproof, followed by the exclusion ofevidence, as ifthe offer ofproofwas itselfevidence-nordid we. In discussing the insufficiency ofMr. Hilton's third party perpetratorevidence in the second appeal, no consideration was given to the possibility that DNAevidence that was never admitted mighthave cut against the theory. 

### Id. at 100-01. Mr. Hilton separately asks us to reconsider the sufficiency ofhis third party perpetratorevidence in connection with an ineffective assistance ofcounsel claim, which 33No. 31955-5-III In re Pers. Restraint of Hilton

we do below. As discussed hereafter, since the State's mistaken overstatement never factored into the decision on the second appeal, the disclosure that it was an overstatement does not require reconsideration. Mr. Hilton fails in his burden under Cook on his due process claims in ground 2. Ground

### 3: Ineffective Assistance of Counsel Mr. Hilton next claims his trial lawyers were ineffective for failing to (1) adequately investigate and presentthe State's evidence ofhis alibi (the Mantel report), and (2) make an adequate offer ofproofoftheir intenttopresent a third party suspect defense. To establish ineffective assistance ofcounsel, 

### Mr. Hilton must show that his attorney's performance was deficient and thathe was prejudiced by the deficiency. Stricklandv. Washington, 466 U.S. 668, 104 S. 

### Ct. 2052, 80 L. Ed. 2d 674 (1984); State

v. McFarland, 127 Wn.2d 322,334-35, 899 P.2d 1251 (1995). A petitioner demonstrates deficient performance by showing that counsel's conduct fell below an objective standard ofreasonableness. Strickland, 466 U.S. at 686; Rice, 118 Wn.2d at 888. "Inthis regard, the court must make every effortto eliminate the distorting effects ofhindsight and must [ ] presume that counsel's conduct constituted sound trial strategy." Rice, 118 Wn.2d at 888-89 (citing Strickland, 466 U.S. at 689). Defense counsel's duties include making a reasonable investigation or making a reasonable decision that a particular investigation is unnecessary. Rice, 118 Wn.2d at 889. Defense counsel's decision not to investigate 34No. 31955-5-II1 

### In re Pers. Restraintof Hilton

mustbe assessed in light ofall the circumstances. 

### Id. To show deficientperformance, the petitioner must showthe absence ofany conceivable legitimate trial tactic explaining counsel'sperformance. 

### Statev. Grier, 171 Wn.2d 17, 33, 246 PJd 

### 1260(2011);Statev. Reichenbach, 153 Wn.2d 126, 130, 101 PJd 80 (2004). To demonstrateprejudice, a petitioner must show "areasonable probability that, but for counsel's unprofessional errors, the result ofthe [trial] wouldhave been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 

### Strickland, 466 U.S. at 694. 

### A. Inadequate investigation of alibi evidence Mr. Hilton supports his claim ofinadequate investigation ofalibi evidence with the declaration ofhis trial co-counsel, Kevin L. Holt, who states that he was the attorney primarily responsible in trial preparation for investigating and presenting the computer evidence. 

### Mr. Holt acknowledges receiving the Mantel report in discovery. But he says he never understood from the reportthat Detective Mantel had determined a personwas using the Ulrichs' computer at 8:07 p.m. on the night ofthe murders, and hadhe understood that fact, he would have called him to testifY. Mr. Holt further states hewas
never informed that Mr. Fluckiger had confirmed Detective Mantel's conclusion that a person was using the Ulrichs' computer at 8:07 p.m. and, had he understood, he would have interviewed and called Mr. Fluckiger to testifY. Mr. Holt states he had no strategic purpose in notpresenting evidence to thejurythat a person was using the Ulrichs' 35No. 31955-5-II1 In re Pers. Restraintof Hilton computer at 8:07 p.m., when 

### it was undisputed that Mr. Hilton was at home onhis computer from 7:58 to 8:10 p.m. 

### Mr. Holt states the evidence would have contradicted the prosecution's theory thatMr. Hilton killed the Ulrichs before he arrived home at 7:41 p.m., and would have meant eitherthat they were still alive at 8:07 p.m., orthe real killer

was there using their computer. Mr. Holt states he would have argued that the evidence supportedthe theory that LisaUlrich was the killer because she had used herparents' computer earlierthat day to purchase event tickets and knew how to use it. Mr. Hilton's co-counsel, Peter Connick, makes similar statements, although

