United States District Court, E.D. Washington
ORDER DENYING PETITIONER'S WRIT OF HABEAS
O. RICE, Chief United States District Judge
THE COURT is Petitioner Kevin Lee Hilton's Petition for
Writ of Habeas Corpus. ECF No. 1. Respondent James Key has
answered the Petition and filed relevant portions of the
state court record. ECF Nos. 15-23. The Court has reviewed
the record and files herein, and is fully informed. For the
reasons discussed below, Kevin Lee Hilton's Petition for
Writ of Habeas Corpus (ECF No. 1) is DENIED.
October 31, 2016, Petitioner Kevin Lee Hilton filed a
Petition for Writ of Habeas Corpus. Mr. Hilton, a prisoner at
the Airway Heights Corrections Center, is challenging his
Benton County jury convictions for two counts of aggravated
first degree murder. ECF Nos. 1 at 1; 16-1 at 2. The
underlying facts and procedural history, summarized by the
Washington Court of Appeals on direct appeal, are as follows:
Lisa Ulrich discovered her parents' bodies in their
Richland home shortly after 9:00 a.m. on March 21, 2002.
Autopsies determined that they had been killed the evening
before. There was no sign of forced entry. Both had been shot
by a .45 caliber handgun.
Five .45 caliber bullets were recovered from the victims and
their house. Police discovered three .45 caliber
“A-Merc” brand shell casings at the scene.
Knowing the brand to be uncommon, a detective began
investigating local gun shops to see which of them sold that
ammunition and to whom.
The Ulrichs were longtime landlords who owned seven
residential rental properties in Richland at the time of
their deaths. Clasped in Mr. Ulrich's hand was a yellow
note folded to conceal a rent receipt for Kevin Hilton in the
sum of $3, 475, representing the total of several months of
back rent he owed the Ulrichs. A file folder containing Mr.
Hilton's rental documents was found on top of the
couple's refrigerator. It contained a three-day,
pay-or-quit notice dated March 15, 2002 directed to Mr.
Hilton. The receipt book was missing, as was the kitchen
telephone handset. The missing telephone had a caller
identification (ID) feature. The caller ID feature on an
upstairs telephone showed that the last telephone call had
been from Kevin Hilton at 6:42 p.m. on March 20.
Police contacted all of the Ulrichs' tenants on March 21
except for Mr. Hilton. Officers were able to make contact
with him the next day; he invited them into his duplex. He
explained his whereabouts on the night of the murder-he had
shopped for groceries at Winco, returned the book Hard Time
to the Richland library, and then gone to volleyball
practice. He also told them that he owed the Ulrichs $3, 475,
but they had reached an agreement over the telephone on March
20th on a plan to pay the rent. Police also learned that Mr.
Hilton owned several rifles and engaged in competitive
shooting events. He said he had previously owned four
handguns, including two Norinco .45 caliber handguns. He said
that he had sold one Norinco to Dirk Leach and the other to
someone at a gun show in Walla Walla six to eight months
Police later served a search warrant on Mr. Hilton's
duplex. They discovered some used .45 caliber A-Merc shell
casings as well as receipts from Schoonie's Rod Shop for
A-Merc .45 caliber ammunition. Testing determined that the
shell casings had been fired from the same gun used to kill
the Ulrichs. The murder weapon was never located.
The prosecutor ultimately filed two charges of aggravated
first degree murder against Mr. Hilton. The case proceeded to
jury trial in 2003. Mr. Hilton did not testify in that trial.
The jury found him guilty as charged. He then appealed to
This court determined that the search warrant for the duplex,
which had uncovered the matching A-Merc shells, was invalid
due to lack of specificity to guide officers in their search.
Because the matching shells were very significant
incriminating evidence, the convictions were reversed.
State v. Hilton, No. 22116-4-III (Wash.Ct.App. Jan.
26, 2006), review denied, 158 Wn.2d 1027 (2007).
The case was scheduled for retrial ….
The State also moved in limine to prohibit the defense from
accusing Lisa Ulrich of committing the murders. Defense
counsel advised the court about numerous topics that Lisa
Ulrich had been cross-examined about during the first trial
and indicated that the defense intended to again cover those
areas. He did not want the third party perpetrator ruling to
limit those areas of inquiry. RP at 201-204. Defense counsel
then concluded his argument:
So, minimally, I think the court should allow what was
allowed last time in terms of cross-examination. We don't
characterize that as other party perpetrator evidence, and
we're entitled to do it under the rules of
RP at 205. The trial court ruled that third party perpetrator
evidence would be excluded ….
Although the receipts seized from Mr. Hilton's duplex and
the matching casings had been suppressed, the prosecutor
still sought to admit evidence that Mr. Hilton had purchased
A-Merc .45 caliber bullets. The trial court ruled that the
Schoonie's Rod Shop owner could testify and her records
of the sales could be admitted at trial. The court reasoned
that the evidence was admissible under either the inevitable
discovery or independent source doctrines. Clerk's Papers
(CP) at 26.
Unlike the first trial, Mr. Hilton testified on his own
behalf in the second trial. Typically without objection, the
prosecutor was permitted to question Mr. Hilton about the
fact that he was familiar with the discovery and prior
testimony. The prosecutor also argued in closing that Mr.
Hilton had tailored his alibi testimony to fit the
The jury found Mr. Hilton guilty of both counts of first
degree murder and also found that both offenses were
committed with the aggravating factor that there were
multiple killings committed as part of a common scheme or
plan. He was sentenced to life in prison without possibility
of parole. He then timely appealed to this court.
ECF No. 16-1 at 14-19 (Ex. 2).
Washington Court of Appeals affirmed Petitioner's
conviction and sentence on September 27, 2011. Id.
at 63. Petitioner then filed a petition for review in the
Washington Supreme Court. ECF No. 16-2 at 152 (Ex. 11). On
April 27, 2012, the Washington Supreme Court denied review.
ECF No. 17-1 at 30 (Ex. 13).
September 18, 2013, Petitioner filed a personal restraint
petition in the Washington Court of Appeals. Id. at
32 (Ex. 14). On October 20, 2015, the Washington Court of
Appeals thoroughly addressed Petitioner's issues and
dismissed his personal restraint petition. ECF No. 16-1 at 65
(Ex. 3). Petitioner then moved the Washington Supreme Court
for discretionary review, which was denied on November 2,
2016. ECF No. 17-3 at 93 (Ex. 21).
filed this federal 28 U.S.C. § 2254 habeas petition on
October 31, 2016, generally alleging four grounds for relief:
(1) denial of due process for false or misleading evidence
and argument; (2) denial of due process in violation of
Brady; (3) ineffective assistance of counsel; and
(4) denial of his constitutional right to present a defense
and due process. ECF Nos. 1 at 2; 9 at 1-9.
Court granted Petitioner's Unopposed Motion to Expand the
Record. ECF Nos. 35; 50. Petitioner sought to conduct
discovery and hold an evidentiary hearing, specifically
regarding Detective Simon Mantel's report. ECF No. 36.
This Court denied the motion and thus will not consider
Petitioner's argument for an evidentiary hearing in this
order. ECF Nos. 51; 34 at 2-4. This Court does not consider
evidence that was excluded as a matter of law from the second
trial. See ECF No. 34 at 5. The parties agree that
Petitioner properly exhausted his state court remedies. ECF
Nos. 15 at 15; 34 at 1. //
will not grant a petition for a writ of habeas corpus with
respect to any claim that was adjudicated on the merits in
state court proceedings unless the petitioner can show that
the adjudication of the claim “(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d). Section 2254(d) sets forth a “highly
deferential standard for ...