1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jason M. Payne,

Petitioner Below, Petitioner

vs) No. 19-1197 (Morgan County 19-C-61)

Russell Matson, Superintendent,

St. Marys Correctional Center, 

Respondent Below, Respondent

MEMORANDUM DECISION

Self-represented petitioner Jason M. Payne appeals the November 21, 2019, order of the 

Circuit Court of Morgan County dismissing with prejudice his petition for a writ of habeas corpus. 

Respondent Russell Matson, Superintendent, St. Marys Correctional Center, by counsel Gordon L. 

Mowen II, filed a 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. 2 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.

1Due to petitioner’s transfer, the “person having the immediate custody” of him has 

changed and has been substituted as the respondent. See W. Va. Code § 53-4A-5.

2

On October 30, 2020, petitioner filed a motion to file a supplemental appendix and for 

appellate counsel to be appointed. Based on our review of the appellate record, we find that we can 

dispose of petitioner’s appeal on the present record and without additional briefing or oral 

argument. Therefore, we deny petitioner’s motion.

FILED

February 2, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

In September of 2007, petitioner was indicted on one count of first-degree murder and one 

count of conspiracy arising from the murder of Keese Bare. At petitioner’s trial, which began on 

May 5, 2008, Amanda Kerns Ecatah testified that she received a call from her brother, Vernon 

Kerns Jr., requesting that she come to a campsite referred to as “Lot 17.” Upon her arrival at the

campsite, Mr. Kerns informed Ms. Ecatah that “they [petitioner, Mr. Kerns, and Jerome “B.J.” 

Smith] were going to kill Keese.” Ms. Ecatah testified that she then observed Mr. Smith cut Mr. 

Bare’s throat while Mr. Bare was restrained by petitioner and Mr. Kerns. After his throat was cut, 

Mr. Bare stood up and began to run, at which time Mr. Kerns stabbed him with a knife. Ms. Ecatah 

further testified that petitioner told Mr. Bare “that is what happened to people that told” and that,

after Mr. Bare was stabbed, petitioner beat him in the head with a metal baton until the baton bent 

in half. When Ms. Ecatah pleaded with petitioner to stop, petitioner responded that “he wasn’t 

going to jail for attempted murder.” The three men then burned Mr. Bare’s body in the fire pit at 

the campsite. Ms. Ecatah testified that Mr. Bare was killed due to the belief that he was going to 

implicate the group in a credit card fraud case. On cross-examination, Ms. Ecatah acknowledged 

that she had a criminal history of forgery and that she had previously lied to the police when 

questioned about Mr. Bare’s murder. Ms. Ecatah acknowledged the differences between her

statement to the police and her trial testimony.

Petitioner testified that he arrived at Lot 17 and saw Mr. Kerns, Mr. Smith, Ms. Ecatah, and 

Mr. Bare drunk around the fire pit. Mr. Kerns, Mr. Smith, and Mr. Bare walked away from the fire. 

Petitioner claimed that, after the three walked away together, he saw Mr. Bare drop to the ground 

and lay motionless after Mr. Kerns and Mr. Smith, who were beating Mr. Bare, stopped hitting 

him. Petitioner further testified that Mr. Kerns and Mr. Smith dragged Mr. Bare’s body into the 

fire. Although petitioner admitted to previously having a metal baton similar to that described by 

Ms. Ecatah, he denied participating in the murder of Mr. Bare. Following trial, the jury convicted 

petitioner of second-degree murder, a lesser-included offense of first-degree murder, and found 

him not guilty of conspiracy. The circuit court sentenced petitioner to forty years of incarceration 

plus an additional five years of incarceration as a recidivist.3 In State v. Payne (“Payne I”), No. 