### Mr. Connick does not remember seeing Detective Mantel's 6-page report. He says he undoubtedly reviewed it ifit was provided in discovery. Mr. Hilton now contends his attorneys Holt and Connickperformed deficiently by not following up on the Mantel report. He faults counsel for not sufficiently interviewing Detective Mantel to learn the meaning ofhis conclusion, and for not having their own expert examinethe Ulrichs' computers. He concludes he was prejudiced by counsels' failures because had they presented Detective Mantel's conclusionthat

someone was using the Ulrichs' computer until 8:07 p.m., it would have refuted the State'stheory and given thejurythe persuasive missingpieceto verifY his alibi. Mr. Hilton compares his lawyers' omissions to several cases where convictions

were reversed because counsel did not follow up on known exculpatory evidence that refuted the prosecution theory ofthe case. First is Baylorv. Estelle, 94 F.3d 1321 (9th 36No. 31955-5-III In re Pers. Restraintof Hilton

Cir. 1996), cert. denied, Duncan v. Baylor, 520 U.S. 1151, 117 S. Ct. 1329, l37 L. Ed. 2d 489 (1997), where the defendant was convicted ofsexual assault. A criminologist's pretrial report concluded that seminal fluid tests tended to eliminate the defendant as the donorbecause he was a "secretor" and the semen donorwas not. Baylor's counsel knew ofthe reports, butnever followed up with the criminalist or soughttesting by another expert. Counsel was unable to subpoenathe criminalist during the trial because hewas

on vacation. Thejurytherefore never learned about the report. Id. at l323. In postconviction proceedings, the court found counsel ineffective for failure to adequately investigate the known potentially exculpatory evidence and reversed the convictions. Id. at l323-24. InLord

### v. Wood, 184 F.3d 1083 (9th Cir. 1999), the defendant's conviction for the rape and murder ofa girl was reversed for ineffective assistance because counsel failed to call, orpersonally interview, three boys who claimed to have seen the victim alive a day after petitionerwas supposed tohave killed her. Counsel conceded in habeas proceedings that the boys' statements dovetailed with the defense and would not have openedthe door to any damaging evidence andpresentation oftheir exculpatory testimony would have entailed no riskto the defense. Id. at 1093. In Sims v. Livesay, 970F.2d 1575 (6th Cir. 1992), the defendant was convicted ofmurderinghis wife. The prosecution theory was that he shot her from a distance as she lay in bed. The defendant claimed he enteredtheroom to find her sitting in bed holding 37No. 31955-5-III In re Pers. Restraint of Hilton

the gun and intending to shootherselfandthat she did so as he grabbed for the gun. Id. at 1576-77. Before trial, defense counsel was in possession ofanFBI report revealing there

was gunpowder residue on a quilt onthe bed. This evidence would have contradicted the prosecutor's theory that the defendant shot the victim from a distance. Counsel was
aware that the prosecution would use the lack ofpowder marks on the victim to argue the victim was shot from a distance, but failed to investigate the FBI report and did not introduce the quilt into evidence. 

### Id. at 1580. In reversing the conviction due to ineffective assistance ofcounsel, the court reasoned the FBI report disclosed facts suggesting the State's theory was easily refutable, and moreover, presented the defense with a theory ofthe case that fully squared with the defendant's version ofthe events. Id. at 1580-81. InAlcalav. Woodford, 334 F.3d 862 (9th Cir. 2003), the court found counsel's performance deficient for failure to present either oftwo witnesses who could conclusively verify the defendant's alibi thathe was at Knott's Berry Farm at the time that the murder victim disappeared from another location. In presenting the alibi, the attorney relied instead onthe testimony ofwitnesses who could only vaguely recall corroborating circumstances. The court held that "[w]hen defense counsel undertakes to establish an alibi, but does not present available evidence ofthe time or eventhe date of the alibi, or offer a strategic reason for failing to do so, his actions are unreasonable." 

