                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

Nicole L. Kees,                                                                      FILED
Petitioner Below, Petitioner                                                    November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
vs.) No. 17-1111 (Berkeley County 16-C-625)                                      SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 

J.D. Sallaz, Superintendent,
Lakin Correctional Center,
Respondent Below, Respondent


                                                          MEMORANDUM DECISION

       Petitioner Nicole L. Kees, by counsel Jason M. Stedman, appeals the Circuit Court of
Berkeley County’s November 21, 2017, order denying her amended second petition for a writ of
habeas corpus. Respondent J.D. Sallaz, Superintendent1, by counsel Robert L. Hogan, filed a
response. On appeal, petitioner asserts that the circuit court erred in denying her habeas relief
based upon a favorable change in the law and ineffective assistance of counsel.

        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.

        In January of 2004, petitioner and Jashua Frocke forged and uttered two checks, and
petitioner obtained heroin with the unlawfully obtained money. Petitioner later gave Mr. Frocke
some of the purchased heroin, and he fatally overdosed. Petitioner was subsequently indicted on
one count of murder under the felony murder doctrine.2 Following a jury trial, on September 30,
2004, petitioner was convicted of this charge, and on January 7, 2005, she was sentenced to life
imprisonment with mercy.
                                                            
              1
        Effective July 1, 2018, the positions formerly designated as “wardens” are now
designated “superintendents.” See W.Va. Code § 15A-5-3.
              2
         West Virginia Code § 61-2-1 provides, in relevant part, that “[m]urder . . . in the
commission of . . . a felony offense of . . . delivering a controlled substance as defined in article
four, chapter sixty-a of this code, is murder of the first degree.”

        Additionally, petitioner was indicted for delivery of a controlled substance, forgery, and
uttering, but these charges were either dismissed or disposed of by plea agreement, and they are
not the subject of the instant matter.
                                                                   1
 
        Petitioner appealed her conviction to this Court, which we refused on April 24, 2008.
Next, petitioner filed a petition for a writ of habeas corpus and, following appointment of
counsel, an amended habeas petition. The circuit court denied petitioner’s habeas petition on
September 21, 2011, which we affirmed in Kees v. Nohe, No. 11-1465, 2013 WL 149614 (W.Va.
Jan. 14, 2013)(memorandum decision).3

              In 2017, the Legislature enacted a new statute that, in pertinent part, states,

              Any person who knowingly and willfully delivers a controlled substance . . . in
              violation of the provisions of section four hundred one, article four of this chapter
              for an illicit purpose and the use, ingestion or consumption of the controlled
              substance or counterfeit controlled substance alone or in combination with one or
              more other controlled substances, proximately causes the death of a person using,
              ingesting or consuming the controlled substance, is guilty of a felony and, upon
              conviction thereof, shall be imprisoned in a state correctional facility for a
              determinate sentence of not less than three nor more than fifteen years.

W.Va. Code § 60A-4-416(a). Petitioner, who had filed a second habeas petition in November of
2016, was appointed counsel, who filed an amended second petition on November 8, 2017. In
petitioner’s amended second petition, she argued that West Virginia Code § 60A-4-416(a) should
be applied retroactively and that she should be resentenced in accordance with that statute.
Petitioner also asserted an ineffective assistance of habeas counsel claim.4 The circuit court
denied petitioner’s amended second petition by order entered on November 21, 2017. It is from
this order that petitioner appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief 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).
Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).
                                                            
              3
         Following the denial of her petition in the circuit court, petitioner filed a habeas petition
in federal court. That petition was also denied and dismissed.
              4
         Generally, a petitioner is entitled to only one habeas corpus proceeding, unless a
subsequent petition alleges “ineffective assistance of counsel at the omnibus habeas corpus
hearing; newly discovered evidence; or, a change in the law, favorable to the applicant, which
may be applied retroactively.” Syl. Pt. 4, in part, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d
606 (1981). Because petitioner’s second petition alleged a favorable change in the law and
ineffective assistance of habeas counsel, it was not barred by res judicata. See id.
                                                               2
 
        Petitioner raises two assignments of error on appeal. First, petitioner claims the circuit
court erred in denying relief based upon a favorable change in the law. Petitioner argues that the
Legislature’s enactment of West Virginia Code § 60A-4-416 evidences its view that a life
sentence is inappropriate for the crime petitioner committed. Petitioner contends that because
this statute is substantive, it is applied retroactively, and she should be resentenced to a
determinate term of imprisonment of not less than three nor more than fifteen years. In support
of her argument that the statute should apply retroactively, petitioner cites law discussing the
retroactive application of “new constitutional rules of criminal procedure” announced in judicial
decisions. See Teague v. Lane, 489 U.S. 288 (1989); Penry v. Lynaugh, 492 U.S. 302 (1989); and
Welch v. U.S., -- U.S. --, 136 S.Ct. 1257 (2016).

