IN THE COURT OF APPEALS OF IOWA
No. 15-0679
Filed November 9, 2016
MICHAEL E. HILSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lawrence P.
McLellan, Judge.
Michael Hilson appeals the district court’s denial of his postconviction-
relief application. AFFIRMED.
Joel E. Fenton of Law Offices of Joel E. Fenton, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
Michael Hilson appeals the district court’s denial of his postconviction-
relief (PCR) application, alleging ineffective assistance of counsel based on his
counsel’s purported failure to adequately investigate his case and failure to utilize
an expert witness. We affirm.
I. Background Facts and Proceedings
The facts underlying Hilson’s charge and conviction were previously
summarized by this court:
In September 2006 T.B. called 911 to report she had been
raped. Officer Bernlohr, who was nearby, responded within a few
minutes. She encountered a crying, distraught, and injured T.B.
who described the events of the preceding four hours. The officer
took T.B. to the hospital, where she was examined by Nurse
Williamson, a sexual assault nurse examiner. Williamson spoke
with and examined T.B., including preparing a rape kit. The sealed
rape kit was taken to the police department, where it remained for
about two years. T.B. died in a motor vehicle accident in late 2006.
In May 2008 a detective had the rape kit sent to the Iowa
Division of Criminal Investigation [(DCI)] for analysis. The DNA
analysis led the detective to Hilson, who was charged in December
with burglary in the first degree and sexual abuse in the second
degree. . . .
....
. . . The jury found Hilson guilty of burglary in the first degree
and sexual abuse in the third degree.
State v. Hilson, No. 10-0665, 2013 WL 541621, at *1 (Iowa Ct. App. Feb. 13,
2013). Hilson appealed his conviction, contending the trial court erred in
admitting statements T.B. made to Officer Bernlohr and Nurse Williamson. Id.
His conviction was affirmed on appeal. Id. at *3. In July 2013, Hilson filed a pro
se PCR application, raising numerous challenges to his conviction and sentence.
A hearing was held on Hilson’s claims in December 2014. The PCR court denied
Hilson’s application in April 2015. Hilson appeals.
3
II. Standard and Scope of Review
PCR proceedings, including summary dismissal of PCR applications, are
generally reviewed for errors at law. See Castro v. State, 795 N.W.2d 789, 792
(Iowa 2011). We review ineffective-assistance-of-counsel claims de novo. See
State v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015). In order to prove an
ineffective-assistance-of-counsel claim, an appellant must show by a
preponderance of the evidence that counsel (1) failed to perform an essential
duty and (2) prejudice resulted. Id. at 637. We can resolve ineffective-
assistance-of-counsel claims under either prong. State v. Ambrose, 861 N.W.2d
550, 556 (Iowa 2015); see also Dockery v. State, No. 13-2067, 2016 WL 351251,
at *3 (Iowa Ct. App. Jan. 27, 2016).
III. Analysis
On appeal, Hilson claims his counsel was ineffective in failing to
adequately investigate his case and failing to retain or consult an expert witness.
First, Hilson claims his counsel inadequately investigated alibi or
exculpatory witnesses.1 The PCR court disagreed, concluding Hilson’s counsel
had “exceeded the standard of reasonably competent representation as he
examined witnesses by taking at least ten depositions and he investigated
potentially exculpatory evidence.” The PCR court noted Hilson’s counsel
investigated, identified, and deposed potential witnesses, but
he concluded, for one reason or another, their testimony
would not aid Hilson’s case. Relying on a private
investigator employed by one of Hilson’s previous attorneys,
[Hilson’s counsel] tracked down numerous witnesses who
could only testify whether or not they thought Hilson could
1
The trial counsel at issue on appeal was Hilson’s third counsel. The record indicates
he received information from Hilson’s previous two attorneys.