### Id. at 871-72. 38No. 3 1 955-5-III In re Pers. Restraint of Hilton Finally, in Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013), the defendantwas convicted ofcommitting lewd and lascivious acts on his stepdaughter. He alleged his counsel was ineffective because he ignored evidence that the victim had recanted her allegations in an Internetposting to a friend. I d. at 1161. Cannedy's "trial was largely a 'he said, she said' case, with nophysical evidence linking [Cannedy] to the alleged abuse." Id. He was the sole defense witness, and his only defense was that the victim had fabricated the allegations. Id. The Internetposting would have explainedthe victim's motive to implicate Cannedy falsely. Id. The court held that under these circumstances, "[n]o competent lawyer would have declined to interview such a potentially favorable witness when that witness had been clearly identified, the witness

was easily accessible and willing to provide information, and trial counsel faced a dearth ofdefense witnesses." Id. None ofthese cases are helpful to Mr. Hiltonbecause all involved counsel's failure to investigate evidence that was exculpatory on its face-in Baylorthe defendant

was a "secretor" and the semen donor was not; in Lordthe three boys said they saw the victim alive a day after petitioner supposedly killed her; in Sims there was gunpowder residue on the quilt; inAlcalathe witnesses verified the defendant's alibi that he was at Knott's Berry Farm when the murder victim disappeared from elsewhere; and in Cannedy the victim recanted her allegations in an Internetposting to a friend.

39No. 31955-5-III In re Pers. Restraintof Hilton

In contrast, Detective Mantel's subjective opinion about "userinitiated activity" does not establish when hands-on use ended, and for that and the other reasons identified by the State (thatMr. Hilton could have been the last user ofthe Ulrichs' computer and that he had time to commit the murders after 8:10p.m.) the Mantel report does not clinch his defense. In a second statement ofadditional authority, Mr. Hilton calls our attention to Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015). There, a panel ofthe Ninth Circuit affirmed the district court's granting ofhabeas reliefto the petitionerHoyt Crace on grounds he received ineffective assistance under Stricklandbecause his trial counsel failed to request ajury instruction on misdemeanorunlawful display ofa weapon as a lesser included offense ofsecond degree assault. Thejury convicted Crace ofthe lesser degree offense ofattempted second degree assault-his third strike resulting in a life sentence withoutpossibility ofparole. But the evidence entitled Crace to the unlawful display ofa weapon instruction had he requested it, and conviction for that offense instead ofthe felony would have avoided a third strike. In determining that counsel's performance was deficient underStrickland, the courtreasoned: Crace's attorney's failure to request the instruction was neither strategicnor deliberate. In a declaration

...he explicitly statedthat the "onlyreason [he] did not offer a lesser included instruction for unlawful display ofa weapon was because [he] did not consider it."

... [T]he declaration is properlybefore us and the state has made no attemptto dispute its 40No. 31955-5-II1 In re Pers. Restraintof Hilton

assertions. We therefore conclude that Crace's counsel made no strategic decision to forgo a lesser included offense instruction that commands our deference, and wehold that his outright failure even to considerthe possibility ofrequesting a lesser included offense constituted deficient performance. Crace, at 852 (2nd, 3rd and 6th alterations in original). The court concludedthat Crace was prejudiced by counsel's shortcoming because the evidence would have allowed thejury to rationally choose to convict Crace only of unlawful display ofa weapon and it was reasonably probable thejury wouldhave done

so. Crace, at 850-51. This probability, the court concluded, is '"sufficientto undermine [our] confidence in the outcome'" so as to satisfy the prejudice prong ofStrickland. Id. at 851 (alteration in original) (quotingStrickland, 466 U.S. at 694). Here, as in Crace, we take at face value the unrefuted declarations ofMr. Hilton's attorneys that they, in essence, simply overlooked Detective Mantel's supposed conclusion that someone was using the Ulrichs' computer until 8:07 p.m. Butunlike in Crace where the admitted evidence readily warranted the critical lesser included instruction, any deficientperformance by Mr. Hilton's lawyers did not give rise to prejudice when the premise that a person was physicallypresent atthe Ulrichs' keyboard is purely speculative and thus cannot support Mr. Hilton's alibi and theory that Lisa Ulrich was the killer. Crace is therefore not helpful to Mr. Hilton.

