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 Jason M. Stedman, appeals the Circuit Court of 

Berkeley County’s November 21, 2017, order denying her amended second petition for a writ of 

habeas corpus. Respondent J.D. Sallaz, Superintendent1, by counsel Robert L. Hogan, filed a 

response. On appeal, petitioner asserts that the circuit 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 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 January of 2004, petitioner and Jashua Frocke 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 overdosed. 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 formerly designated as “wardens” are now 

designated “superintendents.” See W.Va. Code § 15A-5-3. 

2

West Virginia Code § 61-2-1 provides, in relevant part, that “[m]urder . . . in the 

commission of . . . a felony offense of . . . delivering a controlled substance as defined in article 

four, chapter sixty-a of this code, is murder of the first degree.” 

Additionally, petitioner was indicted 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 VIRGINIA
2 

 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 petition. The circuit court denied petitioner’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 statute that, in pertinent part, states, 

Any person who knowingly and willfully delivers 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 substance alone or in combination with one or 

more other controlled substances, 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 filed 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 petition, she argued that West Virginia Code § 60A-4-416(a) should 

be applied retroactively and that she should be resentenced in accordance with that statute. 

Petitioner also asserted an ineffective assistance of habeas counsel claim.4

 The circuit court 

denied petitioner’s amended second petition by order 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 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). 

                                                             3

Following the denial of her petition in the circuit court, petitioner 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 “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.” Syl. Pt. 4, in part, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 

606 (1981). Because petitioner’s second petition alleged a favorable change in the law and 

ineffective assistance of habeas counsel, it was not barred by res judicata. See id.
3 

Petitioner raises two assignments of error on appeal. First, petitioner claims the circuit 

court erred in denying relief based upon a favorable change in the law. 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 retroactively, and she should 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 retroactively, petitioner cites law discussing the 

retroactive application of “new constitutional rules of criminal procedure” 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 analytical 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 determination is well settled: 

“The presumption is that a statute is intended to operate prospectively, and not retrospectively, 

unless it appears, by clear, strong and imperative words or by necessary implication, that the 

Legislature intended to give the statute retroactive 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 presumed to be prospective in its operation unless 

expressly made retrospective[.]”). West Virginia Code § 60A-4-416 neither necessarily implies 

retroactive application nor contains language evidencing an intent for retroactive application. 

Accordingly, we find no error in the circuit court’s denial of relief on this ground. 

Petitioner also assigns as error the circuit court’s denial of her ineffective assistance of 

habeas counsel claim. Petitioner claims the court erred because habeas counsel rendered 

deficient representation in failing to review the Losh list5

 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 ineffective 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). Rather, 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 determination 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 regarding 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 establish 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 initially waived a ground that she believes would have been meritorious. 

Therefore, petitioner failed to establish ineffective 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 have been different. 

Petitioner again fails to demonstrate that counsel’s representation was deficient. We first 

note that petitioner does not assert that habeas counsel declined to argue the applicability of 

felony murder; rather, she argues that counsel did 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 petitioner 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 relitigating this previously unsuccessful 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 decedent’s cause of death was not sufficiently 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 petitioner gave the decedent was the heroin that 

caused his death. 

Petitioner’s argument ignores the testimony at trial 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 the circuit court’s conclusion that a rational jury could find that 

petitioner gave the decedent the heroin 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 the circuit court’s November 21, 2017, order 

denying petitioner’s amended second petition 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 sitting by temporary assignment