UNPUBLISHED OPINION

VERELLEN, J.

A personal restraint petitioner seeking relief on the basis of newly discovered evidence must demonstrate that the evidence will probably change the result of the trial. Petitioner Leslie Pounds challenges his 1983 first degree aggravated murder conviction. He claims that the Federal Bureau of Investigation's (FBI) repudiation of comparative bullet lead analysis (CBLA) constitutes newly discovered evidence and warrants a new trial. Specifically, he relies upon his trial attorney's assertion that he would not have offered an alternative intoxication defense in the absence of the CBLA testimony linking the bullet fragments from the victim with bullets found in Pounds' bedroom. But in view of the testimony of two eyewitnesses identifying Pounds as the shooter and the testimony that Pounds' gun was the only gun present at the shooting, he fails to demonstrate that the outcome would probably have been different.

In the alternative, Pounds requests remand for an evidentiary reference hearing. On this record, an evidentiary hearing is unnecessary to determine whether omission of the expert testimony and a change in trial tactics would probably result in acquittal. Because Pounds fails to meet the requisite standard, no relief is warranted.

FACTS

On September 13, 1983, Chris Vaughn contacted the Snohomish County Sheriff's Office and disclosed that he had witnessed a murder. After the prosecutor agreed not to file charges against him in connection with the death, Vaughn led sheriffs to the body of John Heazlett. Heazlett had died from a single gunshot wound to the head. Vaughn provided officers with a written statement implicating Pounds in the shooting. In the days after Heazlett's death, police found a Smith & Wesson .357 Magnum revolver in Pounds' bedroom. The gun was loaded with five unfired cartridges and had one spent casing. Pounds was charged with aggravated first degree murder.

At Pounds' trial, Vaughn testified. According to Vaughn, on September 12, he and Heazlett spent the evening drinking and smoking marijuana. The men eventually ended up at the Inn Tavern. Upon leaving the tavern, Heazlett saw Pounds' truck in the tavern's parking lot and knifed its tires. Vaughn then drove Heazlett home.

After dropping off Heazlett, Vaughn returned to the tavern and told Pounds that Heazlett had flattened Pounds' tires. Vaughn agreed to take Pounds to Heazlett's house, where Vaughn asked Heazlett if he wanted to have a couple of beers. When Heazlett came outside, Pounds pointed a gun at him and forced him into Vaughn's car.

Pounds directed Vaughn to drive to the house of Harwood Pounds, his brother. There, the four men got into Harwood's car and drove toward Index. During the trip, Pounds held the gun on Heazlett, who was crying and offering to pay Pounds back. At Index, they turned down a gravel road. Harwood stopped at the end of the road. Pounds forced Heazlett out of the car at gunpoint and ordered him to lie on the ground. At Pounds' request, Vaughn tied Heazlett's hands behind his back with Heazlett's bootlaces. Pounds then picked Heazlett up and walked him to the edge of a cliff. Vaughn saw Pounds point the gun at Heazlett's head and heard Pounds fire one shot. He saw Heazlett's body go over the cliff.

Harwood also testified against Pounds.1 He said that the night Heazlett died, Pounds was carrying a .357 Magnum. According to Harwood, when they got to the cliff, Pounds was standing directly behind Heazlett. Although he did not see Pounds shoot Heazlett because he was looking at the ground, the last person Harwood saw with the gun was Pounds. Harwood assumed Pounds had fired the shot. After hearing the gunshot, Harwood looked up and saw Pounds stumbling backward. He saw Vaughn with a flashlight. Harwood approached Pounds and asked him "if he knew what he had done and if he was all right," to which Pounds replied, "Yes, I'm all right."2

FBI special agent Roger Asbury testified that he compared the elemental composition of three bullet fragments recovered from Heazlett's body with the unfired .357 Magnum caliber cartridges discovered in Pounds' bedroom using CBLA.3 Asbury reported that his analysis revealed a "close compositional association" between the fragments and the bullets, indicating that they could have come from the same box of ammunition.4

Pounds testified that on the night Heazlett died, he had eaten approximately 35 to 40 grams of psilocybin mushrooms and had smoked marijuana. He did not have a clear memory of the night. Pounds said he had no recollection of being in Index. Pounds acknowledged that the .357 Magnum found in his bedroom belonged to him. But when asked if he had shot Heazlett, Pounds said, "I don't know," elaborating, "I don't think I got the guts to kill a guy coldblooded like that."5

During closing argument, defense counsel presented two theories. First, he asserted that Vaughn, not Pounds, had killed Heazlett. Alternatively, counsel argued that should the jury find that Pounds killed Heazlett, Pounds was so intoxicated at the time that he was incapable of forming the intent requisite for first degree murder. Neither defense counsel nor the prosecutor mentioned Asbury's testimony in closing arguments.

A jury convicted Pounds of aggravated first degree murder. He was sentenced to life imprisonment without possibility of release or parole. This court affirmed the judgment and sentence on direct review and issued the mandate in 1987.

In June 2009, the Snohomish County Prosecutor's Office forwarded Pounds a letter from the FBI repudiating aspects of CBLA. The letter states that "[s]cience does not support the statement or inference that bullets, shot pellets, or bullet fragments can be linked to a particular box of bullets."6 The FBI also gave the opinion, based on a review of Pounds' trial record, that the type of CBLA testimony offered against Pounds "exceeds the limits of science and cannot be supported by the FBI."7 Pounds filed this personal restraint petition in 2011.