41No. 31955-5-III In re Pers. Restraint of Hilton

Mr. Hilton is unable to show the essential element ofprejudice from his lawyers' failure to investigate the Mantel report, call Detective Mantel or Mr. Fluckiger as a witness, or have his own expert examine the Ulrichs' computer. Mr. Hilton fails his burden under Cook on this claim. B. Inadequate offer of proof re thirdpartysuspectdefense Finally, Messrs. Holt and Connick state in declarations filed in support ofthe petitionthat, contrary to our inference from the record in the second appeal that they

never soughtto blame Lisa Ulrich for the murders, theyfully intendedto present that thirdparty perpetrator theory, and that their failure to articulate that intent was their error. They state it was not for any tactical or strategic purpose. They state they also intended to make an adequate record to preserve the issue for appeal. They believed the court's exclusion ofthis evidence and argument was the trial court's most serious error, completely frustrating their ability to defend Mr. Hilton. Relying on Griffin v. Harrington, 727 F.3d 940 (9th Cir. 20l3),Mr. Hilton now claims that counsels' failure to make a clearer record oftheir intent to presentthe third partyperpetrator theory was deficient performance that prejudiced him because it denied him the right to present the meritorious defense at trial and defeated appellate review of the issue. In Griffin, aprison inmate (Wilberger) alone implicated the defendant for murder in a recorded statementto police. But defense counsel (Aval) knew Wilberger 42No. 31955-5-II1 In re Pers. Restraint of Hilton

would testify differently from his statement and that the State would then offer his previously recorded statement as substantive evidence. When Wilberger was called to testify, he refused to take the oath. Griffin, 727 F.3d at 942. With no objection from defense counsel, the trial court nonetheless proceeded with questioning ofWilbergerby the State and cross-examination by defense counsel. Wilberger denied implicatingthe defendant. Id. at 943. When the State soughtto admit his recorded statement the next day, defense counsel objected on the grounds Wilberger had not testified under oath. The trial court ruled counsel had waivedthe objectionby not making it when the witness was
on the stand. Thejuryconvicted Griffin. Id. The conviction was upheld on appeal, and in a state habeas proceeding where the court concluded counsel had a credible tactical

reason for failing to objectto the testimony. Id. at 944. On federal habeas, the district court granted Griffin's writ and the Ninth Circuit affirmed on appeal. The court explained: We have no doubt from the record and from Aval's declaration thathe knew during Wilberger'stestimony that his statements in court-inAval's words-"weremade without any oath [and] could not technically be considered evidence." What Aval did notknow and whathe did not comprehend under settled state law, however, was that by failing timely to objectto thattestimony in combination with conducting cross-examination, he was waiving any objection he might have had to Wilberger's testimony. The dire consequences ofhis ignorance on this point was first, that Wilberger's prior inconsistent inculpatory statementthen became admissible against his client; and second, that his client would bebarred on appeal from raising any issue related to Wilberger's sworn testimony. We repeat the California Court ofAppeal's holding on direct appeal: "Because defense counsel did not objectto Wilberger's testimony but instead went on 43No. 31955-5-111 In re Pers. Restraint of Hilton

to cross-examine him, any objection to Wilberger's testimony due to the oath taking issue was waived." Thus, by waiting to object until after Wilberger had been excused as a witness, and until the next day, Aval unwittingly sealed his client's fate, both at the trial and on appeal. He subsequently admitted that his failure immediately to object was a mistake because he thereby failed "topreserve the question for Mr. Griffin's appeal." Griffin, 727 F.3d at 945-946 (alterations in original). Ultimately, the court heldthat Griffin was prejudicedby counsel's shortcomings in unwittingly waiving his client's confrontation rights when Wilberger's disclaimed prior inconsistent statement constitutedthe only evidence in the prosecution's casethat Griffin was the shooter. 

### Id. at 948. And on top ofother "glaring deficiencies in the prosecution's case, no physical evidence linked Griffin to the crime." 

### Id. at 949. The

. court expressed doubtthat Griffin would have been charged with the murder in the first

place without Wilberger's recorded statement. 

### Id. Mr. Hilton contends based on Griffin that his attorneys were likewise ineffective because they unwittingly waivedhis third party perpetrator defense. He claims prejudice becausethe defense was actually viable, particularly given counsel's alleged ineffective assistance for not following up on the Mantel report andthe State's misrepresentation that the DNAreport excluded Lisa Ulrich. The State, on the other hand, contends counsel made the correct tactical decision not to pursue a third party perpetrator argument for a reason we surmised in the second

