                    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.
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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.
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       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.
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       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.
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       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.
