                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Monica Boggs,

Petitioner Below, Petitioner                                      FILED

                                                              November 7, 2016
vs) No. 15-1001 (Berkeley County 13-C-321)                          released at 3:00 p.m.
                                                                  RORY L. PERRY, II CLERK

                                                                SUPREME COURT OF APPEALS

Lori Nohe, Warden,                                                   OF WEST VIRGINIA


Respondent Below, Respondent


                             MEMORANDUM DECISION

       Petitioner, Monica Boggs, by counsel Kevin D. Mills and Shawn R. McDermott,
appeals the Circuit Court of Berkeley County’s September 21, 2015, order denying her
petition for writ of habeas corpus. Respondent, Lori Nohe, Warden of the Lakin Correctional
Center, by counsel Cheryl K. Saville, Assistant Prosecuting Attorney, filed a response. On
appeal, petitioner argues that the circuit court erred in failing to conduct an evidentiary
hearing on the habeas petition and that she was deprived of effective assistance of counsel
by virtue of her trial counsel’s deficient and prejudicial performance.

       This Court has considered the parties’ briefs, oral arguments, and the record on
appeal. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules
of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion.
For the reasons expressed below, we reverse the September 21, 2015, order, remanding the
case with directions.

        This matter arises out of events occurring on the evening of August 19, 2008, when
petitioner called 911 reporting that she believed her seven-month-old infant son, Skyler, was
dead. Attempts by neighbors and emergency medical personnel to revive the infant proved
futile, and Skyler was pronounced dead at a nearby hospital. Questioning of petitioner and
others by law enforcement almost immediately proceeded. Petitioner was questioned by
investigating officers on several occasions. Some of the interviews were recorded and others
were not. The questioning by law enforcement changed as information from the medical
examiner became available. Two interviews with Sergeant David Boober of the West
Virginia State Police were recorded. Petitioner was not in custody. Nevertheless, she was




                                              1

advised of her Miranda1 rights and signed a written waiver of rights. Over the course of the
multiple interviews, petitioner’s statements evolved, particularly as to detail and a time-line
of events. Ultimately, petitioner stated that, several days earlier, she had thrown a bottle at
Skyler which struck him in the face resulting in bruising near his left eye. Additionally, she
stated that she had further injured Skyler when she tossed or threw the baby “pretty hard”
into his crib resulting in him hitting his head on a toy piano she did not know was in the crib.
She also stated she heard a pop when the infant struck the piano. Petitioner did not tell
anybody what she had done. She also stated that Skyler appeared okay and subsequently
drank a bottle. He slept more, but seemed normal such that she had taken pictures of him.
She also repeatedly remarked that she did not mean to hurt Skyler and that hurting him was
an accident. Petitioner’s trial counsel did not mount a challenge to the voluntariness of the
multiple statements made by petitioner to law enforcement.

       Dr. Matrina Schmidt, the medical examiner, conducted an autopsy of the infant
finding, among other things, a skull fracture that extended from the left parietal bond, over
and across the midline, onto the right parietal bond as well as brain hemorrhaging with
noticeable blood in the cranial vault. The fracture was completely through the skull. There
were two contusions on the back of Skyler’s head and one on his forehead. Dr. Schmidt also
reported findings including bruising near the left eye, on the right side of his neck, and on
various other parts of the infant’s body together with some abrasions on the midline of the
neck and on the left lower leg. The cause of death was determined to be blunt force head
trauma that Dr. Schmidt believed to be a homicide. Petitioner’s trial counsel did not hire a
medical expert to address the autopsy report or to counter the testimony and opinions of Dr.
Schmidt as advanced at trial.

       In September 2009, following a three-day jury trial with no direct physical evidence
and wherein petitioner did not testify, petitioner was convicted of three felony offenses
including: (1) Death of a Child by a Parent in violation of W. Va. Code § 61-8D-2a(a)
(1994); (2) Child Abuse Causing Bodily Injury in violation of W. Va. Code § 61-8D-3(a)
(1996); and (3) Gross Child Neglect Causing Substantial Risk of Serious Bodily Injury in
violation of W.Va. Code § 61-8D-4(e) (1996).2 Upon completion of a pre-sentence