44No. 31955-5-III In rePers. Restraint of Hilton appeal: "because the case against [Lisa Ulrich] was so weak that it would have made the defense look desperate,"Hilton, 164 Wn. App. at 102, and because there was no legal ground for doing so anyway becauseMr. Hilton could not meet his burden in the trial court to show the evidence created a train offacts orcircumstances that clearly pointed to Ms. Ulrich as the perpetrator. Insofar as the State's argument reflects our holdings in the direct appeal, we agree with its contentions. But for purposes ofthis petition, whether Mr. Hilton (like the defendant in Griffin) was prejudiced by any performance or omissions ofcounsel with respect to the "LisaUlrich thirdparty perpetrator" defense abides our resolution ofMr. Hilton's ground 4, with the ultimate question being whetherhe presents additional and sufficientthird party perpetrator evidence for consideration by ajury. As we discuss below, Mr. Hilton's arguments fail. Ground

### 4: Denial of ConstitutionalRight to Presenta Defense Mr. Hilton claims he was denied his constitutional right to present a defense when the courtprohibited him from presenting evidence that Lisa Ulrich was the real killer. As a startingpoint, in PRPs, this court ordinarily will not review issues previously raised and resolved on direct review unless the petitioner shows the ends of justice would be served by reexamining the issue. In re Pers. Restraintof Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999); see In re Pers. Restraintof Davis, 152 Wn.2d 647,671, 101 P.3d 1(2004). "This burden can be met by showing an intervening change in the law or some 45No. 31955-5-III 

### In re Pers. Restraint

## 0/ Hilton

otherjustification for having failed to raise a crucial point or argument in the prior application." 

### Gentry, 137 Wn.2d at 388 (internal quotation marks omitted) (quoting

### In re Pers. Restrainto/Taylor, 105 Wn.2d 683, 717 P.2d 755 (1986), 

### abrogatedon other grounds byIn re Pers. Restrainto/Gentry, 179 Wn.2d 614,316 P.3d 1020 (2014)). As explained in 

### Gentry: We take seriouslythe view that a collateral attackby PRP on a criminal conviction and sentence should not simply be reiteration ofissues finally resolved attrial and directreview, butrather shouldraise new points offact and law that were not or could not have been raised in the principle action, to the prejudice ofthe defendant. 

### Id. at 388-89. Thus, in determining to what extent this court will revisit Mr. Hilton's third party perpetrator issue, the initial focus is on whetherhepresents newrelevant facts orpoints oflaw not already inherent in the appeal opinion that are material to that defense. This court applied well settled federal and state law in rejecting Mr. Hilton's third party perpetrator issue on appeal. 

### SeeHilton, 164 Wn. App. at 99-103. We thoroughly discussed why the facts did not supportthat defense even ifMr. Hilton had wanted to raise it. 

### Id. at 101-02. Mr. Hilton'spurported new facts wiII be viewedthrough the same legal principles as in the appeal, but also with heightened focus in light ofthe State Supreme Court's intervening ruling 

### inState v. 

### Franklin, 180 Wn.2d 371,325 P.3d 159 (2014).

46No. 31955-5-III In re Pers. Restraintof Hilton

In Franklin, the court reiterated longstanding Washington law stemming from the holding in State V. Downs, 168 Wash. 664, l3 P.2d 1(1932), that other suspect evidence is admissible only ifthe defendant can show "atrain offacts or circumstances as tend clearly to point out some one besides the [accused] as the guiltyparty." State v. Franklin, 180 Wn.2d at 379 (alteration in original) (quotingDowns, 168 Wash. at 667). The court statedthat theDowns test remains essentially unchanged: "some combination offacts or circumstances mustpointto a nonspeculative link between the other suspect and the charged crime." Franklin, 180 Wn.2d at 381. TheFranklin court reiterated that the Downs standard for relevance ofother suspect evidence is whetherthere is evidence '''tendingto connect' someone otherthan the defendant with the crime." Id. (citation omitted) (quotingDowns, 168 Wash. at 667). However, apparently for the first time in Washington case law, theFranklin court also explainedwith respect totheDowns relevance inquiry: Further, otherjurisdictionshave pointed outthat this inquiry, properly conducted, "focuse[s] upon whetherthe evidence offeredtends to create a reasonable doubt as to thedefendant's guilt, not whether it establishes the guilt ofthe thirdpartybeyond a reasonable doubt." Smithartv. State, 988 P.2d 583, 588 & n.21 (Alaska 1999). Franklin, 180 Wn.2d at 381 (alterations in original). Mr. Hilton asks us to reconsiderthe third party perpetrator issue in view ofwhat he considers additional evidence now known that undermines the State's argument regarding supposed "lack" ofevidence to implicate Lisa Ulrich: (1) the State's expert 47No. 31955-5-III In re Pers. Restraint of Hilton

concluded someone was using the Ulrichs' computeruntil 8:07 p.m. when Mr. Hilton

was then at his home on his own computer, and (2) the State's DNA test didnot even compare, much less exclude, Lisa Ulrich's DNA from that recovered from the shell casings found at the scene. 

