FILED
September 27, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Marc Alan Kilmer,
Petitioner Below, Petitioner
vs.) No. 20-0309 (Berkeley County 2018-C-161)
Shelby Searls, Superintendent,
Huttonsville Correctional Center,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Marc Alan Kilmer, by counsel Matthew T. Yanni, appeals the March 3, 2020,
order of the Circuit Court of Berkeley County, denying his amended petition for a writ of habeas
corpus. Shelby Searls, Superintendent, Huttonsville Correctional Center, by counsel Patrick
Morrisey and Katherine M. Smith, filed a response in support of the circuit court’s order.
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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
Petitioner was arrested on the charge of domestic battery second offense stemming from a
brutal attack on his former intimate partner on November 4, 2013. As a result of this attack, the
victim had evidence of strangulation on her face and neck; numerous fractures, including three rib
fractures and four pelvic fractures; and a collapsed lung, among other injuries. Following his arrest,
petitioner was interviewed by Lt. Gary Harmison, during which he provided a statement (“first
statement”). Petitioner was arraigned on November 5, 2013, and he requested that he be provided
counsel to represent him as to that charge. He was released on bail at approximately 11:50 a.m. on
November 5, 2013.
Later that day, petitioner was served with an arrest warrant for a separate criminal offense:
sexual assault in the first degree on the same victim. Before he was arraigned on the sexual assault
in the first degree charge, and approximately six hours after posting bond on the domestic battery
second offense charge, he was interviewed related to the sexual assault in the first degree charge
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(“second statement”) beginning at 6:20 p.m. on November 5, 2013, an interview that lasted forty-
three minutes.
Prior to his second statement, petitioner was informed of his Miranda rights and indicated
that he understood those rights. Petitioner advised the arresting officers that he wanted to provide
a statement and signed a form signifying the waiver of his Miranda rights. Petitioner’s second
statement included a graphic description of sexual intercourse with the victim, during which the
victim advised petitioner that “her hip was hurting.” After he provided this second statement to
law enforcement, petitioner was brought before a magistrate and arraigned on the felony charge of
sexual assault in the first degree in Case No. 13-F-1686.
Petitioner was subsequently indicted on two felony counts of malicious assault, two
misdemeanor counts of domestic battery, two felony counts of burglary, and one felony count of
sexual assault in the first degree, stemming from the events of November 4, 2013. Following a
five-day jury trial in February of 2015, petitioner was found guilty on all counts except the burglary
charges. On April 9, 2015, the State filed a recidivist information, which prayed that petitioner be
sentenced to life in prison based upon a predicate felony conviction for unlawful assault and two
prior felony convictions for driving while his license was revoked for driving under the influence
(“DUI”). The circuit court sentenced him to life in the penitentiary as a result.
Petitioner filed a direct appeal after sentencing, and his recidivist life sentence was reversed
as a result of the direct appeal. State v. Kilmer, 240 W. Va. 185, 808 S.E.2d 867 (2017). Upon
remand, the circuit court entered an order correcting petitioner’s sentence. Accordingly, he was
sentenced as follows: not less than one nor more than five years for unlawful assault (count one);
time served for domestic battery (count two); not less than one nor more than five years for
unlawful assault (count four); time served for domestic battery (count five); and not less than ten
nor more than twenty-five years for sexual assault in the second degree (count six). 1 The circuit
court ordered that counts one and six be served consecutively, with all other counts to be served
concurrently, for an effective sentence of eleven to twenty-six years in the penitentiary, lifetime
registration as a sexual offender, and five years of supervised release.
Thereafter, on May 25, 2018, petitioner filed a petition for a writ of habeas corpus, and the
circuit court appointed habeas counsel. On October 30, 2018, habeas counsel filed an amended
petition for a writ of habeas corpus, along with a Losh list, 2 and requested an omnibus evidentiary
hearing. The circuit court declined to hold an omnibus hearing. Instead, it issued its final order
denying the amended petition for a writ of habeas corpus on March 3, 2020.
This appeal followed. On appeal, petitioner claims that the circuit court erred when it
denied his petition without holding an omnibus evidentiary hearing as to his ineffective assistance
of counsel claim.
“In reviewing challenges to the findings and conclusions of the circuit court
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Although petitioner was indicted on a count of sexual assault in the first degree, he was
found guilty of the lesser-included offense of sexual assault in the second degree.
2
See Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
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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). Further,
“[o]n an appeal to this Court the appellant bears the burden of showing that there
was error in the proceedings below resulting in the judgment of which he
complains, all presumptions being in favor of the correctness of the proceedings
and judgment in and of the trial court.” Syl. pt. 2, Perdue v. Coiner, 156 W. Va.
467, 194 S.E.2d 657 (1973).
Meadows v. Mutter, 243 W. Va. 211, __, 842 S.E.2d 764, 771-72 (2020).
