STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Danielle Hilling, FILED

Petitioner Below, Petitioner April 9, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS vs.) No. 17-0403 (Monongalia County 14-C-589) OF WEST VIRGINIA 

J.D. Sallaz, Acting Warden, 

Lakin Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Danielle Hilling, by counsel Teresa J. Lyons, appeals the March 28, 2017, order 

of the Circuit Court of Monongalia County denying her petition for post-conviction habeas corpus 

relief. Respondent J.D. Sallaz, Acting Warden, Lakin Correctional Center, by counsel, Sarah B. 

Massey, filed a response in support of the circuit court’s order.1 Petitioner filed a reply. On appeal, 

petitioner argues that the circuit court erred in finding that an omnibus hearing was unnecessary, in 

denying petitioner’s motion to expand the record, and in denying habeas relief. 

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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In May of 2006, petitioner was indicted for one count of first-degree murder and one 

count of conspiracy. At trial, petitioner was convicted of both counts. Ultimately, petitioner was 

sentenced to life without the possibility of parole for first degree murder and one to five years of 

incarceration for conspiracy, said sentences to be served concurrently. Petitioner appealed her 

conviction. The Court refused the appeal by order entered in May of 2008. 

In June of 2009, petitioner, by previous counsel, filed a petition for writ of habeas corpus. 

The circuit court summarily denied those claims without an omnibus evidentiary hearing. 

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Petitioner originally listed Lori Nohe as respondent to this action. However, J.D. Sallaz is 

now the acting warden at the facility in question. Accordingly, the proper public officer has been 

substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure. 

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Petitioner appealed the denial, and this Court affirmed the circuit court order. Hilling v. Nohe, No. 

12-0131, 2013 WL 3185089 (W.Va. June 24, 2013)(memorandum decision). 

Thereafter, petitioner filed a second petition for writ of habeas corpus in the Circuit Court 

of Monongalia County asserting ineffective assistance of trial counsel. Counsel was appointed for 

petitioner who filed an amended petition and a supporting memorandum of law. Respondent filed 

an answer. In a thirteen-page order entered on March 28, 2017, the circuit court denied the petition 

without holding an omnibus hearing. The circuit court found that “[p]etitioner has not shown that 

trial counsel’s performance was so deficient under an objective standard of reasonableness that she 

was denied the effective assistance of counsel.” Further, the circuit court found that “[p]etitioner 

has not shown that but for trial counsel’s actions and/or omissions, the result of her trial and 

sentencing would have been different.” In regard to an omnibus hearing, the court found that 

petitioner “has not disclosed an expert opinion or indicated that any expert or other testimony 

would be taken at a hearing” and that “petitioner has not identified any evidence she wishes to 

introduce in support of her [p]etition.” Petitioner now appeals that order. 

We apply the following standard of review in habeas appeals: 

“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). 

On appeal, petitioner argues that the circuit court abused its discretion by dismissing her 

amended petition without affording her an omnibus hearing or another opportunity to expand the 

record. Respondent argues that petitioner had no entitlement to expand the record and that the 

circuit court may deny habeas petitions that are procedurally barred or meritless. We agree with 

respondent and find no error in the circuit court’s denial of petitioner’s habeas petition. 

West Virginia Code § 53-4A-7(a) provides 

[i]f 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 . . . show to the 

satisfaction of the court that the petition is entitled to no relief . . . the court shall 

enter an order denying the relief sought. 

Additionally, we have previously held as follows: 

‘A court having jurisdiction over habeas corpus proceedings may deny a 

petition for a writ of habeas corpus without a hearing and without appointing 

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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. Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 

657 (1973).’ Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004). 

Anstey, 237 W.Va. at 412, 787 S.E.2d at 866, Syl. Pt. 3. The circuit court carefully reviewed and 

analyzed petitioner’s memorandum of law in support of her amended petition, which provided a 

detailed presentation of her argument and included relevant transcripts as exhibits for the circuit 

court’s consideration. Additionally, the judge presiding over the underlying habeas proceeding 

had been the trial court judge in petitioner’s criminal trial. Petitioner does not dispute that the 

circuit court correctly applied the law regarding the ineffective assistance of counsel claims. Based 

on its analysis, the circuit court concluded that petitioner was not entitled to the requested habeas 

relief. Therefore, we find no abuse of discretion in the circuit court denying the amended petition 

for habeas corpus. 