       1
         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), stands
for the fundamental constitutionally derived principle that, prior to a custodial interrogation,
a defendant must be advised that he or she has the right to remain silent, warned that anything
he or she says can and will be used against them, and informed that he or she has a right to
an attorney.
       2
       In 2014, the Legislature rewrote W. Va. Code § 61-8D-4(e). See W. Va. Code § 61­
8D-4(e) (2014). Because the underlying events giving rise to the instant proceeding occurred

                                               2

investigation report and a diagnostic evaluation as well as evidence and argument, the Circuit
Court of Berkeley County sentenced petitioner to serve consecutive sentences with a total
effective sentence of forty-two to fifty years incarceration. Post-trial, petitioner filed a direct
appeal of her conviction. This Court, finding no substantial question of law and no
prejudicial error, affirmed the conviction. State v. Boggs, No. 11-0001, (W. Va. May 27,
2011) (memorandum decision).

        On or about April 26, 2013, petitioner filed her verified petition for writ of habeas
corpus together with a Losh3 checklist of grounds for post-conviction habeas corpus relief.
The circuit court held a status hearing and directed respondent to file a complete response,
which was complied with on or about September 3, 2013. Petitioner sought an evidentiary
hearing on the issue of ineffective assistance of counsel, but requested a continuance of
proceedings in order to consult with an expert witness. Petitioner sought to present her own
testimony and to call her trial counsel, three investigating law enforcement officers, her
forensic psychologist, and a newly retained medical expert. Respondent objected to holding
an evidentiary hearing on the grounds there was sufficient evidence in the record to address
all the claims.

       Thereafter, petitioner disclosed the report of her forensic medical expert, Dr. William
Hauda. The parties entered into a stipulation whereby the circuit court would consider Dr.
Hauda’s report in assessing petitioner’s claims without the necessity of taking testimony from
Dr. Hauda. Petitioner orally renewed the request for an evidentiary hearing. Respondent
again objected to the request for an evidentiary hearing. The circuit court directed the parties
to submit proposed orders taking into account the record and the stipulated medical evidence
of Dr. Hauda. It was agreed the parties would address the issue of the necessity of an
evidentiary hearing in the proposed orders. Thereafter, the circuit court concluded, by order
entered September 21, 2015, that petitioner failed to allege any set of facts upon which
habeas corpus relief could be granted and that no evidentiary hearing was required because
all matters from which facts and conclusions must be drawn were readily determined by
reference to the record.



in 2008, we will apply the version of the statute that was in effect at the relevant time. See
W. Va. Code § 61-8D-4(e) (1996).
       3
        Losh v. McKenzie, 160 W.Va. 962, 277 S.E.2d 606 (1981), defined the requirements
of an omnibus habeas hearing and identified a list of the standard grounds typically available
to assert for habeas relief and which can be used as a checklist to assure counsel has
considered and discussed each separate ground which might apply to the case with the
petitioner.

                                                3

       We review the denial of a petition for a writ of habeas corpus 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).

       Petitioner appeals the September 21, 2015, habeas order to this Court raising two
assignments of error. In her first assignment of error, petitioner asserts that the circuit court
abused its discretion in failing to grant an evidentiary hearing because there were outstanding
factual issues. The claimed factual issues primarily relate to the voluntariness of the
statements of petitioner to law enforcement officers.

        With respect to petitioner’s second assignment of error asserting an ineffective
assistance of counsel claim, there are six areas of alleged ineffective, deficient, and
prejudicial performance on the part of trial counsel raised on appeal. First, it is asserted that
counsel was ineffective in failing to challenge the voluntariness of the statements.
Additionally, petitioner asserts that trial counsel should have requested an instruction
pursuant to State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978), to the effect that the jury
could consider the voluntariness of the statements. Second, petitioner contends that trial
counsel was ineffective with respect to his handling of the medical testimony. Specifically,
petitioner contends trial counsel was ineffective in failing to request a hearing to test the
reliability of the State medical examiner’s opinions, failing to meaningfully object to
testimony of the medical examiner, and failing to retain a medical expert to challenge the
opinions of the medical examiner. Third, it is claimed that counsel was ineffective with
respect to a juror issue. Specifically, it is asserted that counsel was deficient in not moving
to conduct voir dire or strike a juror who indicated to a bailiff the morning of the second day
of trial that, upon seeing a single picture in Skyler’s baby book, she realized she knew the
biological father of the infant. The biological father was not involved in Skyler’s birth or
life, had not been listed as a witness, and did not appear at trial. Fourth, petitioner states that
trial counsel was ineffective in failing to object to the use of purportedly gruesome and
unduly prejudicial autopsy photos during the prosecution’s closing argument. Fifth,
petitioner claims trial counsel was ineffective when he admitted petitioner’s actions were
intentional rather than negligent thereby depriving petitioner of her theory of the case and a
basis by which the jury could find her not guilty. Sixth, ineffectiveness is asserted in the

                                                4

failure of trial counsel to move for a continuance given his busy schedule, which impeded
his ability to effectively prepare her defense.

