State Of Washington v. Aaron Eugene Howerton, 74856-4

Background

In 1995 Aaron Howerton was convicted of first-degree aggravated murder and sentenced to life without parole; conviction was affirmed on direct appeal and a 2001 personal restraint petition was denied.
In 2008 Howerton learned (via a letter from Jodie McAlister) that co-defendant Timothy Barnes had allegedly confessed to the killing; McAlister later gave a written statement in 2009 describing Barnes's confession and that she had told an officer (Asa Bricker) the next day.
Howerton changed counsel several times; his file was allegedly lost by an attorney; new counsel (Crowley) spoke with McAlister in 2015 and Howerton filed a CrR 7.8 motion to vacate judgment and for a new trial in March 2015 based on newly discovered evidence.
At the CrR 7.8 hearing, investigators testified that McAlister had been interviewed during the original investigation, that detectives saw no reason to follow up, and that Bricker (who could corroborate) died in 2010.
The trial court found Howerton did not exercise reasonable diligence in bringing the collateral attack and that the State did not suppress evidence; it ruled the CrR 7.8 motion was time barred under RCW 10.73.090 and dismissed the motion.
Howerton appealed, arguing (1) he acted with reasonable diligence, (2) ineffective assistance of counsel excuses the delay, and (3) equitable tolling applies; the Court of Appeals affirmed the dismissal.

Issues

Issue	Howerton's Argument	State's Argument	Held
Whether the CrR 7.8 collateral attack is timely under the newly discovered evidence exception to RCW 10.73.090/100	Howerton: Evidence of Barnes's confession is newly discovered and he exercised reasonable diligence once he learned of it	State: Howerton delayed unreasonably after learning of McAlister's information and did not act with due diligence	Held: Motion is time barred; Howerton failed to show reasonable diligence in filing within one year
Whether ineffective assistance of counsel excuses untimely collateral attack	Howerton: Counsel lost his file and later failed to pursue McAlister promptly, causing delay	State: There is no constitutional right to counsel for collateral attacks; petitioner could have proceeded pro se	Held: Ineffective assistance claim fails because no right to counsel in collateral filings; does not excuse delay
Whether equitable tolling should allow the late filing	Howerton: McAlister's drug addiction and counsel's assurances justify tolling	State: Circumstances do not show the narrow, equitable grounds required for tolling	Held: Equitable tolling not available; issue waived below and, on merits, not met (no bad faith/deception and petitioner lacked diligence)
Whether the newly discovered evidence or alleged Brady-type suppression requires relief	Howerton: McAlister's testimony and alleged unproduced investigator statements would entitle him to a new trial	State: Evidence was cumulative and investigators appropriately evaluated McAlister earlier; no suppression shown	Held: Court did not reach merits because collateral attack was time barred; relief denied on procedural ground

Key Cases Cited

In re Pers. Restraint of Howerton, 109 Wn. App. 494 (Wn. App. 2001) (background on original proceedings)
Shumway v. Payne, 136 Wn.2d 383 (Wash. 1998) (burden on defendant to show exception to time bar)
In re Pers. Restraint of Bonds, 165 Wn.2d 135 (Wash. 2008) (purpose of collateral-review time limits; finality)
State v. Schwab, 141 Wn. App. 85 (Wn. App. 2007) (standard of review for CrR 7.8 factual findings)
State v. Wheeler, 183 Wn.2d 71 (Wash. 2015) (requirement to show due diligence in bringing motion)
Engle v. Isaac, 456 U.S. 107 (U.S. 1982) (impact of collateral review on finality and retrial difficulties)
In re Pers. Restraint of Carter, 172 Wn.2d 917 (Wash. 2011) (equitable tolling allowed only in narrow circumstances)
State v. Duvall, 86 Wn. App. 871 (Wn. App. 1997) (definition and appropriateness of equitable tolling)
In re Pers. Restraint of Hoisington, 99 Wn. App. 423 (Wn. App. 2000) (equitable tolling factors: bad faith/deception and plaintiff diligence)