                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                FILED
    Charles R. Kilmer,                                                           May 3, 2013
    Petitioner Below, Petitioner                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA

    vs.)   No. 12-0405 (Berkeley County 12-C-119)

    David Ballard, Warden, Mt. Olive Correctional Complex,
    Respondent Below, Respondent

                              MEMORANDUM DECISION

       Petitioner Charles R. Kilmer, pro se, appeals the order of the Circuit Court of Berkeley
County, entered March 13, 2012, dismissing without prejudice his petition for a writ of habeas
corpus. The respondent warden, by Christopher C. Quasebarth, his attorney, filed a response to
which petitioner filed a reply.

       The 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 standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On January 24, 1991, a jury found petitioner guilty of first degree murder in the death
of Sharon Lewis. The jury did not make a recommendation of mercy. On April 21, 1991, the
circuit court sentenced petitioner to life without the possibility of parole. Petitioner’s
conviction and sentence were subsequently affirmed in State v. Kilmer, 190 W.Va. 617, 439
S.E.2d 881 (1993).

       On April 27, 1998, petitioner filed a petition for a writ of habeas corpus. Habeas
counsel was appointed, and a completed Losh checklist1 and an amended petition were filed.
Petitioner’s Losh list expressly waived thirty-three grounds for relief. Petitioner raised the
issues of ineffective assistance of trial counsel, denial of a full public hearing, improper
denial of a continuance, improper introduction of a confession, and lack of probable cause
for a search warrant. After a response was filed, the circuit court dismissed the petition with
prejudice finding the remaining grounds were legally and factually unsupported. There were some


1
    See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
                                               1
additional filings in the proceeding until it was retired from the circuit court’s docket by an
order entered October 22, 2001.

        In 2004, and from 2008 to 2010, petitioner attempted to reopen the 1998 habeas
proceeding so that he could appeal its dismissal. Petitioner’s efforts to reopen failed both in
the circuit court and in this Court. During petitioner’s attempt to reopen the 1998 proceeding,
a second habeas petition filed in 2007 was held in abeyance. On March 10, 2011, by an
agreement of the parties, the 2007 proceeding was dismissed without prejudice.

        Petitioner filed the instant petition in 2012 alleging newly discovered evidence in the form
of an affidavit from another inmate. According to that affidavit, the inmate’s boss informed the
inmate in 1987 that Sharon Lewis’s husband was looking for someone to kill her.2 Ms. Lewis
death, for which petitioner was convicted of first degree murder, did not occur until February 16,
1990.

        The circuit court summarily dismissed the instant petition for inadequate factual
support finding that even if true, “ ‘this ‘new evidence’ clearly sheds no light on whether
Petitioner murdered the victim or not.” The circuit court noted that the evidence presented in
petitioner’s criminal case was that “[p]etitioner, possibly in the engagement of Mr. Lewis,
murdered the victim, Mr. Lewis’s wife.” The circuit court concluded that the fact Mr. Lewis
may have been interested in killing his wife “does not make it more or less likely that
Petitioner was the person who murdered her.” Because it was dismissing the petition for
inadequate factual support, the circuit court held that the dismissal was without prejudice. 3

       We review a circuit court’s denial of a habeas petition under the following standard:

               In reviewing challenges to the findings and conclusions of the
               circuit court in a habeas corpus action, we apply a three-prong
               standard of review. We review the final order and the ultimate
               disposition under an abuse of discretion standard; the underlying
               factual findings under a clearly erroneous standard; and questions of
               law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).



2
 According to the inmate’s affidavit, he and his boss were performing repair work on the Lewis
home during the summer of 1987.
3
  Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings
provides in pertinent part as follows: “If the petition contains a mere recitation of grounds without
adequate factual support, the court may enter an order dismissing the petition, without prejudice,
with directions that the petition be refiled containing adequate factual support. The court shall
cause the petitioner to be notified of any summary dismissal.”
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        On appeal, petitioner argues that the circuit court failed to give a meaningful review to his
“newly discovered evidence.” Petitioner asserts that the circuit court discounted the affidavit
simply because it was from an inmate. Petitioner asserts that the affidavit would have created
reasonable doubt in the mind of any juror. The respondent warden asserts that the affidavit, even if
true, did not disprove that petitioner was the murderer, especially given the State’s theory at trial
that Mr. Lewis hired petitioner to kill his wife. The respondent warden argues that no hearing or
appointment of counsel was necessary for the circuit court to properly dismiss the petition.4

        Given the State’s theory at trial, this Court finds that the respondent warden is correct that
the affidavit is not likely to produce an opposite result at a second trial on the merits. Therefore, the
affidavit does not meet the standard for newly discovered evidence set forth in Syllabus, State v.
Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979). After careful consideration, this Court concludes
that the circuit court did not abuse its discretion in dismissing the petition.
        For the foregoing reasons, we find no error in the decision of the Circuit Court of Berkeley
County and affirm its order, entered March 13, 2012, dismissing without prejudice the petition for
a writ of habeas corpus.

                                                                                              Affirmed.

ISSUED: May 3, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




4
  See Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (“A court having
jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a
hearing and without appointing counsel for the petitioner if the petition, exhibits, affidavits or other
documentary evidence filed therewith show to such court’s satisfaction that the petitioner is entitled to
no relief.”).
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