1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Nicole L. Kees, Petitioner Below, Petitioner

vs.) No. 17-1111 (Berkeley County 16-C-625)

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



### MEMORANDUM DECISION

Petitioner Nicole L. Kees, by counsel Jas on M. Stedman, appeals the Circuit Court of Berkeley County’s November 21, 2017, order denyi ng her amended second petition for a writ of habeas corpus. Respondent J.D. Sallaz, Superintendent 1 , by counsel Robert L. Hogan, filed a response. On appeal, petitioner a sserts that the circu it 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In January of 2004, petitioner and Jashua Fr ocke 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 ove rdosed. 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 former ly designated as “wardens” are now designated “superintendents.” See W.Va. Code § 15A-5-3.

2 West Virginia Code § 61-2-1 provides, in re levant part, that “[m]urder . . . in the commission of . . . a felony offense of . . . deliver ing a controlled substan ce as defined in article four, chapter sixty-a of this code, is murder of the first degree.”

Additionally, petitioner was indi cted 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. 

### FILED

November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 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 peti tion. The circuit court denied pe titioner’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 stat ute that, in pertinent part, states,

Any person who knowingly and willfully deliv ers 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 substanc e alone or in combination with one or

more other controlled substa nces, 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 f iled 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 petiti on, she argued that West Virgin ia Code § 60A-4-416(a) should be applied retroactively and that she should be resentenced in accordance with that statute.

Petitioner also asserted an ineffectiv e assistance of habeas counsel claim. 4 The circuit court denied petitioner’s amended second petition by or der 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 findi ngs and conclusions of the circuit court in a habeas corpus action, we appl y a three-prong standard of review. We

review the final order and the ultimate disposition under an abuse of discretion standard; the underlyi ng factual findings under a cl early 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 peti tion in the circuit court, peti tioner 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 “ine ffective 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 a lleged a favorable change in the law and

ineffective assistance of habeas counse l, it was not barred by res judicata. See id.3 Petitioner raises two assignments of error on appeal. First, petitione r claims the circuit court erred in denying relief based upon a favorable change in the la w. 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 re troactively, and she shoul d 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 re troactively, petitioner cites law discussing the retroactive application of “new constitutional rules of criminal pr ocedure” 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 analyti cal 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 determ ination is well settled: “The presumption is that a statut e is intended to operate prospect ively, and not retrospectively, unless it appears, by clear, strong and imperativ e words or by necessary implication, that the Legislature intended to give the statute re troactive 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 presum ed to be prospective in its operation unless expressly made retrospective[.] ”). West Virginia Code § 60A-4 -416 neither necessarily implies retroactive application nor contai ns language evidencing an intent for retroactive application. Accordingly, we find no error in the circ uit court’s denial of relief on this ground.

Petitioner also assigns as error the circuit cour t’s denial of her ine ffective assistance of

habeas counsel claim. Petitioner claims the court erred because habeas counsel rendered deficient representation in failing to review the Losh list 5 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 ineffec tive 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). Ra ther, 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).4 We find no error in the circuit court’s determin ation 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 regardi ng 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 estab lish 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 initial ly waived a ground that she believe s would have been meritorious. Therefore, petitioner failed to establish ineff ective 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 ha ve been different.

Petitioner again fails to demonstrate that couns el’s representation was deficient. We first note that petitioner does not assert that habeas counsel declin ed to argue the applicability of felony murder; rather, she argues that counsel di d 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 petit ioner 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 relitig ating this previously unsuccessf ul 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 deceden t’s cause of death was not suffici ently 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 pe titioner gave the decedent was the heroin that

caused his death.

Petitioner’s argument ignores the testimony at tr ial 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 th e circuit court’s conclu sion that a rational jury could find that petitioner gave the decedent the he roin 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 th e circuit court’s November 21, 2017, order denying petitioner’s amended second pe tition 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.5 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 sit ting by temporary assignment