11-1045, 2012 WL 3104253 (W. Va. June 22, 2012) (memorandum decision), this Court affirmed 

petitioner’s convictions. Relevant here, the Court rejected petitioner’s argument that Ms. Ecatah’s 

phone records constituted exculpatory evidence that should have been disclosed to him. Id. at *4-5

On November 5, 2012, petitioner filed a petition for a writ of habeas corpus. Habeas 

counsel was appointed, and an amended petition and a Losh checklist were filed on June 10, 2015.4

In its March 15, 2016, order, the circuit court noted that “any grounds not raised in the petition for 

3

Petitioner was previously convicted in Morgan County Case Nos. 01-F-11 and 00-F-52 

and Howard County, Maryland, District Court Case No. 3T00049808. 

4

The checklist of grounds typically used in habeas corpus proceedings, usually referred to 

as the Losh checklist, originates from our decision in Losh v. McKenzie, 166 W. Va. 762, 277 

S.E.2d 606 (1981), where we set forth the most common grounds for habeas relief. See 166 W. Va. 

at 768-70, 277 S.E.2d at 611-12. 
3

habeas corpus are deemed waived [pursuant to] Losh v. McKenzie, 166 W. Va. 762[, 277 S.E.2d 

606] (1981).” The circuit court denied the amended petition, finding that, based on the record and 

the criminal appeal in Payne I, “each of [p]etitioner’s claims fail to show any constitutional error 

or any need for an evidentiary hearing.” Specifically, the circuit court noted that, in Payne I, this 

Court found that petitioner’s claim that Ms. Ecatah’s phone records were exculpatory evidence

was without merit. In Payne v. Ballard (“Payne II”), No. 16-0340, 2017 WL 2633507 (W. Va. 

June 19, 2017) (memorandum decision), this Court affirmed the circuit court’s March 15, 2016, 

order denying the amended petition and adopted its “well-reasoned findings and conclusions.” Id.

at *3. 

On April 18, 2017, petitioner’s counsel filed a motion in the circuit court to reopen the 

habeas proceeding in Payne II based upon petitioner’s receipt of a notarized letter from Mr. Kerns, 

who was convicted of the first-degree murder of Mr. Bare in a separate trial. The letter stated Mr. 

Kerns’s intention to “come forward and accept the fully [sic] responsibility in the murder that 

[petitioner] and I was [sic] convicted of.” In his letter, Mr. Kerns detailed that petitioner:

has been in prison for something he honestly had nothing to do with. Keese (the 

dece[a]sed) was telling on my sister Amanda [Ecatah] and I [sic] for other crimes 

somehow the state never charged her for something she was clearly apart [sic] of 

yet they charged [petitioner] and he really did nothing.

By order entered on July 28, 2017, the circuit court denied the motion to reopen, finding 

that the notarized letter lacked reliability and was contradicted by Mr. Kerns’s testimony at his 

own trial. At his trial, Mr. Kerns testified that both he and petitioner participated in Mr. Bare’s 

murder.5 The circuit court reasoned that Mr. Kerns’s letter would not produce a different outcome 

in petitioner’s proceeding. The circuit court further rejected petitioner’s argument that an alleged

June 17, 2017, phone conversation petitioner had from his correctional facility with Mr. Kerns’s

other sister, Laura Kerns, constituted newly discovered evidence. The circuit court found that 

Laura Kerns’s alleged statement, even if accurate, was too vague to be reliable in that petitioner 

alleged that Laura Kerns “talked about how she knew [of Ms. Ecatah]’s involvement and that . . . 

[Mr. Kerns] and [p]etitioner never threatened [Ms. Ecatah].” 

In Payne v. Ames (“Payne III”), No. 17-0730, 2019 WL 181454 (W. Va. January 14, 2019) 

(memorandum decision), petitioner appealed the circuit court’s denial of the motion to reopen the 

habeas proceeding. Petitioner did not refer to his June 17, 2017, phone conversation with Laura

Kerns in Payne III, but argued Mr. Kerns’s letter constituted newly discovered evidence that 

warranted a new trial in the underlying criminal proceeding. Id. at *3. This Court rejected 

petitioner’s argument and affirmed the circuit court’s denial of the motion. Id. at *5.