### Mr. Hilton argues we should revisit the issue in light ofthe prosecutor's withholding ofevidence regarding use ofthe Ulrich computerthat Mr. Hilton says establishes it is impossible for him to be the murderer, and further adds to the balance ofcircumstantial evidence that Lisa Ulrich is the likely perpetrator. Mr. Hilton also says that in the context ofthe apparent close relationship between prosecutor Miller and Lisa Ulrich that earlier gave rise to a defense motion to disqualify Mr. Miller and his office before the first trial, the withheld evidence exposes his behaviorto protect her from being investigated as a suspect and makes purported lack ofevidence againsther unreliable as a result ofa tainted investigation. As discussed, the Mantel report (which the defense had all along) and the Fluckiger opinion do not provide evidence that anyone was in fact physicallypresent at the Ulrichs' computer at 8:07 p.m.-only speculation that cannot tend to placeLisa Ulrich (or anyone else) there at that time; and, and most critically, cannottend to create reasonable doubt as to Mr. Hilton's gUilt whenhe cannot show that anyone was actually present at the keyboard. As for the DNA report, the State's overstatement ofits offer of proofwas not evidence and was not considered in finding Mr. Hilton's third party perpetrator evidence insufficient earlier, so there is no reason to "reconsider"the issue on 48No.**31955~5-III** In re Pers. Restraintof Hilton

that basis at all. These items add nothing to the quantum ofevidence already discussed in the appeal. Nor does the Franklin case give cause to revisit our appeal decision. Mr. Hilton further contends there are additional reasons for us to revisit the issue. He first refers to an anonymous non-traceable telephone call from a citizen to the police

on March 29, 2002, in which the caller stated that Lisa Ulrich's parents disliked her new boyfriend, intended to cut offfinancial support to her, and to pursue custody ofher childrenbecause they disapproved ofhow she was raising them. He also refers to a police report documenting another anonymous telephone call from a citizen on April 3, 2002, in which the caller said he sawLisaUlrich and herboyfriend (Joe Yahne) atFred Rumsey's house on March 24, 2002, and that eitherLisa or Joe was carrying a black object thatthey did not have when they left. The caller did not know what the object

was. The police contacted Mr. Rumsey. He had no idea what someone might have seen, but said he did notrecall them bringing anything to his house exceptpersonal items. Pet'r's Br. in Support ofPRP, Appendix H.6 Mr. Hilton now asserts that ifcounsel could question Ms. Ulrich on these matters, thejurywould be permitted to assess from her

answers whether she had a motive to kill herparents and whether she had access to

someone (e.g. Mr. Yahne orMr. Rumsey) who would have been able to help her commit

6Attorney Holt states in his declaration that the defense knew about both telephone calls at the time oftrial and wanted to present the evidence but could only establish relevance ifthey could argue LisaUlrich was the murderer. 49No. 31955·5-111 In re Pers. Restraint of Hilton

the crimes. Mr. Hilton additionally states ifallowed topresenthis theory, counsel would have argued LisaUlrich was familiar with herparents' computer because she had used it earlier on the day ofthe murder. And, according to Mr. Hilton, Lisa had no alibi up until 8:30 p.m. on March 20. 