       Petitioner’s contentions go directly to the performance of her trial counsel. With
respect to the claims of ineffective assistance of counsel we have held:

                      In 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.

Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

        We recognize that the law is settled that, in appropriate circumstances, a court may
deny a petition for a writ of habeas corpus without a hearing when the evidence demonstrates
that the petitioner is entitled to no relief. Syl. pt. 1, Perdue v. Coiner, 156 W. Va. 467, 194
S.E.2d 657 (1973). See also W. Va. Rules Governing Post-Conviction Habeas Corpus
Proceedings Rule 9(a) (providing that if a court determines that an evidentiary hearing is not
required, it shall include in its final order findings of fact and conclusions of law explaining
why an evidentiary hearing was not required). This Court has also recognized that the
decision of whether to conduct an evidentiary hearing is largely left to the discretion of the
court before which the writ is made returnable. Gibson v. Dale, 173 W. Va. 681, 319 S.E.2d
806 (1984). Importantly, we have also observed that the discretion afforded is not unlimited.
Rather, “the court must be guided by the necessities of each particular case.” Id., at 688-89,
319 S.E.2d at 813. In other words, the facts of each case determine the purpose, scope, and
necessity of an evidentiary hearing in habeas proceedings.

       Here, this Court confronts a case with convictions, in large part, based upon
statements of petitioner to law enforcement in the absence of any direct physical evidence
linking petitioner to the death of Skyler. Further, as the record reflects, the context consists
of a nineteen year old with borderline cognitive functioning and a variety of psychological
problems who faced multiple interrogations over the course of two days by several law
enforcement officers shortly after the death of her son. The trial attorney very well may have
had reasonable motive and strategy for his conduct with respect to failing to challenge the
voluntariness of petitioner’s statements and his other trial conduct. However, under the
particular facts of this case, we are unable to evaluate the reasonableness of trial counsel’s

                                               5

performance without providing trial counsel the courtesy of being able to explain his strategy,
tactics, and course of action. Moreover, given the nature of the claims of ineffectiveness, the
testimony of trial counsel cannot be conducted and evaluated in a vacuum. Petitioner must
be afforded the opportunity to advance her claims by calling her other intended witnesses.
In determining that the circuit court exceeded its discretion in failing to hold an evidentiary
hearing, we reach no conclusion as to the merits of any of petitioner’s ineffective assistance
of counsel claims.

        Accordingly, based upon the foregoing, we reverse and remand this case for the circuit
court to conduct an evidentiary hearing for the purpose of taking testimony to allow the court
to examine petitioner’s claims of ineffective assistance of counsel.


                                                                   Reversed and Remanded.
ISSUED: November 7, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin

DISSENTING AND WRITING SEPARATELY:

Justice Margaret L. Workman
Justice Allen H. Loughry II



Loughry, J., dissenting:

       The majority’s decision to remand this case for an evidentiary hearing is a decided
waste of judicial time and resources. The petitioner sought an evidentiary hearing on one
lone issue:4 her assertion that defense counsel provided an ineffective defense by failing to

       4
        During a September 30, 2013, status conference in the habeas case, the petitioner’s
counsel told the circuit court that there were two issues for which he sought an evidentiary
hearing: ineffective assistance for failing to move to suppress the statements, and ineffective
assistance pertaining to trial counsel’s investigation and handling of medical evidence.
Subsequently, the parties agreed to submit the second issue to the circuit court for decision

                                              6

seek the suppression of her statements to the police. In the subject police statements, she
admitted throwing her seven-month-old son into his crib, causing the baby’s head to strike
a hard plastic toy. The baby, who suffered a severe skull fracture and brain hemorrhaging,
died due to blunt force trauma to the head. An evidentiary hearing is wholly unnecessary
because the record is fully developed on the sound, strategic basis for trial counsel’s decision
not to file a suppression motion. Furthermore, the petitioner has failed to proffer any credible
basis to suggest that the trial court would have granted the motion to suppress had it been
made by trial counsel. Because the petitioner has failed to demonstrate a legitimate need to
hold an evidentiary hearing at this juncture, I am compelled to dissent.