During the pendency of petitioner’s appeal in Payne III, he filed the instant petition for a 

writ of habeas corpus on August 25, 2017. The instant petition was not ruled upon until November 

21, 2019, because petitioner filed it in the underlying criminal action rather than as a separate 

5

Mr. Kerns did not testify at petitioner’s trial due to the invocation of his Fifth Amendment 

privilege not to testify against himself.
4

action.6 On appeal, petitioner challenges the circuit court’s rulings as to two claims.

7 Petitioner 

alleged below that the following constituted newly discovered evidence: (1) Mr. Kerns’s

November 29, 2016, notarized letter; (2) petitioner’s June 17, 2017, phone conversion with Laura 

Kerns; (3) Ms. Ecatah’s phone records; and (4) copies of the forged checks from the credit card 

fraud investigation that, according to the State, provided the motivation behind Mr. Bare’s murder. 

Petitioner further alleged that habeas counsel was ineffective by not filing a petition for rehearing 

in Payne III or investigating petitioner’s claims of newly discovered evidence before withdrawing 

from the case.8

By order entered on November 21, 2019, the circuit court found that petitioner’s newly 

discovered evidence claims were previously adjudicated in Payne I, Payne II, and/or Payne III. 

The circuit court further found that, due to its earlier rulings and subsequent affirmations by this 

Court, petitioner failed to “present any ground on which [the ineffective assistance of habeas 

counsel claim] could even possibly have been successful.” Therefore, the circuit court treated the 

ineffective assistance claim as derivative of the newly discovered evidence claims. Accordingly, 

as to the claims raised therein, the circuit court found that it could dismiss the petition pursuant to 

Rule 4(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia 

(“habeas rules”). 

Petitioner now appeals the circuit court’s November 21, 2019, order dismissing with 

prejudice the instant habeas petition. This Court reviews a circuit court order dismissing 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 

6

In its November 21, 2019, order, the circuit court directed the August 25, 2017, habeas 

petition be given a separate civil action case number. The circuit court found that, contrary to 

petitioner’s argument that a third habeas petition was filed in July of 2018, a search of the records 

in Payne I, Payne II, and Payne III showed that no such putative petition was filed. On appeal, 

petitioner does not challenge this finding. Rather, petitioner attributes the 2018 putative petition’s 

lack of filing to either the circuit court or the United States Postal Service. Regardless of the reason 

for the lack of filing, we find that the circuit court’s determination that the 2018 putative petition 

was never filed was not clearly erroneous. 

7The circuit court rejected two other claims raised by petitioner, who challenged the 

amount of restitution he is required to pay in the underlying criminal action and the deductions 

made from his prison trust account to pay restitution and assessed court costs in the underlying 

action. Petitioner does not raise either of those issues on appeal. 

8

The circuit court granted habeas counsel’s motion to withdraw from petitioner’s case by 

order entered on July 26, 2017.
5

law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 

633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). “On an appeal to this Court[,]

the appellant bears the burden of showing that there was error in the proceedings below resulting in 

the judgment of which he complains, all presumptions being in favor of the correctness of the 

proceedings and judgment in and of the trial court.” Syl. Pt. 1, White v. Haines, 215 W. Va. 698, 

601 S.E.2d 18 (2004) (quoting Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 

(1973)).

On appeal, petitioner argues that, because the circuit court dismissed the instant petition

pursuant to Habeas Rule 4(c), the dismissal should have been without prejudice. Habeas Rule 4(c) 

provides:

Evaluation for Summary Dismissal; Contents of Summary Dismissal Order.

The petition shall be examined promptly by the judge to whom it is assigned. The 

court shall prepare and enter an order for summary dismissal of the petition if the 

contentions in fact or law relied upon in the petition have been previously and 

finally adjudicated or waived. The court’s summary dismissal order shall contain 

specific findings of fact and conclusions of law as to the manner in which each 

ground raised in the petition has been previously and finally adjudicated and/or 

waived. 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. 