### Mr. Hilton contends he is entitled to a new trial to presentthe above evidence. The anonymous telephone calls, the unknown black objectthat cannotbe identified, and Lisa Ulrich's familiarity with herparents' computer are insufficient support for a third party perpetrator claim because they contribute nothing to a train of circumstances that tend to pointto LisaUlrich as the guilty party, nor do they tend to create any reasonable doubt as to Mr. Hilton's guilt. Over a decade after the anonymous caBs were made, and following defense investigation for two trials and this petition, there is still no substantiation for the hearsay innuendo against Ms. Ulrich conveyed in the anonymous 2002 calls. Asthe Statepoints out, there could be no cross-examination regarding the anonymous telephone calls and unknown black object. Given that Mr. Hilton still fails to present sufficient relevant evidence to allow him to presentto a trier offact the theory that Lisa Ulrich murdered her parents, none ofthe several cases onwhich he relies are helpful to him. In UnitedStates v. Stever, 603 F.3d 747, 755 (9th Cir. 2010), the courtheld that the defendant was denied his constitutional righttopresent a defense when the trial court excluded relevant and reliable evidence probative tothe central issue ofwhetherhe was 50No.3l955-5-II1 In re Pers. Restraint of Hilton complicit with Hispanic individuals in a marijuana growing operation on his mother's remote land borderingForest Serviceproperty in Oregon. The case against Steverwas circumstantial. His proffered defense was that a Mexican drug trafficking organization (DTO) grew the marijuana and he had no knowledge ofthe operation. Id. at 756. His offer ofproofincluded government reports describing Mexican DTO operations on public and private land and an expertwitness who would testify that such operations in Oregon excluded local Caucasian landowners. Id. By excluding the evidence, the trial court prevented him from making his defense at all. Id. at 757. He was thus confined to poking holes in the government's case and, as his lawyer argued in closing, holdingthe prosecution to its burden ofproof. The court concluded Stever's Sixth Amendmentrights

were violated. Id. As in Stever, Mr. Hilton contends the trial court'sruling on third party perpetrator evidence precluded him from pointing to any alternative explanation for who committed the crime and confined him to poking holes in the State's case and holding the State to its burden ofproof, thus literally preventinghim from making his defense. He complains that he was leftwith no way to respond to the prosecutor's query in closing argument, "Who else could it be? Who else could it be? No one. No one." RP (Feb. 13,2008) at 3819. And the prosecutor's additional statement in closing, "No other reasonable, logical explanation as to who killed the Ulrich[s] but the defendant." Id. at 3838.

51No. 31955-5-III In re Pers. Restraintof Hilton

Unlike in Stever, Mr. Hilton did not seekto present a thirdparty perpetrator theory. Buteven ifhe had, unlike the offer ofproofin Stever, he fails to presentrelevant and reliable evidence to support a defense that Lisa Ulrich was the killer. Moreover, Mr. Hilton was also fully able to argue his alibi defense, albeit unsuccessfully. Mr. Hilton also cites Kyles v. Whitely, 514 U.S. at 442 n.l3, as instructive for the conceptthat the State's withholding ofmaterial eXCUlpatory evidence in violation of Brady deprived him ofthe chance to further underscore through cross-examination that Lisa Ulrich was the killer. But as discussed, the State did not commit aBrady violation because it did notwithhold material exculpatory evidencepertaining to the Ulrichs' computer-much less evidencepointingto Lisa Ulrich as theperpetrator. Finally, citing to UnitedStates v. Vallejo, 237 F.3d 1008, amendedby246 F.3d 1150 (9th Cir. 2001), Mr. Hilton contends that in the direct appeal, this court failed to recognize it is the role ofthejuryto considerthe relative weight ofthe evidence against LisaUlrich and determine whether itpresents legitimate alternative theories for how the crime occurred. In Vallejo, the defendant was chargedwith importing marijuana hidden in compartments ofhis recently purchased car. He deniedknowledge ofthe drugs. The trial court excluded his proffered evidencethat the still registered former owner ofthe car had a month earlierbeen arrested, and since convicted and deported, for bringing a similar amount ofmarijuana across the border, at the sameport ofentry, usingthe same 52No. 31955-5-III In re Pers. Restraint of Hilton

method ofconcealment, but in a different car. Vallejo, 237 F.3d at 1022-23. On appeal, the courtheld the exclusion ofthis evidence ofthird party culpability was an abuse of discretion because "the similarity ofcircumstances surrounding [the former owner's] arrestprovid[ed] an alternative theory ofhow the drugs were secreted in Vallejo's car without his knowledge," and had "uniquerelevance to the central defense theory that Vallejo did not know ofthe drugs in the car." Id. at 1023. The court further explained that exclusion ofthe evidence precluded him from answering the question byjurors: "If defendant did not knowthere were drugs inthe car and did not place them there himself, who did?" Id. at 1023. In arriving at its decision, the Vallejo court quoted from Professor Wigmore: [I]fthe evidence [that someone else committedthe crime] is in truth calculated to cause thejuryto doubt, the court should not attempt to decide for thejury that this doubt is purely speCUlative and fantastic but should afford the accused every opportunity to create that doubt. Id. at 1023 (alterations in original) (quoting lAJOHN HENRY WIGMORE, EVIDENCE IN TRlALSATCOMMON LAW 

