                              STATE OF WEST VIRGINIA 

                            SUPREME COURT OF APPEALS 



Danielle Hilling, 
                                                                  FILED
Petitioner Below, Petitioner                                                       April 9, 2018 

                                                                                 EDYTHE NASH GAISER, CLERK
vs.) No. 17-0403 (Monongalia County 14-C-589)                                    SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


J.D. Sallaz, Acting Warden,
Lakin Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Danielle Hilling, by counsel Teresa J. Lyons, appeals the March 28, 2017, order
of the Circuit Court of Monongalia County denying her petition for post-conviction habeas corpus
relief. Respondent J.D. Sallaz, Acting Warden, Lakin Correctional Center, by counsel, Sarah B.
Massey, filed a response in support of the circuit court’s order.1 Petitioner filed a reply. On appeal,
petitioner argues that the circuit court erred in finding that an omnibus hearing was unnecessary, in
denying petitioner’s motion to expand the record, and in denying habeas relief.

        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.

        In May of 2006, petitioner was indicted for one count of first-degree murder and one
count of conspiracy. At trial, petitioner was convicted of both counts. Ultimately, petitioner was
sentenced to life without the possibility of parole for first degree murder and one to five years of
incarceration for conspiracy, said sentences to be served concurrently. Petitioner appealed her
conviction. The Court refused the appeal by order entered in May of 2008.

       In June of 2009, petitioner, by previous counsel, filed a petition for writ of habeas corpus.
The circuit court summarily denied those claims without an omnibus evidentiary hearing.

       1
         Petitioner originally listed Lori Nohe as respondent to this action. However, J.D. Sallaz is
now the acting warden at the facility in question. Accordingly, the proper public officer has been
substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure.

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Petitioner appealed the denial, and this Court affirmed the circuit court order. Hilling v. Nohe, No.
12-0131, 2013 WL 3185089 (W.Va. June 24, 2013)(memorandum decision).

        Thereafter, petitioner filed a second petition for writ of habeas corpus in the Circuit Court
of Monongalia County asserting ineffective assistance of trial counsel. Counsel was appointed for
petitioner who filed an amended petition and a supporting memorandum of law. Respondent filed
an answer. In a thirteen-page order entered on March 28, 2017, the circuit court denied the petition
without holding an omnibus hearing. The circuit court found that “[p]etitioner has not shown that
trial counsel’s performance was so deficient under an objective standard of reasonableness that she
was denied the effective assistance of counsel.” Further, the circuit court found that “[p]etitioner
has not shown that but for trial counsel’s actions and/or omissions, the result of her trial and
sentencing would have been different.” In regard to an omnibus hearing, the court found that
petitioner “has not disclosed an expert opinion or indicated that any expert or other testimony
would be taken at a hearing” and that “petitioner has not identified any evidence she wishes to
introduce in support of her [p]etition.” Petitioner now appeals that order.

       We apply the following standard of review in habeas appeals:

               “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).

        On appeal, petitioner argues that the circuit court abused its discretion by dismissing her
amended petition without affording her an omnibus hearing or another opportunity to expand the
record. Respondent argues that petitioner had no entitlement to expand the record and that the
circuit court may deny habeas petitions that are procedurally barred or meritless. We agree with
respondent and find no error in the circuit court’s denial of petitioner’s habeas petition.

       West Virginia Code § 53-4A-7(a) provides

               [i]f the petition, affidavits, exhibits, records and other documentary
       evidence attached thereto, or the return or other pleadings, or the record in the
       proceedings which resulted in the conviction and sentence . . . show to the
       satisfaction of the court that the petition is entitled to no relief . . . the court shall
       enter an order denying the relief sought.

Additionally, we have previously held as follows:

               ‘A court having jurisdiction over habeas corpus proceedings may deny a
       petition for a writ of habeas corpus without a hearing and without appointing
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        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. Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d
        657 (1973).’ Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).

Anstey, 237 W.Va. at 412, 787 S.E.2d at 866, Syl. Pt. 3. The circuit court carefully reviewed and
analyzed petitioner’s memorandum of law in support of her amended petition, which provided a
detailed presentation of her argument and included relevant transcripts as exhibits for the circuit
court’s consideration. Additionally, the judge presiding over the underlying habeas proceeding
had been the trial court judge in petitioner’s criminal trial. Petitioner does not dispute that the
circuit court correctly applied the law regarding the ineffective assistance of counsel claims. Based
on its analysis, the circuit court concluded that petitioner was not entitled to the requested habeas
relief. Therefore, we find no abuse of discretion in the circuit court denying the amended petition
for habeas corpus.