 

Respondent argues that Habeas Rule 4(c) permits a circuit court to dismiss a petition 

without prejudice when the dismissal is based upon a lack of adequate factual support and that the 

dismissal in this case had a different basis. We agree. The circuit court dismissed the instant 

petition pursuant to Habeas Rule 4(c) because it found that the claims raised therein were

previously adjudicated in Payne I, Payne II, and/or Payne III. Here, the first three items of alleged 

newly discovered evidence petitioner listed in his petition were: (1) Mr. Kerns’s November 29, 

2016, notarized letter, which this Court found did not constitute newly discovered evidence in 

Payne III; (2) petitioner’s June 17, 2017, phone conversion petitioner had from his correctional 

facility with Mr. Kerns’ other sister, Laura Kerns, whose alleged statement was found to be 

unreliable by the circuit court in the July 28, 2017, order that was affirmed in Payne III; and (3) 

Ms. Ecatah’s phone records, which this Court found were not exculpatory evidence in Payne I, on 

which the circuit court relied to reject the same claim in Payne II.

Respondent concedes that the fourth item of alleged newly discovered evidence—copies of 

the forged checks from the credit card fraud investigation that reportedly provided the motivation 
6

behind Mr. Bare’s murder—was not adjudicated in any prior proceeding.

9 However, respondent 

argues that this Court may still affirm the dismissal of the petition. We agree. This Court has long 

held that it may “affirm the judgment of the lower court when it appears that such judgment is 

correct on any legal ground disclosed by the record, regardless of the ground, reason or theory 

assigned by the lower court as the basis for its judgment.” Syl. Pt. 3, in part, Barnett v. Wolfolk, 149 

W. Va. 246, 140 S.E.2d 466 (1965). We have further held that “[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.” Syl. Pt. 2, White, 215 W. Va. at 699, 601 S.E.2d at 19 (quoting Syl. Pt. 1, 

Perdue, 156 W. Va. at 467, 194 S.E.2d at 658).

Based on our review of the record, we find that petitioner did not raise a newly discovered 

evidence claim in his instant habeas petition. Rather, petitioner made a discovery request, arguing

that handwriting analysis of the forged checks would show that Ms. Ecatah’s involvement in the 

fraud scheme if the circuit court “would test [them].” In Syllabus Point 2 of State ex rel. Wyant v. 

Brotherton, 214 W. Va. 434, 589 S.E.2d 812 (2003), we held that:

“[i]n proceedings under the West Virginia Post–Conviction Habeas Corpus 

Act, W. Va. Code §§ 53-4A-1 to -11, discovery is available only where a court in 

the exercise of its discretion determines that such process would assist in resolving 

a factual dispute that, if resolved in the petitioner’s favor, would entitle him or her 

to relief.” Syllabus point 3, State ex rel. Parsons v. Zakaib, 207 W.Va. 385, 532 

S.E.2d 654 (2000).

Here, assuming, arguendo, that handwriting analysis would show Ms. Ecatah’s 

involvement in the credit card fraud scheme, we find that it would not entitle petitioner to relief. In 

Payne I, Payne II, and Payne III, as well as the instant case, petitioner has argued that Ms. Ecatah 

testified falsely at his trial by minimizing her own involvement in Mr. Bare’s murder and/or the 

fraud scheme that led to it. However, even if Ms. Ecatah minimized her involvement in the 

criminal activity, that would not mean that petitioner did not participate in Mr. Bare’s murder. 

“Credibility determinations are for a jury and not an appellate court.” Syl. Pt. 3, in part, 

State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). At petitioner’s trial, Ms. Ecatah testified 

that petitioner beat Mr. Bare in the head with a metal baton until the baton bent in half. However, 

9

In Syllabus Point 4 of Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981), we held, 

in pertinent part, that:

[a] prior omnibus habeas corpus hearing is res judicata as to all matters 

raised and as to all matters known or which with reasonable diligence could have 

been known; however, an applicant may still petition the court on the following 

grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing

[and] newly discovered evidence[.]
7

the jury also heard that Ms. Ecatah (1) had a criminal history of forgery; (2) previously lied to the 

police when questioned about Mr. Bare’s murder; and (3) testified differently from a statement she 

gave to the police. Finally, petitioner testified at his trial that, while he was a bystander, he did not 

participate in Mr. Bare’s murder. The jury obviously believed that petitioner participated in 

murdering Mr. Bare, as they convicted him of second-degree murder.

