Kilton L. Kitchen, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent
Hampshire County 17-C-97
Kilton L. Kitchen, pro se, appeals the June 15, 2018, order
of the Circuit Court of Hampshire County denying his second
petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex, by counsel
Shannon Frederick Kiser, filed a summary response in support
of the circuit court's order. Petitioner filed a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the relevant standards of review, the parties' briefs in
both appeals, and the record on appeal, the Court finds that
a memorandum decision affirming the circuit court's order
under Rule 21 of the Rules of Appellate Procedure is
factual and procedural background of petitioner's
criminal case was set forth in Kitchen v. Ballard
("Kitchen I"), No. 15-0463, 2016 WL
2970055 (W.Va. May 20, 2016) (memorandum decision):
Petitioner was indicted in February of 2009 for
first[-]degree murder and conspiracy to commit murder. The
victim was Willard Malcolm, who was petitioner's
girlfriend's employer and a friend of her family. The
matter proceeded to a jury trial in August of 2009. The
evidence at petitioner's trial revealed that on October
26, 2008, petitioner and his girlfriend, Patty Lopez[, ] were
traveling in Ms. Lopez's car to rent a movie when
petitioner became enraged and accused Ms. Lopez of having an
affair with several men, including the victim. Ms. Lopez
turned the car around and returned home. Petitioner lived
with Ms. Lopez at the time. Ms. Lopez's children, her
mother, and her mother's boyfriend were at the house
waiting for petitioner and Ms. Lopez to return with the
movie. The argument continued after petitioner and Ms. Lopez
returned to the house. While petitioner was in the shower,
everyone else left to go to the house of another friend,
Shortly thereafter, petitioner went to the Dean residence
accompanied by another man. In a rage, petitioner banged on
the door and demanded that Ms. Lopez come outside. Ms. Lopez
hid while her mother prevented petitioner from entering.
Petitioner eventually left. At that point, Ms. Lopez called
the victim and asked him to go to her house to retrieve her
keys and some clothes for her children. An extended amount of
time passed without hearing back from the victim, so Ms.
Lopez's mother and her boyfriend went to Ms. Lopez's
house to investigate. Just before 10:10 p.m., they found the
victim at Ms. Lopez's house, laying face-down, covered in
blood, and holding Ms. Lopez's keys. He died the
following day of head trauma.
The evidence at petitioner's trial also revealed that,
while petitioner was at Ms. Lopez's house on the day of
the murder, he telephoned Ms. Lopez's brother several
times demanding to know Ms. Lopez's whereabouts. During
one of the calls, petitioner told Ms. Lopez's brother
that someone was pulling into the driveway, and told the
brother, "Did your bitch of a sister send Willard
Malcolm to kick me out of the house or come get the keys? . .
. That's alright, I will take care of it . . . [.]"
It was not long after that call that the victim was found at
Ms. Lopez's house.
In addition, in the evening of that same day, petitioner and
his brother were at a local Sheetz convenience store when
they encountered petitioner's friend, John Boyce.
Petitioner, petitioner's brother, and Mr. Boyce went to
petitioner's brother's house. Mr. Boyce testified
that petitioner asked him if he heard about the murder.
According to Mr. Boyce's testimony, petitioner admitted
that he committed the murder with steel-toed boots and a
Petitioner was convicted of both charges in the indictment.
The circuit court sentenced him to life in prison, with
mercy, and an indeterminate prison term of one to five years
for conspiracy. The circuit court ordered that the sentences
run consecutively. In April of 2010, petitioner appealed to
this Court, which appeal was refused by order in September of
Id. at *1-2 (Footnote omitted).
August 29, 2011, petitioner filed a petition for a writ of
habeas corpus. From September 9, 2011, to September 6, 2013,
four attorneys were successively appointed as habeas counsel.
During this period, an amended petition, a supplemental
petition, and a Losh checklist were filed on
petitioner's behalf. The last attorney appointed as habeas
counsel was Jonie E. Nelson ("habeas counsel"), who
filed a second supplemental petition on June 25, 2014, and an
amended Losh checklist on January 27, 2015. Habeas
counsel represented petitioner at an omnibus hearing on
February 18, 2015.
omnibus hearing, petitioner presented the testimony of Mr.
Boyce, who admitted that he had memory problems, in support
of the claim that Mr. Boyce was incompetent to testify at
trial and, therefore, the State knowingly used perjured
testimony. The issues raised in petitioner's written
submissions were: (1) prejudicial pre-trial publicity; (2)
failure of counsel to file a direct appeal; (3) consecutive
sentences for the same transaction; (4) excessive bail; (5)
prejudicial statements by the prosecuting attorney; (6)
prosecutorial misconduct; (7) insufficient evidence; (8) more
severe sentence than expected; (9) excessive sentence; and
(10) ineffective assistance of trial counsel. Habeas counsel
informed the circuit court that petitioner's ineffective
assistance claim was "outlined in the [p]etition."
circuit court placed petitioner under oath and questioned him
regarding the Losh checklist to confirm which issues
he was raising and which issues he was waiving. The circuit
court inquired if petitioner understood that he would not be
allowed to raise "all of the grounds initialed as
waived/inapplicable" on the Losh checklist in
subsequent proceedings. Petitioner answered, "Yes,
sir." The circuit court noted that there was only one
witness presented and asked petitioner "if there's
any other additional evidence you want the [c]ourt to
consider," explaining that "it would have to be
done so now or it would be forever waived." Petitioner
answered that he understood that he was waiving the right to
present other evidence in support of his claims.
circuit court noted that petitioner was represented by
several attorneys during the first habeas proceeding and
inquired as to his satisfaction with habeas counsel's
performance. Petitioner testified that habeas counsel
communicated with him on fifteen or twenty occasions either
in person, on the phone, or through correspondence. Given the
inclusion of additional grounds in the second supplemental
petition, the circuit court asked petitioner if habeas
counsel "turned over every stone . . . for you."
Petitioner answered, "Yes, sir." The circuit court
further asked ...