4
commit the crime. [Hilson’s counsel] did find one potential
witness who claimed to have an alibi for Hilson, but [he]
discounted that testimony as unreliable considering the time
passage between the crime and the fact that Hilson could
only vaguely remember what he had been doing at that time,
but the witness distinctly remembered Hilson being with him
all night. Those credibility issues, coupled with the DNA
evidence implicating Hilson, severely reduces the likelihood
that the witness would change the outcome, and [Hilson’s
counsel] was reasonable to discount the statement and not
put the witness on the stand.
“Counsel is required to conduct a reasonable investigation or make
reasonable decisions that make a particular investigation unnecessary.”
Ledezma v. State, 626 N.W.2d 134, 146 (Iowa 2001). “Thus, the duty to
investigate is not unlimited, and trial counsel is not required to interview every
potential witness.” Id. “In each instance, the decision to investigate a particular
matter must be judged in relationship to the particular underlying circumstances.”
Id.
On appeal, Hilson does not dispute that his counsel conducted these
depositions and utilized a private investigator. Hilson simply disagrees with his
counsel’s decision not to use the potential alibi witness at trial and generically
alleges more investigation should have been done, particularly into the victim’s
initial report that a second man was present during the sexual assault. On our de
novo review, we agree with the PCR court that no duty was breached by Hilson’s
counsel in investigating this matter.
Further, Hilson has failed to meet his burden of demonstrating prejudice.
See id. at 143 (noting, in the event an applicant shows his counsel was
ineffective, he “must also [show] that the error caused prejudice”). Hilson does
not identify specific alibi witnesses he believes his counsel should have
5
contacted or any helpful information any unidentified individuals would have
provided. Hilson’s contention rests on little more than speculation. This does not
meet his burden to show a reasonable probability that a different outcome would
have resulted. See id. at 145 (requiring a showing that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (quoting Strickland v. Washington, 466
U.S. 668, 694 (1984)).
Hilson also alleges his counsel was ineffective for failing to retain or
consult an expert witness. Specifically, Hilson wanted an expert to examine
certain items recovered from the victim’s apartment—including bedding, towels,
and clothing—that were stained with substances, some of which were believed to
be Kool-Aid. At his PCR hearing, Hilson indicated he “wanted everything tested.”
On appeal, he specifies he “was concerned that this material was either not
blood or was blood from a potential other perpetrator.” In addressing this
contention, the district court found:
With regards to the testing of the evidence, the court notes
that Hilson’s trial was continued several times to allow for additional
testing on the DNA evidence, and three testing facilities reached
the same conclusions, i.e. that Hilson’s DNA matched the DNA
found in or on the victim. While the first independent lab merely
analyzed the DCI’s results and conclusions, [Hilson’s counsel]
accommodated Hilson’s insistence that a third lab analyze the
actual evidence. The independent lab reached the same
conclusions. From this, [Hilson’s counsel] concluded that the DNA
results limited the need for further testing on the victim’s clothes or
apartment. As [Hilson’s counsel] noted in his deposition, the jury
almost always accepts that evidence in his experience, and so any
other DNA found in the apartment or on the victim’s furniture or
clothing would not negate the fact that Hilson’s DNA was in the
victim’s body. Additional testing would have exhausted resources
and further delayed proceedings while offering little benefit towards
Hilson’s defense.
6
Even assuming Hilson’s counsel should have had the articles evaluated,
in light of the victim’s assertion there were two perpetrators, Hilson has failed to
show prejudice. As noted by the PCR court, the possible identification of a third
person as having at some point been present in the apartment—assuming the
tests would have even found DNA belonging to a third party—does not rise to the
level of a reasonable probability of a different result for Hilson, whose DNA was
found in the victim.2 On our de novo review, we agree with the thorough and
well-reasoned decision of the district court and affirm.
AFFIRMED.
2
When interviewed by police, Hilson denied knowing T.B. or having ever been to T.B.’s
apartment, which Hilson’s counsel testified essentially precluded arguing that T.B.
consented to involvement with Hilson.