Nicole L. Kees v. J.D. Sallaz, Superintendent

Summary

The Supreme Court of Appeals of West Virginia affirmed the denial of Nicole L. Kees's amended second petition for a writ of habeas corpus. The court held that West Virginia Code § 60A-4-416(a), enacted after Kees's conviction, did not apply retroactively and that her ineffective-assistance-of-habeas-counsel claims failed under the Miller/Strickland standard.

Holdings

1. West Virginia Code § 60A-4-416(a) does not apply retroactively because it contains neither clear language nor a necessary implication that the Legislature intended retroactive application.
2. Kees failed to establish ineffective assistance of habeas counsel because she did not show deficient performance and resulting prejudice under the Miller/Strickland test.

Questions Presented

1. Whether West Virginia Code § 60A-4-416(a), enacted after Kees's conviction, applied retroactively so that she could be resentenced under its determinate sentencing range.
2. Whether habeas counsel was constitutionally ineffective for failing to review the Losh list, inadequately arguing the applicability of felony murder, and failing to challenge the proof of the decedent's cause of death.

Disposition

affirmed