                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS


Keith Lowe,                                                                           FILED
Petitioner Below, Petitioner                                                      November 8, 2019
                                                                                   EDYTHE NASH GAISER, CLERK
vs.) No. 18-0001 (Kanawha County 11-MISC-625)                                      SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent



                                 MEMORANDUM DECISION


        Petitioner Keith Lowe, by counsel Joseph H. Spano Jr., appeals the Circuit Court of
Kanawha County’s December 7, 2016, order denying his petition for a writ of habeas corpus.1
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Shannon Frederick
Kiser, filed a response in support of the circuit court’s order.2 On appeal, petitioner argues that
the circuit court erred in denying him habeas relief because he received ineffective assistance of
both trial and habeas counsel. Petitioner additionally raises several other grounds for relief
related to alleged improprieties on the part of the trial judge and/or prosecutor’s office and newly
discovered evidence, among other alleged grounds for relief.

        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 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.


       1
           Petitioner filed his original brief pro se but later filed a supplemental brief by counsel.
       2
        Effective July 1, 2018, the positions formerly designated as “wardens” are now
designated “superintendents.” See W. Va. Code § 15A-5-3. Further, petitioner originally listed
Ralph Terry as respondent in this matter. However, Donnie Ames has subsequently taken the
position of superintendent at Mt. Olive Correctional Complex, and the appropriate public officer
has been substituted in accordance with Rule 41 of the Rules of Appellate Procedure.




                                                     1
        Following a jury trial, petitioner was convicted of first-degree murder in April of 2005.
The jury did not recommend mercy and, accordingly, petitioner was sentenced to a term of
incarceration for life, without the possibility of parole. Before petitioner’s trial, his girlfriend,
Misty Cabral, who was also indicted for the same murder as petitioner, pled guilty to robbery.
Ms. Cabral did not receive a sentencing recommendation as part of her plea agreement, except
that the State did agree to express its opinion about her cooperation in petitioner’s trial, where
Ms. Cabral went on to testify as a witness for the State. As to petitioner’s involvement in the
crime, he admitted to killing the victim. As such, petitioner’s trial was focused entirely upon the
degree of his criminal culpability. Following his conviction, petitioner filed a direct appeal,
which this Court refused by order in November of 2006. Petitioner appealed that denial to the
United States Supreme Court, which also refused the appeal. See Lowe v. West Virginia, 550
U.S. 942 (2007).

        In 2008, petitioner filed a petition for a writ of habeas corpus in the circuit court. After
the appointment of counsel, the circuit court held an omnibus evidentiary hearing. In that
proceeding, petitioner raised several grounds for habeas relief, including ineffective assistance of
trial counsel and the apparent recantation of Ms. Cabral. Petitioner additionally filed a Losh3 list
and testified regarding his understanding that all claims not specifically raised in that proceeding
were waived for future habeas proceedings. During the omnibus hearing, counsel testified at
length regarding the possibility of a diminished capacity defense for petitioner at trial and how
that defense was untenable and did not comport with the defense’s theory of the case.
Additionally, the habeas court heard testimony and evidence regarding Ms. Cabral’s possible
recantation. According to the habeas court, this did not constitute newly discovered evidence
because “before trial, [Ms.] Cabral indicated she was willing to recant.” Although Ms. Cabral did
not recant, she was cross-examined during trial concerning her correspondence to petitioner
indicating that she would recant. Ultimately, “at the omnibus hearing, [Ms.] Cabral testified
consistently with her trial testimony” and “never recanted her testimony under oath.” After
addressing several other issues raised in the habeas petition, the habeas court found that trial
counsel was effective. Accordingly, the habeas court found that petitioner was entitled to no
relief and denied his petition. Petitioner appealed that denial, and this Court affirmed the denial
by order entered in June of 2010.

        In 2011, petitioner filed a second petition for a writ of habeas corpus. According to the
circuit court, petitioner was represented by several attorneys throughout the pendency of the
proceedings, but each attorney withdrew or petitioner refused their assistance. After duly
cautioning him, petitioner was permitted to represent himself in the proceedings. Per the order on
appeal,4 petitioner raised the following grounds for relief below: ineffective assistance of counsel
       3
           Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
       4
         Petitioner did not include his initial petition or any subsequent amended petitions from
the current habeas proceeding in the appendix on appeal. Although page seventeen of petitioner’s
appendix includes what appears to be the first page of such petition, including the appropriate
circuit court docket number, the very next page of the appendix contains the first page of one of
petitioner’s psychological evaluations, which continues for several pages. At no point in the

