                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
Nicole Kees,

Petitioner Below, Petitioner                                                             FILED

                                                                                       January 14, 2013
                                                                                    RORY L. PERRY II, CLERK
vs) No. 11-1465 (Berkeley County 06-C-70)                                         SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA

Lori Nohe, Warden,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

       Petitioner Nicole Kees, by counsel Christopher J. Prezioso, appeals the September 21,
2011 order of the Circuit Court of Berkeley County denying her petition for a writ of habeas
corpus. Respondent Lori Nohe, by counsel Christopher J. Quasebarth, has filed a response, to
which petitioner has replied.

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        On January 7, 2005, petitioner was sentenced to a term of incarceration of life, with
mercy, following her conviction by jury of felony murder. Petitioner was also sentenced to two
terms of incarceration of one to ten years in prison following her guilty plea to two counts of
felony forgery, said sentences to run consecutively to each other but concurrently to her life
sentence. Petitioner appealed her conviction for felony murder, but this Court refused her
petition for appeal by order entered on April 24, 2008. On July 7, 2010, petitioner, by counsel,
filed an amended petition for writ of habeas corpus in the circuit court. By order entered on
September 21, 2011, this petition was denied absent an omnibus evidentiary hearing.

        On appeal, petitioner alleges that the circuit court erred in denying her petition without
holding an evidentiary hearing. While petitioner lists eight distinct assignments of error, her
argument is best characterized as alleging error on the part of the circuit court for failing to hold
an evidentiary hearing because probable cause existed to believe she was entitled to certain
relief. Each of petitioner’s assignments of error, aside from the first, re-alleges each of her
grounds for relief as set forth in the habeas petition filed below. Respondent argues that the
circuit court did not err in denying the petition and that West Virginia law allows for summary
dismissal of habeas petitions. According to respondent, the circuit court properly and thoroughly
analyzed each of petitioner’s habeas claims and properly concluded that they lacked merit.
Because such claims could be decided by reference to the record, respondent argues that no
evidentiary hearing was necessary.
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       This Court has previously held that

       [i]n 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). Further, we have also
held that

       “[a] court having jurisdiction over habeas corpus proceedings may deny a petition
       for a writ of habeas corpus without a hearing . . . 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. 1, Perdue v. Coiner,
       156 W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 2, in part, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). After
careful consideration of the parties’ arguments, this Court concludes that the circuit court did not
abuse its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit
court’s “Order Denying Amended Petition For Writ Of Habeas Corpus” entered on September
21, 2011, we hereby adopt and incorporate the circuit court’s well-reasoned findings and
conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a
copy of the circuit court’s order to this memorandum decision.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 21, 2011 order denying the petition for writ of habeas corpus is affirmed.


                                                                                             Affirmed.

ISSUED: January 14, 2013

CONCURRED IN BY:

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




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