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Hilton v. Key

United States District Court, E.D. Washington

March 13, 2018

JAMES KEY, Respondent.


          THOMAS O. RICE, Chief United States District Judge

         BEFORE 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.


         On 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 earlier.
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.
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 cross-examination.
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 State's evidence.
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).

         The 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).

         On 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).

         Petitioner 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.

         This 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. //


         A court 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 ...

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