        Petitioner’s discussion of the analytical framework for determining whether judicial rules
should apply retroactively is immaterial to a determination of whether a newly enacted statute
should apply retroactively. Indeed, the law relevant to the latter determination is well settled:
“The presumption is that a statute is intended to operate prospectively, and not retrospectively,
unless it appears, by clear, strong and imperative words or by necessary implication, that the
Legislature intended to give the statute retroactive force and effect.” Syl. Pt. 2, Martinez v.
Asplundh Tree Expert Co., 239 W.Va. 612, 803 S.E.2d 582 (2017) (citations omitted); see also
W.Va. Code § 2-2-10(bb) (“A statute is presumed to be prospective in its operation unless
expressly made retrospective[.]”). West Virginia Code § 60A-4-416 neither necessarily implies
retroactive application nor contains language evidencing an intent for retroactive application.
Accordingly, we find no error in the circuit court’s denial of relief on this ground.

        Petitioner also assigns as error the circuit court’s denial of her ineffective assistance of
habeas counsel claim. Petitioner claims the court erred because habeas counsel rendered
deficient representation in failing to review the Losh list5 with her, failing to “adequately allege”
that the felony murder statute was inapplicable to her case, and failing to “adequately argue” that
the decedent’s cause of death was not sufficiently proven.

        In Syllabus Point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we set forth
the standard applicable to ineffective assistance of counsel claims:

                     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.
Both prongs of this test need not be addressed. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky,
195 W.Va. 314, 465 S.E.2d 416 (1995). Rather, courts “may dispose of such a claim based solely
on a petitioner’s failure to meet either prong of the test.” Id.

                                                            
              5
        See Losh v. McKenzie, 166 W.Va. 762, 768-69, 277 S.E.2d 606, 611 (1981) (listing the
“most frequently raised” grounds for habeas relief).
                                                               3
 
         We find no error in the circuit court’s determination that petitioner’s claims fail to satisfy
the Miller/Strickland test. First, the circuit court noted that petitioner initialed each waived
ground on the Losh list and attached a signed “Certificate of Petitioner” to the list certifying that
her attorney advised her regarding the grounds asserted and waived.6 Accordingly, petitioner’s
assertions regarding her counsel’s failure to review the Losh list with her are contradicted by the
record below. Moreover, petitioner fails to establish that the result of her initial habeas would
have been different assuming any deficiency in this regard. For example, petitioner does not
allege that she initially waived a ground that she believes would have been meritorious.
Therefore, petitioner failed to establish ineffective assistance of counsel with respect to her Losh
list assertions.

        Second, petitioner claims that habeas counsel failed to “adequately argue” the
applicability of felony murder to her case. Petitioner argues that she and the decedent
“simultaneously and jointly acquired” the heroin, thereby constituting joint possession but not
delivery for purposes of felony murder. Petitioner asserts that, had habeas counsel “articulated
this argument more clearly,” the result of her initial habeas would have been different.

        Petitioner again fails to demonstrate that counsel’s representation was deficient. We first
note that petitioner does not assert that habeas counsel declined to argue the applicability of
felony murder; rather, she argues that counsel did not “adequately argue” its applicability. But
petitioner neglects to identify any arguments or facts that were not raised. Accordingly, we find
no error in the circuit court’s conclusions that petitioner failed to establish ineffective assistance
of counsel with respect to these allegations, and that she is merely attempting to circumvent the
doctrine of res judicata by relitigating this previously unsuccessful argument under the guise of
an ineffective assistance of counsel claim. See Harold M. v. Ballard, No. 15-0813, 2016 WL
2970849 (W.Va. May 20, 2016)(memorandum decision).

        Petitioner’s final ineffective assistance of counsel argument concerns habeas counsel’s
failure to argue that the decedent’s cause of death was not sufficiently proven at trial. Petitioner
contends that the decedent used heroin throughout the day, and no medical evidence was
presented to establish that the specific heroin petitioner gave the decedent was the heroin that
caused his death.

        Petitioner’s argument ignores the testimony at trial from those present in the motel room
in which the decedent overdosed that petitioner, and no one else, brought the heroin into the
room. Thus, we find no error in the circuit court’s conclusion that a rational jury could find that
petitioner gave the decedent the heroin that killed him or its conclusion that “[c]ounsel cannot be
ineffective for failing to raise a meritless argument[.]”

       For the foregoing reasons, we affirm the circuit court’s November 21, 2017, order
denying petitioner’s amended second petition for a writ of habeas corpus.

                                                                                            Affirmed.

                                                            
              6
        Petitioner failed to include these documents in the appendix record, but she does not
challenge this conclusion on appeal.
                                                               4
 
ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment
 

 

 

 

 

 




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