      When the existing record is sufficient, as it is in this case, there is simply no basis for
holding an evidentiary hearing in a post-conviction habeas corpus proceeding:

               “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. 1, in part, Perdue v. Coiner, 156
       W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 1, State ex rel. Farmer v. Trent, 206 W.Va., 523 S.E.2d 547 (1999); accord W.Va.
Code § 53-4A-7(a) (2016);5 R. Post-Conviction Habeas Corpus, Rule 9(a) (2016).6


on a supplemented record.
       5
           West Virginia Code § 53-4A-7(a) provides, in part:

               If 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, or the record or
       records in a proceeding or proceedings on a prior petition or petitions filed
       under the provisions of this article, or the record or records in any other
       proceeding or proceedings instituted by the petitioner to secure relief from his
       conviction or sentence, show to the satisfaction of the court that the petitioner
       is entitled to no relief, or that the contention or contentions and grounds (in
       fact or law) advanced have been previously and finally adjudicated or waived,
       the court shall enter an order denying the relief sought.
       6
      Rule 9(a) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in
West Virginia provides:

                                               7

Consistent with this axiomatic principle, this Court has regularly affirmed habeas orders
where circuit courts declined to hold evidentiary hearings on claims of ineffective assistance
of counsel.7 The decision to conduct an evidentiary hearing rests within the sound discretion
of the circuit court “guided by the necessities of each particular case.” Gibson v. Dale, 173
W.Va. 681, 688-89, 319 S.E.2d 806, 813 (1984).

       After a thorough review, the circuit court concluded that all of the matters alleged in
the petitioner’s habeas petition could be decided on the existing record without additional
factual development. The habeas circuit court judge was intimately familiar with all of the
evidence and arguments raised as he was the presiding judge during the petitioner’s trial.

       Demonstrative of the folly of remand is the fact that the trial record indicates the basis
for defense counsel’s decision not to seek suppression of the petitioner’s statements to the
police.8 During a pre-trial conference on August 10, 2009, defense counsel told the trial
court that, after investigating the issue, he found no grounds to support such a motion. In
explanation of his decision, defense counsel initially determined that the police officers had



               Determination by court.–If the petition is not dismissed at a previous
       stage in the proceedings, the circuit court, after the answer is filed, shall, upon
       a review of the record, if any, determine whether an evidentiary hearing is
       required. If 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.
       7
        A few of the many recent examples include Catlett v. Pszczolkowski, No. 15-0567,
2016 WL 4611130 (W.Va. Sept. 6, 2016) (memorandum decision); Messer v. Ballard, No.
15–0423, 2016 WL 1735247 (W.Va. Apr. 29, 2016) (memorandum decision); Justis v.
Pszczolkowski, No. 15–03692016 WL 1551052 (W.Va. April 15, 2016) (memorandum
decision); Tex S. v. Pszczolkowski, 236 W.Va. 245, 253-54, 778 S.E.2d 694, 702-03 (2015);
Tincher v. Dingus, No. 15-0295, 2015 WL 6181436 (W.Va. Oct. 20, 2015) (memorandum
decision); State ex rel. Waldron v. Scott, 222 W.Va. 122, 127, 663 S.E.2d 576, 581 (2008).



       8
        “The primary purpose of an omnibus hearing is grounded in providing the [c]ourt
with evidence from ‘the most significant witness, the trial attorney,’ in order to give that
individual ‘the opportunity to explain the motive and reason behind his or her trial
behavior.’” Tex S. v. Pszczolkowski, 236 W.Va. 245, 253-54, 778 S.E.2d 694, 702-03
(2015)(quoting State v. Miller, 194 W.Va. 3, 15, 459 S.E.2d 114, 126 (1995)).

                                               8

properly obtained a Miranda9 waiver from the petitioner. Counsel informed the court that

       [a]s far as the statements are concerned, we’ve had all of the recorded
       statements transcribed. We’ve also been provided with . . . a waiver of rights
       form, executed by Ms. Boggs. In the transcripts of the – the troopers go
       through the waiver with her, confirm that she understands her rights and she
       wants to go ahead and proceed with the statement.