### § 139 (Tillers rev. ed. 1983)). The Vallejo court continued: Accordingly, it is the role ofthejuryto considerthe evidence and determine whether 

### itpresents "all kinds offantasy possibilities," as the district court concluded, orwhether it presents legitimate alternative theories for how the crime occurred. Id. at 1023. Mr. Hilton seizes upon this reasoning to contend all ofhis evidencepertainingto Lisa Ulrich is admissible on a thirdpartyperpetratortheory and the court erred in 53No. 31955-5-111 In re Pers. Restraint of Hilton refusing to allow it. Butbesides his previous waiver ofthe issue already confirmed in the direct appeal, he also overlooks the context of Vallejo, where the third party perpetrator evidence was admissible because itwas directly probative ofVallejos' culpability for the crime. 

### Id. As this courtheld in the appeal, Mr. Hilton proffered no such evidence in the trial court. Nor does he pointto any alleged third partyperpetrator**~vidence** in this petitionthat warrants consideration by ajury. Vallejo (with its reliance on Wigmore) is not helpful to Mr. Hilton. Mr. Hilton makes no showing that the interests of justice require us to further revisit his third party perpetrator issue-either on his alleged lack ofwaiver orthe merits ofthe claim. Gentry, 137 Wn.2d at 388. We decline to do so and reject his ground 4 arguments. We also reject the additional extensive attempts by Mr. Hilton (and the State) in their briefing to rehash trial evidence already weighed by thejury and purported third party perpetrator evidence already ruled not relevant to that theory. Referring backto the ineffective assistance claim in ground 3, given the lack of relevant admissible third party perpetrator evidence, Mr. Hilton cannot show prejudiceby any performance or omissions ofcounsel under the Strickland standards with respect to the LisaUlrich third party perpetrator issue. We, thus, likewise reject his ground 3 ineffective assistance ofcounsel argument for failure to meet his burden under Strickland and Cook.

54No. 3 I955-5-III In re Pers. Restraint of Hilton

In light ofourholdings rejecting each ofMr. Hilton's four grounds for relief, we also deny his motion to disqualify Benton County ProsecutorAndrew Miller and his office from this matter, and his motion for discovery and an evidentiary hearing. Both motions are premised on the State's alleged possession ofevidence that contradicted its theory presented at trial to convict Mr. Hilton, that itwithheldBrady evidence, and that it knowingly made false statements to the court. Mr. Hilton asserts these matters present "newly discovered evidence not available to the defense at the time oftrial," that requires Mr. Miller and members ofhis office who were involved in this case to submit written statements or appear as witnesses in reference proceedings to respond to the factual allegations ofthe State's own experts from its investigation. Mot. for Disc. and Evidentiary Hr'gat 1-2; Mot. to Disqualify Prosecutor at 1-2. Mr. Hilton further states thatwitnesses who have already voluntarily provided statements may, under direct questioning, have additional material evidence to support his claims. He also suggests that this courtrequire the State to admit or deny specific allegations raised by his evidence. RAP 16.9(b). Mot. for Disc. and Evidentiary Hr'g at 2. First, to obtain an evidentiary hearing, "thepetitionermust demonstrate that he has

. competent, admissible evidence to establish the facts that entitle him to relief." Rice, 118 Wn.2d at 886. The petitioner's factual allegations must be "based on more than speculation, conjecture, or inadmissible hearsay." Id

55No. 

### 31955-5-111 In rePers. Restraintof Hilton

Mr. Hilton fails this burden. He has produced no primafacie facts that entitle him to relief-only speculation, conjecture, orinnuendo that is not evidence sufficientto command referenceproceedings ornecessitate further response from the State. The purpose ofan evidentiary hearing is toresolve genuine factual disputes, notto determine whether the petitioner actually has evidence to support his allegations. Id. Mr. Hilton fails to show that an evidentiaryhearing-or discovery for what is in essence a fishing expedition-iswarranted here. These circumstances likewise render his motion for disqualification unsupportable and without merit. Both ofhis motions are denied. Mr. Hilton makes no claim entitling him to reliefin a personal restraint petition. He fails his burden under Cook andRice. Thepetition is dismissed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, butitwill be filed for publicrecord pursuantto RCW 2.06.040.

WE CONCUR:

Brown, J.



### 56