Proving that Ms. Ecatah lied to minimize her criminal involvement is different than 

petitioner being able to show that he was not involved in the murder. For example, while petitioner 

also relies on Mr. Kerns’s letter to show that he did not participate in the murder, in Payne III, we 

rejected the argument that that letter constituted newly discovered evidence that would warrant a 

new trial. 2019 WL 181454, at *3. We noted that Mr. Kerns’s letter was contradicted by his 

testimony at his own trial that both he and petitioner participated in Mr. Bare’s murder. Id. More 

specifically, Mr. Kerns testified that petitioner “bent that baton over [Mr. Bare’s] head,” at id., 

which is consistent with Ms. Ecatah’s testimony at petitioner’s trial. 

 

Given this and other findings from Payne I, Payne II, and Payne III, the circuit court found 

that, regardless of the alleged deficiency in habeas counsel’s performance, nothing would have 

changed the outcome of the prior proceedings. The standards for evaluating an ineffective 

assistance of counsel claim are as follows:

“In the West Virginia courts, claims of ineffective assistance of counsel are 

to be governed by the two-pronged test established in Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance 

was deficient under an objective standard of reasonableness; and (2) there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceedings would have been different.” Syllabus Point 5, State v. Miller, 194 

W.Va. 3, 459 S.E.2d 114 (1995).

. . . .

In deciding ineffective of assistance claims, a court need not address both 

prongs of the conjunctive standard of Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194 W.Va. 3, 459 S.E.2d 

114 (1995), but may dispose of such a claim based solely on a petitioner’s failure to 

meet either prong of the test.

Syl. Pts. 1 and 5, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995).

Here, we concur with the circuit court’s finding that there was no likelihood that, but for 

habeas counsel’s alleged errors, the result of the prior proceedings would have been any different

because all of the items claimed by petitioner to be newly discovered evidence and warranting a 

new trial fail to show that he did not participate in Mr. Bare’s murder. In summary, we agree with 

respondent that, although one of the claims was not adjudicated in the prior proceedings, we may 

affirm the denial of the instant petition as the various rulings and findings in Payne I, Payne II, and 

Payne III show that petitioner is not entitled to relief on any of the claims therein. Accordingly, we 
8

conclude that the circuit court did not abuse its discretion in denying the instant petition.10 

 For the foregoing reasons, we affirm the circuit court’s November 21, 2019, order 

dismissing with prejudice the instant petition for a writ of habeas corpus.

 Affirmed.

ISSUED: February 2, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

10As respondent notes, petitioner fails to clearly set forth his assignments of error in his 

brief. Like respondent, we presume that petitioner means for the headings in the brief to be his 

assignments of error. The headings are: (1) the dismissal of the instant petition should have been 

without prejudice; (2) petitioner should be granted a new trial because of newly discovered 

evidence; (3) counsel should be appointed and an evidentiary hearing held with regard to the 

instant petition; (4) habeas counsel provided ineffective assistance; and (5) the circuit court erred 

in finding that the putative habeas petition from July of 2018 was not filed with the court. We have 

addressed all of these issues herein. To the extent that petitioner’s brief could be interpreted as 

raising additional issues, we decline to address such issues pursuant to Rule 10(c)(7) of the West 

Virginia Rules of Appellate Procedure, which provides, in pertinent part, that “[t]he 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,” and that “[t]he Court may disregard errors that are not adequately supported by specific 

references to the record on appeal.” “Although we liberally construe briefs in determining issues 

presented for review, issues which are not raised, and those mentioned only in passing but are not 

supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W. Va. 

294, 302, 470 S.E.2d 613, 621 (1996), State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 

111 n.16 (1995) (finding that cursory treatment of an issue is insufficient to raise it on appeal).