                                                                                    (continued . . . )
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for failure to litigate petitioner’s claimed incompetence at the time of the offense and the time of
trial; ineffective assistance of habeas counsel for failing to litigate the issue of trial counsel’s
ineffectiveness regarding competency, the lack of a mental and/or diminished capacity defense,
and bifurcation; ineffective assistance of habeas counsel for failing to visit with petitioner and
fully develop the record; petitioner’s convictions were the result of a miscarriage of justice;
petitioner was denied due process of law and freedom from cruel and unusual punishment; newly
discovered evidence in the form of “yet another purported recantation by Ms. Cabral”; and
technical difficulties with the omnibus hearing process resulting in a violation of petitioner’s due
process and equal access to law. Due to petitioner’s prior habeas proceeding, the court ultimately
found that “the only pertinent issue in this action” was petitioner’s claim of ineffective assistance
of prior habeas counsel.

        Eventually, respondent filed a motion for summary dismissal of the petition. Petitioner
responded to that motion and raised additional grounds for habeas relief, including that trial and
habeas counsel were ineffective in regard to litigating petitioner’s claim that the trial judge
violated the judicial canon of ethics and moving to disqualify him. Further, petitioner asserted
that his due process rights were violated when the trial court failed to conduct an evidentiary
hearing to determine his criminal responsibility; trial and habeas counsel were ineffective for
allowing a mentally incompetent person to be sentenced to life imprisonment; petitioner was
unable to effectively assist his trial counsel and communicate with counsel regarding the Losh
list because of his incompetency; petitioner was denied due process by the perjury of the
prosecutor and assistant prosecutor regarding his motion to disqualify that office, including
clandestine negotiations of his trial counsel and the trial judge to obtain a job with that office;
and habeas counsel was ineffective for failing to assert that trial counsel was ineffective in
dealing with a potential witness and Ms. Cabral’s recantation. Ultimately, the circuit court denied
the petition for a writ of habeas corpus. This appeal followed.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

appendix does it appear that any substantive portion of any habeas petition from the matter on
appeal is provided. Similarly, petitioner’s briefing in this matter fails to include citations to the
record to indicate where the issues on appeal were presented to the habeas court, in violation of
the applicable rules. See W. Va. R. App. P. 10(c)(7) (“The argument must contain appropriate
and specific citations to the record on appeal, including citations that pinpoint when and how the
issues in the assignments of error were presented to the lower tribunal.”) (emphasis added).
While it is true that petitioner’s brief contains citations to the appendix, most of these citations
are to portions of the appendix that contain documents relevant to his trial or first habeas
proceeding. At no point does petitioner’s briefing indicate where the specific assignments of
error on appeal in this matter were presented to the court presiding over his second habeas
proceeding. Because petitioner failed to include the petitions from the circuit court and also
failed to include citations that show when and how the issues in his assignments of error were
presented below, the circuit court’s recitation of the grounds for relief petitioner raised below is
accepted as accurate, insomuch as it relates to whether petitioner preserved specific arguments
for appellate review.



                                                 3
               “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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner simply alleges anew the same arguments he presented to the circuit
court. Namely, he asserts that he is entitled to habeas relief upon a number of grounds related to
his alleged incompetency to stand trial or lack of criminal responsibility, alleged impropriety on
the part of the trial judge and/or prosecutor’s office, newly discovered evidence in the form of an
affidavit from Ms. Cabral from 2009, and other grounds asserted in the proceedings below.5
Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the
record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our
review of the record supports the circuit court’s decision to deny petitioner post-conviction
habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the
circuit court’s order includes well-reasoned findings and conclusions as to the assignments of
error raised on appeal. Given our conclusion that the circuit court’s order, as it relates to these
assignments of error, and the record before us reflect no clear error or abuse of discretion, we
hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to
petitioner’s assignments of error and direct the Clerk to attach a copy of the circuit court’s
December 7, 2016, “Order Granting Respondent’s Motion For Summary Judgment And
Dismissing Civil Action With Prejudice” to this memorandum decision.

       For the foregoing reasons, we affirm.


                                                                                          Affirmed.



       5
         It should also be noted that certain assignments of error raised in this appeal, including,
among others, the assertions that “the trial court erred in allowing [the] prosecutor to switch
charges without giving the defense notice” and ineffective assistance of trial counsel for failing
to prepare a defense against felony murder, do not appear to have been raised in the proceedings
below. As noted above, the record is unclear as to what specific grounds were asserted in the
circuit court due to petitioner’s failure to comply with this Court’s applicable rules. To the extent
that any grounds raised on appeal to this Court were not raised in the proceedings below, we
decline to address these assignments of error on appeal. See Noble v. W. Va. Dep’t of Motor
Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (citation omitted) (“Our general rule
is that nonjurisdictional questions . . . raised for the first time on appeal, will not be
considered.”).



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ISSUED: November 8, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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