Further, petitioner argues that summary dismissal was erroneous because she would have 

introduced additional exhibits, such as affidavits, to support her claims for ineffective assistance of 

counsel, if she had been given an omnibus hearing. However, West Virginia Code § 53-4A-2 

clearly provides that “[a]ffidavits, exhibits, records or other documentary evidence supporting the 

allegations of the petition shall be attached to the petition unless there is a recital therein as to why 

they are not attached.” At no point in either her petition or the memorandum of law does petitioner 

assert that there was further information to support her petition that would only be available at an 

omnibus hearing; petitioner mentioned no other documents or evidence that would be 

forthcoming. In short, the record shows that petitioner’s filings before the circuit court appear to 

contain all of the information relevant to her petition. Rule 9(a) of the West Virginia Rules 

Governing Post-Conviction Habeas Corpus Proceedings provides that “[i]f 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.” The circuit court 

properly found that petitioner did not identify any information that would be presented at an 

omnibus hearing and that enough evidence was presented for the circuit court to rule on the 

petition. Therefore, we find that the circuit court did not abuse is discretion by not holding an 

omnibus hearing or requesting expansion of the record. 

Petitioner further alleges that the circuit court erred in dismissing the petition when the 

respondent did not move for dismissal pursuant to Rule 12(b)(6) or Rule 56 of the West Virginia 

Rules of Civil Procedure. Petitioner asserts that both rules permit a petitioner to file a response to 

avoid dismissal and that she was denied an opportunity to respond. We disagree. As set forth above 

in West Virginia Code § 53-4A-7(a), it is in the circuit court’s discretion to enter an order denying 

relief if the circuit court is satisfied by the evidence presented. If the circuit court finds that a 

petitioner is not entitled to relief, there is no requirement to request additional information that 

might save the petition from dismissal. 

Expansion of the record in habeas proceedings is governed by Rule 8(a) of the West 

Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings which provides that “[i]f 

the petition is not summarily dismissed, the court may direct that the record be expanded by the 

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parties” (emphasis added). The rule does not require that the circuit court give an opportunity to 

expand the record; it is discretionary. See Rosen v. Rosen, 222 W.Va. 402, 409, 664 S.E.2d 743, 

750 (2008) (“[a]n elementary principle of statutory construction is that the word ‘may’ is 

inherently permissive in nature and connotes discretion.”). The petitioner should not have relied on 

the circuit court to request an expansion of the record. Accordingly, we find that the circuit court 

did not err in dismissing the amended petition of habeas corpus on its own motion. 

Finally, petitioner argues that the circuit court erred in denying her petition because she 

received ineffective assistance of counsel. Specifically, petitioner claims that her attorney’s 

representation was deficient for three distinct reasons: (1) counsel failed to strike a juror who was 

potentially a close friend of a friend of the victim; (2) counsel did not file a written motion 

requesting bifurcation of the guilt and mercy phases of petitioner’s murder trial; and (3) counsel 

failed to seek severance of petitioner’s trial from that of her co-defendant. 

The circuit court thoroughly addressed each of these three claims in its order denying 

petitioner habeas relief. The circuit court’s order includes well-reasoned findings and conclusions 

as to the assignment of error concerning ineffective assistance of counsel now raised on appeal, 

and we find no error or abuse of discretion in the circuit court’s denial of petitioner’s amended 

petition. Because we find no error, we hereby adopt and incorporate the circuit court’s findings and 

conclusions as they relate to petitioner’s assignments of error raised on appeal and direct the Clerk 

to attach a copy of the circuit court’s March 28, 2017, “Order Dismissing Petitioner’s Petition for 

Writ of Habeas Corpus” to this memorandum decision. 

For the foregoing reasons, we affirm the circuit court’s March 28, 2017, order denying 

petitioner’s instant petition for writ of habeas corpus. 

Affirmed. 

ISSUED: April 9, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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