         Further, petitioner argues that summary dismissal was erroneous because she would have
introduced additional exhibits, such as affidavits, to support her claims for ineffective assistance of
counsel, if she had been given an omnibus hearing. However, West Virginia Code § 53-4A-2
clearly provides that “[a]ffidavits, exhibits, records or other documentary evidence supporting the
allegations of the petition shall be attached to the petition unless there is a recital therein as to why
they are not attached.” At no point in either her petition or the memorandum of law does petitioner
assert that there was further information to support her petition that would only be available at an
omnibus hearing; petitioner mentioned no other documents or evidence that would be
forthcoming. In short, the record shows that petitioner’s filings before the circuit court appear to
contain all of the information relevant to her petition. Rule 9(a) of the West Virginia Rules
Governing Post-Conviction Habeas Corpus Proceedings provides that “[i]f the court determines
that an evidentiary hearing is not required, the court shall include in its final order specific findings
of fact and conclusions of law as to why an evidentiary hearing was not required.” The circuit court
properly found that petitioner did not identify any information that would be presented at an
omnibus hearing and that enough evidence was presented for the circuit court to rule on the
petition. Therefore, we find that the circuit court did not abuse is discretion by not holding an
omnibus hearing or requesting expansion of the record.

         Petitioner further alleges that the circuit court erred in dismissing the petition when the
respondent did not move for dismissal pursuant to Rule 12(b)(6) or Rule 56 of the West Virginia
Rules of Civil Procedure. Petitioner asserts that both rules permit a petitioner to file a response to
avoid dismissal and that she was denied an opportunity to respond. We disagree. As set forth above
in West Virginia Code § 53-4A-7(a), it is in the circuit court’s discretion to enter an order denying
relief if the circuit court is satisfied by the evidence presented. If the circuit court finds that a
petitioner is not entitled to relief, there is no requirement to request additional information that
might save the petition from dismissal.

        Expansion of the record in habeas proceedings is governed by Rule 8(a) of the West
Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings which provides that “[i]f
the petition is not summarily dismissed, the court may direct that the record be expanded by the
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parties” (emphasis added). The rule does not require that the circuit court give an opportunity to
expand the record; it is discretionary. See Rosen v. Rosen, 222 W.Va. 402, 409, 664 S.E.2d 743,
750 (2008) (“[a]n elementary principle of statutory construction is that the word ‘may’ is
inherently permissive in nature and connotes discretion.”). The petitioner should not have relied on
the circuit court to request an expansion of the record. Accordingly, we find that the circuit court
did not err in dismissing the amended petition of habeas corpus on its own motion.

        Finally, petitioner argues that the circuit court erred in denying her petition because she
received ineffective assistance of counsel. Specifically, petitioner claims that her attorney’s
representation was deficient for three distinct reasons: (1) counsel failed to strike a juror who was
potentially a close friend of a friend of the victim; (2) counsel did not file a written motion
requesting bifurcation of the guilt and mercy phases of petitioner’s murder trial; and (3) counsel
failed to seek severance of petitioner’s trial from that of her co-defendant.

        The circuit court thoroughly addressed each of these three claims in its order denying
petitioner habeas relief. The circuit court’s order includes well-reasoned findings and conclusions
as to the assignment of error concerning ineffective assistance of counsel now raised on appeal,
and we find no error or abuse of discretion in the circuit court’s denial of petitioner’s amended
petition. Because we find no error, we hereby adopt and incorporate the circuit court’s findings and
conclusions as they relate to petitioner’s assignments of error raised on appeal and direct the Clerk
to attach a copy of the circuit court’s March 28, 2017, “Order Dismissing Petitioner’s Petition for
Writ of Habeas Corpus” to this memorandum decision.

        For the foregoing reasons, we affirm the circuit court’s March 28, 2017, order denying
petitioner’s instant petition for writ of habeas corpus.

                                                                                          Affirmed.

ISSUED: April 9, 2018

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




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