Petitioner claims that the circuit court erred when it refused to conduct an evidentiary
hearing to review his ineffective assistance of counsel claim and to establish the facts surrounding
his second statement. Respondent maintains that the circuit court properly denied the petition
without a hearing, noting that omnibus evidentiary hearings are not a matter of right and are not
required in all circumstances.
As to petitioner’s claim of ineffective assistance of counsel, we have said that
the cases in which a defendant may prevail on the ground of ineffective assistance
of counsel are few and far between one another. This result is no accident, but
instead flows from deliberate policy decisions this Court and the United States
Supreme Court have made mandating that “[j]udicial scrutiny of counsel’s
performance must be highly deferential” and prohibiting “[i]ntensive scrutiny of
counsel and rigid requirements for acceptable assistance[.]” Strickland [v.
Washington], 466 U.S. [668,] 689–90, 104 S.Ct. [2052,] 2065–66, 80 L.Ed.2d
[674,] 694–95 [(1984)]. In other words, we always should presume strongly that
counsel’s performance was reasonable and adequate. A defendant seeking to rebut
this strong presumption of effectiveness bears a difficult burden because
constitutionally acceptable performance is not defined narrowly and encompasses
a “wide range.” The test of ineffectiveness has little or nothing to do with what the
best lawyers would have done. Nor is the test even what most good lawyers would
have done. We only ask whether a reasonable lawyer would have acted, under the
circumstances, as defense counsel acted in the case at issue. We are not interested
in grading lawyers’ performances; we are interested in whether the adversarial
process at the time, in fact, worked adequately.
State v. Miller, 194 W. Va. 3, 16, 459 S.E.2d 114, 127 (1995).
“In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-prong test established in Strickland . . . : (1) Counsel’s
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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.” Syllabus point 5, State v.
Miller[.]
Syl. Pt. 3, in part, State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 528
S.E.2d 207 (1999). In addition, as we have held,
[i]n reviewing [Strickland’s first prong,] counsel’s performance, courts
must apply an objective standard and determine whether, in light of all the
circumstances, the identified acts or omissions were outside the broad range of
professionally competent assistance while at the same time refraining from
engaging in hindsight or second-guessing of trial counsel’s strategic decisions.
Thus, a reviewing court asks whether a reasonable lawyer would have acted, under
the circumstances, as defense counsel acted in the case at issue.
Miller, 194 W. Va. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6. In reviewing the second or prejudice
prong, the Court looks at whether “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Vernatter, 207 W.
Va. at 13, 528 S.E.2d at 209, Syl. Pt. 3, in part (quoting Miller, 194 W. Va. at 6, 459 S.E.2d at 117,
Syl. Pt. 5, in part).
Although petitioner claims that his trial counsel was ineffective in failing to move to
suppress his “second statement” to law enforcement, the timing of this statement is critical.
Petitioner provided this statement to law enforcement officers after he was arraigned and appointed
counsel with respect to a domestic battery charge, but before he was arraigned and brought before
a magistrate on the later charge of sexual assault in the first degree. Accordingly, our jurisprudence
is clear that at the time that he provided the second statement, petitioner’s right to counsel under
both Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the
United States Constitution had not attached with respect to the criminal offense of sexual assault
in the first degree. See State v. Williams, 226 W. Va. 626, 704 S.E.2d 418 (2010); State v.
Blackburn, 233 W. Va. 362, 758 S.E.2d 566 (2014); and State v. Bouie, 235 W. Va. 709, 776
S.E.2d 606 (2015). Therefore, suppression was not an available remedy at law. Accordingly, trial
counsel’s declination to file a motion to suppress the statement was objectively reasonable and in
accordance with the law of this State. Thus, his claim of ineffective assistance of counsel, which
alleges that his trial counsel was ineffective for failing to move to suppress his second statement,
is without merit.
Moreover, it is well-established that omnibus evidentiary hearings are not a matter of right
in habeas corpus proceedings. See W. Va. Code § 53-4A-7(a). A hearing is only necessary if it
“appears to the court . . . that there is probable cause to believe that the petitioner may be entitled
to some relief and that the contention or contentions and grounds (in fact or law) advanced have
not been previously and finally adjudicated or waived.” Gibson v. Dale, 173 W. Va. 681, 688, 319
S.E.2d 806, 813 (1984). Further, we have held that a habeas court may summarily deny a petition
for a writ of habeas corpus without a hearing if the petition and supporting evidence show that
petitioner is not entitled to relief. See Perdue at Syl. Pt. 1. Based upon our review of the record,
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the circuit court did not err when it failed to grant petitioner a hearing on his amended habeas
corpus petition, as the petition and the supporting evidence show that petitioner is not entitled to
relief.
For the foregoing reasons, we affirm the circuit court’s decision in its March 3, 2020, order
denying the amended petition for habeas corpus relief.
Affirmed.
ISSUED: September 27, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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