                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



State of West Virginia,
                                                              FILED
Plaintiff Below, Respondent                                                      February 2, 2018

                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 17-0212 (Kanawha County 04-F-57)                                             OF WEST VIRGINIA


Keith W.R. Lowe,
Defendant Below, Petitioner

                               MEMORANDUM DECISION
       Petitioner Keith W.R. Lowe, pro se, appeals the November 16, 2016, order of the Circuit
Court of Kanawha County denying his motion to vacate his conviction for first-degree murder.
Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a summary
response in support of the circuit court’s order.1

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        By order entered on April 29, 2005, petitioner was convicted of first-degree murder as a
result of a jury’s verdict of guilty. The jury did not recommend mercy. Consequently, the circuit
court sentenced petitioner to a life term of incarceration without the possibility of parole. Petitioner
sought review of his conviction, but this Court refused his appeal by an order entered on
November 28, 2006.

        Petitioner has since filed two petitions for a writ of habeas corpus. When he filed each
petition, petitioner requested that the judge who presided at trial recuse himself from presiding
over petitioner’s habeas proceeding. Although the trial judge disputed petitioner’s reasons for
requesting his recusal, he voluntarily recused himself. In each habeas case, the same judge was
assigned to preside following the voluntary recusal of the trial judge.


        1
        On August 11, 2017, petitioner filed a motion to file a reply out-of-time to the summary
response. This Court refused the motion by order entered on November 8, 2017.

                                                   1

        In the first habeas proceeding,2 the circuit court appointed an attorney for petitioner and
then held an evidentiary hearing on October 9, 2009. Following that hearing, the circuit court
denied habeas relief by order entered on January 25, 2010. In denying the first habeas petition, the
circuit court noted that petitioner alleged that, in November/December of 2004, the newly-elected
prosecuting attorney suggested that the trial judge could possibly be hired as an assistant
prosecutor as follows:

       Petitioner further complain[ed] about a discussion the new prosecutor had with the
       presiding judge about potential employment, although the prosecutor clearly
       testified that no offer was made to the [j]udge and that the presiding judge, within
       two days of that discussion, simply expressed a lack of interest. No further
       discussion was had of the matter.[3]

The circuit court found that there was “no impropriety” in the trial judge’s conduct. Petitioner
sought review of the January 25, 2010, order denying his habeas petition, but this Court refused his
appeal by order entered on June, 25, 2010.

        Throughout the second habeas proceeding,4 several attorneys were appointed to represent
petitioner. However, the circuit court eventually allowed petitioner to proceed pro se following
either each attorney’s withdrawal or petitioner’s refusal of their services. The circuit court denied
habeas relief by order entered on December 7, 2016. In that order, the circuit court found that “an
evidentiary hearing [was] unnecessary.” The circuit court rejected petitioner’s claim that his
attorney in the first habeas proceeding failed to fully litigate the issue of whether the trial judge
violated the judicial canons by “negotiating for a position as an assistant prosecutor.” The circuit
court referenced its finding from its January 25, 2010, order denying petitioner’s first habeas
petition that “no job offer was made” to the trial judge and that the judge quickly expressed a lack
of interest. The circuit court concluded that the trial judge “presided over the trial impartially,”
and, therefore, habeas counsel had no duty to pursue the matter further. Petitioner appealed the
December 7, 2016, order denying his second habeas petition, and that appeal remains pending.5

       2
       We take judicial notice of the record in petitioner’s first habeas proceeding, No.
08-MISC-138.
       3
         The prosecutor testified in the underlying criminal case at a hearing after his
newly-appointed counsel filed a motion to disqualify the prosecutor’s office because petitioner’s
former attorney took a job with the office.
       4
      We take judicial notice of the record in petitioner’s second habeas proceeding, No.
11-MISC-625.
       5
         By order entered on May 25, 2017, this Court suspended the deadline for perfecting an
appeal from the December 7, 2016, order denying the second habeas petition and remanded the
case to the circuit court for the limited purpose of appointing appellate counsel. The circuit court
appointed an attorney to represent petitioner in that appeal by order entered on June 6, 2017.
(Continued . . .)
                                                  2

        On August 1, 2016, petitioner filed a motion in the underlying criminal case to vacate his
conviction for first-degree murder based on the trial judge’s alleged conflict of interest. Though
petitioner again requested that the trial judge recuse himself, the trial judge found that there was no
longer any need for his voluntary recusal. Consequently, the trial judge transmitted petitioner’s
motion for disqualification to this Court for a ruling by the Chief Justice pursuant to Rule 17.01 of
the West Virginia Trial Court Rules. By administrative order entered on October 7, 2016, the Chief
Justice found that the trial judge’s disqualification was “not warranted” and denied the motion.
Subsequently, by order entered on November 16, 2016, the trial judge denied petitioner’s motion
to vacate his conviction, finding that it was improperly filed in a closed criminal case.

