STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED Angela Dawn Miller, April 13, 2015 Petitioner Below, Petitioner 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 14-0482 (Wyoming County 04-C-320) OF WEST VIRGINIA 

Lori H. Nohe, Warden,
 

Lakin Correctional Center,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Angela Dawn Miller, by counsel Mark Hobbs, appeals the Circuit Court of 

Wyoming County’s April 8, 2014, order denying her motion for relief from judgment made 

pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure.1 Respondent Lori H. 

Nohe, Warden, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the 

circuit court erred in denying her Rule 60(b) motion because due process required she be granted 

an omnibus evidentiary hearing. 

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 August of 1994, petitioner was convicted of first degree murder. She was later 

sentenced to a term of incarceration of life without the possibility of parole. Petitioner thereafter 

filed a direct appeal and this Court affirmed her conviction. See State v. Miller, 197 W.Va. 588, 

476 S.E.2d 535 (1996). Following this appeal, petitioner filed a petition for writ of habeas corpus 

in the circuit court. Petitioner was represented by counsel during this habeas proceeding, and the 

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In her notice of appeal, petitioner indicated that she was appealing both the April 8, 

2014, order denying her Rule 60(b) motion and the circuit court’s January 22, 2014, order 

denying her amended petition for writ of habeas corpus. However, because appeal of the latter 

order was untimely, this Court directed petitioner’s counsel to file a supplement explaining why 

the notice of appeal in regard to the earlier order should be deemed timely. After counsel filed 

the required supplement, this Court refused to consider an appeal of the circuit court’s January 

22, 2014, order as set forth by order entered on February 26, 2015. As such, this appeal addresses 

only the circuit court’s April 8, 2014, order denying petitioner’s Rule 60(b) motion. 

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circuit court held an omnibus evidentiary hearing before ultimately denying her petition. In 

November of 2003, petitioner appealed the denial to this Court, which refused the same. 

Following this Court’s refusal of petitioner’s habeas appeal, petitioner filed a second 

petition for writ of habeas corpus in the circuit court in December of 2004. This petition was 

denied by order entered on March 18, 2005.2 Thereafter, in February of 2010, the circuit court 

appointed counsel to represent petitioner in the circuit court habeas proceeding, despite having 

previously denied her petition.3 Counsel later moved for an extension of time to file an amended 

petition. The circuit court granted said motion and directed that counsel file an amended petition 

by March 1, 2012. On September 27, 2013, counsel filed the amended petition. On January 21, 

2014, the circuit court summarily denied the amended petition.4 On February 21, 2014, petitioner 

filed a motion to set aside or grant relief from the judgment pursuant to Rule 60(b) of the West 

Virginia Rules of Civil Procedure. That motion was denied by order entered on April 8, 2014. It 

is from the order denying her Rule 60(b) motion that petitioner appeals. 

This Court reviews appeals of circuit court orders denying motions for relief from 

judgment under the following standard: 

“A motion to vacate a judgment made pursuant to Rule 60(b), W.Va. 

R.C.P., is addressed to the sound discretion of the court and the court’s ruling on 

such motion will not be disturbed on appeal unless there is a showing of an abuse 

of such discretion.” Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 

(1974). 

Syl. Pt. 1, Fernandez v. Fernandez, 218 W.Va. 340, 624 S.E.2d 777 (2005). Upon our review, 

the Court finds no error in the circuit court denying petitioner’s Rule 60(b) motion. 

In its January 22, 2014, order denying petitioner’s amended petition for writ of habeas 

corpus, the circuit court relied, in part, upon petitioner’s failure to provide any factual support to 

justify the issuance of a writ of habeas corpus. Subsequently, in her motion for relief from that 

judgment, petitioner argued that the amended petition lacked specific reference to the trial 

transcript because counsel misplaced the trial transcripts and that, upon locating them, specific 

reference could be made in a second amended petition for writ of habeas corpus. The circuit 

court, however, correctly ruled that petitioner “offers no explanation for how trial transcript 

references would alter the [circuit c]ourt’s findings in its Order Denying Amended Petition.” 

This is true in light of the circuit court’s ultimate denial of the petition upon a finding that her 

prior direct criminal appeal and full habeas proceeding barred her current claims under the 

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At the time this order was entered, Senior Status Judge John S. Hrko presided. 

3

The record is unclear as to why counsel was appointed. Petitioner did not include the 

order appointing her counsel in the appendix to the current appeal. However, at the time this 

order was entered, Judge Warren R. McGraw presided. 

4

At the time this order was entered, Judge Charles M. Vickers presided. 

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doctrine of res judicata. The Court agrees with this conclusion, as the circuit court clearly 

established that petitioner’s prior direct criminal appeal and circuit court habeas corpus 

proceeding barred further prosecution of these claims under the doctrine of res judicata and, as 

such, did not err in denying her Rule 60(b) motion because she failed to establish how additional 

citation to the record would alter this determination. 

While petitioner argues that the circuit court’s prior order granting an extension of time to 

file an amended petition for writ of habeas corpus “kept [the] civil action open for subsequent 

[a]mended [p]etitions although the deadline of March 1, 2012, had expired,” and that due process 

required an omnibus hearing, the Court finds no merit in this argument. The fact that the circuit 

court permitted the filing of an amended petition did not entitle petitioner to a full omnibus 

evidentiary hearing, as it was free to summarily refuse the petition. Pursuant to West Virginia 

Code § 53-4A-3(a), 

[i]f the petition, affidavits, exhibits, records and other documentary evidence 

attached thereto, 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 contention or contentions and grounds (in fact or law) advanced 

have been previously and finally adjudicated or waived, the court shall by order 

entered of record refuse to grant a writ, and such refusal shall constitute a final 

judgment. 

Further, we have previously held 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; 

newly discovered evidence; or, a change in the law, favorable to the applicant, 

which may be applied retroactively.” Syllabus Point 4, Losh v. McKenzie, 166 

W.Va. 762, 277 S.E.2d 606 (1981). 

Syl. Pt. 2, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). As fully set forth in the 

circuit court’s January 22, 2014, order denying the amended petition, all the grounds raised 

therein were barred by res judicata. For this reason, it is clear that the circuit court did not abuse 

its discretion in denying petitioner’s Rule 60(b) motion, as specific citation to the trial record 

would not entitle petitioner to relief. 

For the foregoing reasons, the circuit court’s April 8, 2014, order denying petitioner’s 

motion for relief from judgment made pursuant to Rule 60(b) of the West Virginia Rules of Civil 

Procedure is affirmed. 

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Affirmed. 

ISSUED: April 13, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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