### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Danielle Hilling, 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 Tere sa 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 fi nding 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 appe al. 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 May of 2006, petitioner was indicted fo r one count of first-degree murder and one count of conspiracy. At trial, petitioner was c onvicted of both counts. Ultimately, petitioner was sentenced to life without the possibi lity of parole for first degree murder and one to five years of incarceration for conspiracy, said sentences to be served concu rrently. Petitioner appealed her conviction. The Court refused the app eal by order entered in May of 2008.

In June of 2009, petitioner, by previous counsel , filed a petition for wr it of habeas corpus. The circuit court summarily denied those clai ms without an omnibus evidentiary hearing.

1 Petitioner originally listed Lori Nohe as res pondent to this action. However, J.D. Sallaz is now the acting warden at the faci lity in question. A ccordingly, the proper public officer has been substituted pursuant to Rule 41(c) of the Rules of Appellate Procedure.

1Petitioner 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 fo r writ of habeas corpus in the Circuit Court of Monongalia County assert ing ineffective assistance of trial counsel. Counsel was appointed for petitioner who filed an amended petition and a su pporting memorandum of law. Respondent filed an answer. In a thirteen-page order entered on Ma rch 28, 2017, the circuit court denied the petition without holding an omnibus hearing. The circuit c ourt found that “[p]etiti oner 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 resu lt of her trial and sentencing would have been diffe rent.” 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” a nd that “petitioner ha s 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 conclusi ons of the circuit court in a habeas corpus action, we apply a thre e-prong standard of review. We review the final order and the ultimate dispositi on under an abuse of discretion standard; the underlying factual findings under a clearly erroneous st andard; and qu estions 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 th at 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 peti tions that are procedurally barred or meritless. We agree with respondent and find no error in th e circuit court’s denial of petitioner’s habeas petition.

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

[i]f the petition, affidavits, exhibi ts, 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 w ithout a hearing and without appointing

2counsel for the petitioner if the petition, exhibits, affidavits or other documentary

evidence filed therewith show to such c ourt’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 car efully reviewed and analyzed petitioner’s memorandum of law in su pport 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 crim inal trial. Petitioner do es 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 deny ing the amended petition for habeas corpus.

Further, petitioner argues that summary dism issal 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 hear ing. However, West Virginia Code § 53-4A-2 clearly provides that “[a]ffidavits , exhibits, records or other do cumentary 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 he r 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 ot her 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 evid entiary hearing was not required.” The circuit court properly found that petitioner did not identify a ny information that would be presented at an omnibus hearing and that enough evidence was pres ented for the circuit court to rule on the petition. Therefore, we find that the circuit court di d not abuse is discre tion by not holding an omnibus hearing or requesti ng 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 opportun ity 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

3parties” (emphasis added). The rule does not requir e 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 statut ory construction is that the word ‘may’ is inherently permissive in nature and connotes disc retion.”). The petitioner should not have relied on the circuit court to request an e xpansion of the record. Accordingly, we find that the circuit court did not err in dismissing the amended peti tion of habeas corpus on its own motion.

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

received ineffective assistance of counsel. Specifically, petitione r claims that her attorney’s representation was deficient for three distinct reas ons: (1) counsel failed to strike a juror who was potentially a close friend of a friend of the vi ctim; (2) counsel did not file a written motion requesting bifurcation of the gui lt 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 ci rcuit court’s order includes well -reasoned findings and conclusions as to the assignment of error concerning ineffec tive assistance of counsel now raised on appeal,

and we find no error or abuse of discretion in th e 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 assignmen ts of error raised on appeal and direct the Clerk to attach a copy of the circuit court’s March 28, 2017, “Order Dismissing Pe titioner’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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