MEMORANDUM DECISION
Petitioner Nicole Kees, by counsel Christopher J. Prezioso, appeals the September 21, 2011 order of the Circuit Court of Berkeley County denying her petition for a writ of habeas corpus. Respondent Lori Nohe, by counsel Christopher J. Quasebarth, has filed a response, to which petitioner has replied.
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 is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.
On January 7, 2005, petitioner was sentenced to a term of incarceration of life, with mercy, following her conviction by jury of felony murder. Petitioner was also sentenced to two terms of incarceration of one to ten years in prison following her guilty plea to two counts of felony forgery, said sentences to run consecutively to each other but concurrently to her life sentence. Petitioner appealed her conviction for felony murder, but this Court refused her petition for appeal by order entered on April 24, 2008. On July 7, 2010, petitioner, by counsel, filed an amended petition for writ of habeas corpus in the circuit court. By order entered on September 21, 2011, this petition was denied absent an omnibus evidentiary hearing.
On appeal, petitioner alleges that the circuit court erred in denying her petition without holding an evidentiary hearing. While petitioner lists eight distinct assignments of error, her argument is best characterized as alleging error on the part of the circuit court for failing to hold an evidentiary hearing because probable cause existed to believe she was entitled to certain relief. Each of petitioner's assignments of error, aside from the first, re-alleges each of her grounds for relief as set forth in the habeas petition filed below. Respondent argues that the circuit court did not err in denying the petition and that West Virginia law allows for summary dismissal of habeas petitions. According to respondent, the circuit court properly and thoroughly analyzed each of petitioner's habeas claims and properly concluded that they lacked merit. Because such claims could be decided by reference to the record, respondent argues that no evidentiary hearing was necessary.
This Court has previously held that
[i]n 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). Further, we have also held that
"[a] court having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus without a hearing . . . 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." Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).
Syl. Pt. 2, in part, State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 (1997). After careful consideration of the parties' arguments, this Court concludes that the circuit court did not abuse its discretion in denying the petition for writ of habeas corpus. Having reviewed the circuit court's "Order Denying Amended Petition For Writ Of Habeas Corpus" entered on September 21, 2011, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.
For the foregoing reasons, we find no error in the decision of the circuit court and its September 21, 2011 order denying the petition for writ of habeas corpus is affirmed.
Affirmed.
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS This matter came before the Court this 21 day of September 2011, pursuant to Petitioner's Amended Petition for "Writ of Habeas Corpus (hereinafter "Petition"). Upon the appearance of Petitioner, Nicole Kees, by counsel Christopher J. Prezioso, and Respondent, Lori Nohe, by counsel Christopher C. Quasebarth, Chief Deputy Prosecuting Attorney for Berkley County, W.Va.; and upon the consideration of the Petition, the Answer and Motion to Dismiss, the parties' respective memoranda of law, and pertinent legal authorities, the Court Rules as follows.
1. The criminal case upon which this habeas was brought is styled State of West Virginia v. Nicole Kees, Berkeley County Circuit Court Case No. 04-F-102.
2. On May 20, 2004 Petitioner, Nicole Kees, was indicted by the State of West Virginia in Berkeley County for six (6) felony counts. Count I of the Indictment charged Petitioner with the offense of felony murder in violation of W. Va. Code § 61-2-1; Count II of theCounty Sheriff's Department and Corporal Richard T. Dyroff, of the West Virginia State Police. After hearing the evidence on the issue, the parties agreed and the Court found that the evidence showed Petitioner made the statements to the police with a knowing, intelligent waiver of rights after having been informed of them.
6. On September 29, 2004 a Jury Trial was held on Counts I and II of the indictment; where at the close of the State's case Count II of the Indictment was dismissed, and at the end of all evidence and argument the Jury found the Petitioner Guilty of felony murder and recommended mercy.
7. On January 7, 2005, Petitioner pled guilty to two indicted counts of felony Forgery, and one misdemeanor Destruction of Property. At this hearing the post-trial motion for a new trial was heard and denied, and sentence was imposed. Petitioner was sentenced to the term of her natural life with the possibility of parole after fifteen (15) years on the felony murder conviction by jury trial, and two terms of not less than one (1) nor more than then (10) years on the two Forgery convictions by plea to run consecutive to each other but concurrent with the term of natural life, and a fine of one hundred dollars ($100) on the Destruction of Property conviction by plea, and restitution was ordered.
8. On May 11, 2007, the Court entered an Order re-sentencing the Petitioner for the purpose of allowing an appeal, after good cause was shown for the same.
9. On November 21, 2007, Petitioner filed a Petition for Appeal. The Petition for Appeal challenged only the felony murder conviction, and it contained four (4) assignments of error. The first regarded the failure of the Court to direct a verdict in favor of Petitioner at the close of evidence; the second regarded the Court's denial of the Petitioner's profferedlesser included offense instruction; the third regarded the Prosecutor's misstatement of the law in closing; and the fourth regarded the cumulative weight of the previous three.
10. On April 24, 2008, the Petition for Appeal was refused by the West Virginia Supreme Court of Appeals.
11. On August 12, 2008, Petitioner filed a Petition for Habeas Corpus, Pro Se.
12. On August 25, 2008, the Court entered an Order appointing counsel and directing counsel to file an amended petition, and Ordering Petitioner to complete a Losh List.
13. On July 7, 2010, after an extension of the deadline, Petitioner filed the instant Amended Petition for Writ of Habeas Corpus (hereinafter Petition) and Losh List. The Petition claims ineffective assistance of counsel in eight ways, a due process violation in the Court's failure to suppress statements of Petitioner, an cruel and unusual sentence, a due process violation in the State's witnesses giving false testimony, a due process violation in that there was insufficient evidence to convict, a due process violation in Petitioner's lack of competency to stand trial, the unconstitutionality of W.Va. Code § 61-2-1, and a list of remaining grounds." The Losh List specifically waives the following grounds for relief: trial court lacked jurisdiction, denial of right to a speedy trial, involuntary guilty plea, language barrier to understanding the proceedings, denial of counsel, unintelligent waiver of counsel, double jeopardy, no preliminary hearing, illegal detention prior to arraignment, irregularities or errors in arraignment, failure to provide copy of indictment to defendant, improper venue, pre-indictment delay, refusal of continuance, prejudicial joinder of defendants, lack of full public hearing, claims of prejudicial statements by trial judges, acquittal of co-defendant on same charge, defendant's absence from part of the proceedings, question of actual guilt upon an acceptable guilty plea.
14. On July 26, 2010, the Court Ordered the Respondent to fully and completely respond to the Petition.
15. On October 25, 2010, Respondent filed Respondent's Return to, and Motion to Dismiss, Petition for Habeas Corpus.
This matter comes before the Court upon Petitioner's Petition for Writ of Habeas Corpus. This Court has previously appointed counsel, who filed an amended petition, and subsequent to an initial review the Court has ordered the respondent to file an...