STANDARD OF REVIEW

To obtain relief on collateral review, a personal restraint petitioner must show that he was actually and substantially prejudiced by a violation of his constitutional rights or by a fundamental error of law.8 If a petitioner makes a prima facie showing of error, but the issue cannot be resolved on the existing record, the case must be transferred to the superior court for an evidentiary hearing.9 We will order an evidentiary hearing only if a petitioner demonstrates that he has "competent, admissible evidence establishing facts which would require relief."10

ANALYSIS

Reasonable Diligence in Discovering Evidence and Filing Petition

RCW 10.73.090 bars a personal restraint petition not filed within a year after final judgment unless the petitioner shows that the judgment and sentence is facially invalid, was entered without competent jurisdiction, or the petitioner raises grounds for relief exempt from the time limit under RCW 10.73.100. To qualify for the RCW 10.73.100(1) newly discovered evidence exception to the one year time bar, the petitioner must demonstrate reasonable diligence in discovering the evidence and filing the petition.

The State contends that Pounds failed to exercise reasonable diligence in discovering the evidence because a report questioning the validity of CBLA testimony was published as early as 2004. The State also contends that Pounds was not reasonably diligent in filing his petition after receiving the FBI letter. "Reasonable diligence" in discovering new evidence or in filing a petition has not been strictly defined. Rather, the inquiry depends on a case-by-case evaluation of the facts. Under the facts here, Pounds was reasonably diligent.

Although a report generally calling CBLA evidence into question was published in 2004, as an incarcerated individual, Pounds had limited (if any) access to technical, scientific research. Therefore, even in the exercise of reasonable diligence, it is unlikely that Pounds could have discovered the 2004 report. Additionally, it was not until the 2009 letter—sent after the FBI conducted a detailed review of Asbury's testimony—that the extent of the "misleading" testimony in Pounds' case became apparent. Given these circumstances, Pounds was reasonably diligent in discovering the new evidence.

The State contends that waiting 21 months after receiving the FBI's letter to file this petition did not demonstrate reasonable diligence. Snohomish County forwarded the FBI letter to Pounds in June 2009, and by September, Pounds had retained counsel to investigate the validity of the newly discovered evidence. Before filing the petition in June 2011, counsel discussed settlement with Snohomish County. Counsel ordered and reviewed 2,484 pages of trial transcripts. He located Pounds' trial counsel and obtained a declaration from him after trial counsel familiarized himself with the transcript. Under all the circumstances, and especially considering the technical and highly specialized testimony at issue here, the delay was not unreasonable.

The State argues that we should impose a 30 to 60 day time limit on the filing of a personal restraint petition after the discovery of new evidence, suggesting several sources of persuasive authority.11 None of those cases, however, is on point. The State's proposed standard also does not accord with the concept of reasonable diligence, which is flexible and allows courts to consider a particular petitioner's circumstances. We decline to adopt a rigid standard. Under these unique facts, Pounds' attorney acted with reasonable diligence.

Newly Discovered Evidence

To obtain relief based on newly discovered evidence, a petitioner must demonstrate that the newly discovered evidence "`(1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.'"12

Pounds contends that the FBI letter constitutes newly discovered evidence in the form of recanted trial testimony.13 The fact that the FBI no longer offers expert CBLA testimony does not in itself establish a basis for relief. Rather, Pounds must demonstrate the impact of Asbury's testimony on his individual case. This standard calls for an objective evaluation of the strength of the evidence at trial in light of the new evidence, or, as here, in the absence of the improper evidence.

Pounds claims that without the CBLA evidence, his counsel would not have offered the alternative intoxication defense, which, Pounds contends, weakened his theory that Vaughn was the real shooter.14 But Pounds has not shown that suppression of this evidence and the resulting change in trial tactics would probably change the outcome. Asbury's testimony played a minor role at Pounds' trial. It was not even mentioned in closing arguments. This makes sense in light of the defense theory that Vaughn was the actual shooter. The CBLA evidence could link the bullets to Pounds' gun, but it could not establish who had pulled the trigger. In contrast, the unchallenged evidence against Pounds was strong. The only gun in evidence was Pounds' gun, a .357 Magnum, the same model of gun that had been used to shoot Heazlett. Additionally, eyewitnesses Vaughn and Harwood identified Pounds as the shooter. Evidence was introduced at trial that Pounds and Heazlett had a tense relationship and that Pounds had previously threatened to kill Heazlett.15 Even without the CBLA evidence and the alternative intoxication defense, Pounds does not establish that there would be a stronger basis to dispute this incriminating evidence. And trial counsel would still have been faced with the compelling evidence linking Pounds to the only gun identified by any witness to the shooting. Therefore, we are not persuaded that the outcome would have probably been different.16

Pounds contends that we should remand for a reference hearing. But he has not demonstrated a question of material fact nor has he shown the existence of any additional compelling evidence that would be adduced at such a hearing that would entitle him to relief.17 Trial counsel has described how he would have changed his strategy. Whether that change would have probably resulted in a different outcome can be determined from the record on appeal. We decline his request for reference hearing .

CONCLUSION

Pounds fails to demonstrate that his collateral challenge falls within the newly discovered evidence exemption. Therefore, the one-year time bar precludes any relief and

APPELWICK and SPEARMAN, JJ., Concurs.