Counsel observed secondarily that although the initial statement had been taken early in the
morning, this was due to the fact that the child had been taken to the hospital late the
previous night. Finally, counsel informed the trial court that he had the petitioner evaluated
by a forensic psychologist to confirm she was capable of waiving her rights:

              We’ve also had Ms. Boggs evaluated by a forensic psychologist to
       make sure that she has no problems with intelligence or being able to
       understand. That’s Dr. Bernie Lewis and we met on Friday at Dr. Lewis’
       office and went through all of that. We don’t see any possible challenges
       there.
              Ms. Boggs can understand or appreciate the nature of what she was
       doing at the time. Her statements were given intelligently and knowingly after
       a waiver of her rights. At least that is what, from my own investigation,
       reveals that I don’t have any grounds to challenge that.

       In addition to requesting a wholly unnecessary examination of trial counsel, the
petitioner seeks to have law enforcement officers testify at a habeas proceeding. These same
officers previously testified at trial regarding both the content and the circumstances of the
petitioner’s statements and were subject to cross-examination on these issues. Critically, the
petitioner’s habeas claim is centered on the issue of her lawyer’s decision not to make a
suppression motion; the admissibility of the statements themselves has already been upheld
by this Court in the direct appeal. See State v. Boggs, No. 11-0001 (W.Va. May 27, 2011)
(memorandum decision). To require the officers to be subjected to reexamination on these
issues could not possibly produce any information relevant to defense counsel’s pre-trial
thought processes.10




       9
        Miranda v. Arizona, 384 U.S. 436 (1966) (requiring that persons in custodial
interrogation be advised of rights under Fifth Amendment of U.S. Constitution).
       10
            See supra note 5.

                                              9

       To prevail on a claim of ineffective assistance of counsel, the petitioner has the burden
of proving first that her counsel violated an objective standard of reasonableness in deciding
against the filing of a motion to suppress. She must also demonstrate there is a reasonable
probability that the outcome of her trial would have been different had trial counsel made
such a motion.11 Abundantly clear from the existing record in this case is that the petitioner
can satisfy neither prong of this well-established test.

        The reasonableness of trial counsel’s contrary decision regarding a motion to suppress
is ineluctable. The filing of an unsupportable motion would have been frivolous. Moreover,
such a motion would have been contradicted by the petitioner’s own expert. The majority
has apparently overlooked the fact that the petitioner has failed to offer any grounds upon
which a reviewing court might conclude that her statements to the police were involuntarily
made. She seeks relief by asserting her age, maturity, and IQ–but these are the very factors
previously considered and rejected before trial by Dr. Lewis, her expert psychologist. Dr.
Lewis concluded that even when taking these factors into consideration, the petitioner gave
her statements to the police freely and knowingly. Significantly, the petitioner has not
proffered any affidavit or report to contradict Dr. Lewis’s opinion.

        In the final analysis, there is nothing to suggest that the outcome of the petitioner’s
trial would have been different had a motion to suppress been tendered on her behalf. In the
habeas final order, the circuit court found that even though the petitioner signed a Miranda
waiver form, she was not in custody when giving the statements and thus no Miranda rights
had attached. See, e.g., State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606 (2015) (reiterating
that procedural safeguards outlined in Miranda are not required unless person is subject to
custodial interrogation). The circuit court also found that the petitioner’s statements to the
police were consistent with the physical evidence offered at trial. Illustrative of this
dovetailing is the petitioner’s statement to the investigating officers that she threw a bottle


       11
         The test for evaluating ineffective assistance of counsel claims is set forth in State
v. Miller:

              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.

Miller, 194 W.Va. at 6, 459 S.E.2d at 117, syl. pt. 5.

                                              10

at her infant’s face and the undisputed evidence that the infant had a bruise under his eye.
The petitioner told the police she threw her son into his crib causing him to strike his head
on a hard toy piano, and the undisputed autopsy evidence revealed the infant suffered a skull
fracture. Add to all of this the testimony of the petitioner’s boyfriend that while they were
at the police station together, the petitioner admitted to him that she had injured the baby.

        Based on the foregoing, I can only conclude that the circuit court did not abuse its
discretion in deciding against the need for an evidentiary hearing given the existing record
in this case. Instead of reversing and remanding for a hearing, this Court should have simply
ruled on the appeal.

       Accordingly, I respectfully dissent. I am authorized to state that Justice Workman
joins me in this dissent.




                                             11