       Petitioner now appeals the circuit court’s November 16, 2016, order denying his motion to
vacate his conviction for first-degree murder. Because we construe petitioner’s motion as one
requesting a new trial,6 the following standard of review applies to this case:

               “‘“Although the ruling of a trial court in granting or denying a motion for a
       new trial is entitled to great respect and weight, the trial court’s ruling will be
       reversed on appeal when it is clear that the trial court has acted under some
       misapprehension of the law or the evidence.” Syl. pt. 4, Sanders v. Georgia-Pacific
       Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus point 1, Andrews v.
       Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).” Syl.
       Pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Syl. Pt. 2, State v. Blevins, 231 W. Va. 135, 744 S.E.2d 245 (2013) (per curiam).

        On appeal, petitioner fails to cite a court rule under which he may file a motion to vacate
more than eleven years after his conviction for first-degree murder was obtained by the State. The
State argues that petitioner’s motion was not properly filed under Rule 33 of the West Virginia
Rules of Criminal Procedure, which provides, in pertinent part, as follows:

       A motion for a new trial based on the ground of newly discovered evidence may be
       made only after final judgment, but if an appeal is pending the court may grant the
       motion only on remand of the case. A motion for a new trial based on any other
       grounds shall be made within ten days after verdict or finding of guilty or within


Accordingly, by order entered on November 9, 2017, this Court directed appellate counsel to file a
notice of appeal on petitioner’s behalf on or before the deadline set forth in that order. On January
4, 2018, petitioner’s attorney filed a notice of appeal and that appeal is now proceeding under Case
No. 18-0001.
       6
         In State v. J.S., 233 W.Va. 198, 206, 757 S.E.2d 622, 630 (2014), we found that we are not
bound by labels, but will treat the motion as being “made pursuant to the most appropriate rule.”
(internal quotations and citations omitted).


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       such further time as the court may fix during the ten-day period.[7]

          We find that, at most, petitioner’s motion advances a new legal argument rather than
claiming newly discovered evidence of the trial judge’s alleged conflict of interest. In State ex rel.
Daniel v. Legursky, 195 W.Va. 314, 325 n.18, 465 S.E.2d 416, 427 n.18 (1995), we found that
what is alleged as newly discovered evidence must be of a type that would be admissible if a new
trial is granted. See also Syl., State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979) (holding that
the newly discovered evidence must be both new “and material”) (internal quotations and citations
omitted).8 In other words, “newly discovered facts” or “newly discovered information” do not
necessarily qualify as newly discovered evidence. Daniel, 195 W.Va. at 325 n.18, 465 S.E.2d at
427 n.18. Though petitioner is not entirely clear, he apparently contends that he did not discover
until 2016 that, in addition to arguing that the trial judge had a conflict of interest, he could also
argue that the trial judge had a duty to fully disclose the facts regarding the alleged conflict under
Canon 3(E) of the West Virginia Code of Judicial Conduct that was in effect at the time of his
trial.9 As petitioner himself indicates, this is a new argument—not newly discovered evidence,
which would be admissible at a new trial.

       7
         The State further argues—and we agree—that the motion was not properly filed under
Rule 29(c), which provides that a motion for judgment of acquittal may filed “within ten days after
the jury is discharged or within such further time as the court may fix during the ten-day period.”
       8
        In the syllabus of Frazier, we set forth the factors to be considered when deciding a
motion for a new trial based on newly discovered evidence:

                 “A new trial will not be granted on the ground of newly-discovered
                 evidence unless the case comes within the following rules: (1) The
                 evidence must appear to have been discovered since the trial, and,
                 from the affidavit of the new witness, what such evidence will be, or
                 its absence satisfactorily explained. (2) It must appear from facts
                 stated in his affidavit that plaintiff was diligent in ascertaining and
                 securing his evidence, and that the new evidence is such that due
                 diligence would not have secured it before the verdict. (3) Such
                 evidence must be new and material, and not merely cumulative; and
                 cumulative evidence is additional evidence of the same kind to the
                 same point. (4) The evidence must be such as ought to produce an
                 opposite result at a second trial on the merits. (5) And the new trial
                 will generally be refused when the sole object of the new evidence is
                 to discredit or impeach a witness on the opposite side.” Syllabus
                 Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

162 W.Va. at 935-36, 253 S.E.2d at 534-35.
       9
           A new Code of Judicial Conduct became effective on December 1, 2015.


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        Moreover, the parties agree that petitioner may raise the trial judge’s alleged conflict of
interest in a habeas proceeding. Indeed, petitioner has raised the issue in both of his habeas
proceedings. Petitioner’s appeal from the denial of his second habeas petition remains pending.
Nothing stops petitioner from raising the trial judge’s alleged conflict in that appeal should he
choose to do so.10 Regarding this appeal, we conclude that the circuit court did not err in denying
petitioner’s motion as improperly filed in his criminal case.

        For the foregoing reasons, we affirm the circuit court’s November 16, 2016, order denying
petitioner’s motion to vacate his conviction for first-degree murder.

                                                                                        Affirmed.

ISSUED: February 2, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




       10
         We express no opinion as to the merits of petitioner’s claim or whether it is now barred
by the doctrine of res judicata, as annunciated in syllabus point 4 of Losh v. McKenzie, 166 W.Va.
762, 277 S.E.2d 606 (1981), given his first habeas proceeding.

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