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Kitchen v. Ames

Supreme Court of Appeals of West Virginia

December 20, 2019

Kilton L. Kitchen, Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Hampshire County 17-C-97

          MEMORANDUM DECISION

         Petitioner 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.

         This 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 appropriate.

         The 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, Jamie Dean.
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 baseball bat.
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 2010.

Id. at *1-2 (Footnote omitted).

         On 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.[1] 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.

         At the 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."

         The 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.

         The 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 ...


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