STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Fred L. Buck, 

### FILED Petitioner Below, Petitioner February 11, 2013
RORY L. PERRY II, CLERK vs.) No. 11-1524 (Mason County 01-C-342) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Patrick Mirandy, Warden, St. Mary’s Correctional Center Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner, Fred L. Buck, by counsel, D. Adrian Hoosier, II, appeals from the “Order Denying Petition for Writ of Habeas Corpus” entered by the Circuit Court of Mason County on June 19, 2008. Respondent, Patrick Mirandy 1 , Warden of St. Mary’s Correctional Center, appears by counsel, Thomas W. Rodd.

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 is appropriate under Rule 21 of the Revised Rules of Appellate

Procedure.

The Grand Jury of Mason County indicted petitioner on thirty-one counts of first degree sexual assault, thirty-one counts of first degree sexual abuse, and two counts of third degree sexual assault. Petitioner pled guilty to ten counts of first degree sexual assault, eleven counts of first degree sexual abuse, and one count of third degree sexual assault. As part of the plea agreement, the remaining forty-two counts were dismissed. On December 27, 2000, petitioner was sentenced to confinement in a penitentiary for an indeterminate sentence of not less than eighteen years nor more than fifty years. Petitioner filed a direct appeal, which was refused by this Court without a hearing.

On November 16, 2001, petitioner filed a Petition for Writ of Habeas Corpus Ad Subjiciendum, arguing ineffective assistance of counsel. On March 15, 2006, new counsel filed an amended Losh List asserting thirty-two grounds for relief. On April 3, 2006, petitioner filed an amended habeas petition. Following a hearing, the circuit court denied petitioner’s petition for writ of habeas corpus relief by order entered on June 19, 2008. The circuit court’s order addressed each of petitioner’s grounds for relief set forth in his memorandum of law. Petitioner now appeals.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the

1 Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced the respondent’s name with Patrick Mirandy, Warden. The petitioner is no longer incarcerated at Mt. Olive.

1following standard:

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).

As his first assignment of error, petitioner asserts that the trial court should have held an evidentiary hearing because the circuit court’s final order only addressed one of his asserted grounds, ineffective assistance of counsel. Petitioner also asserts that the circuit court did not set forth factual findings and conclusions of law on the remaining thirty-one grounds for habeas corpus relief.

The respondent argues that the circuit court held an evidentiary hearing and addressed all issues argued in the circuit court. The State points out that the circuit court’s final order states that the court conducted an omnibus hearing on evidentiary matters and references evidentiary deposition testimony by the petitioner and his counsel throughout the order. This Court finds that the orders show that the requested hearings were held in this matter. Therefore, we find no merit in this assignment of error.

Petitioner next argues that habeas counsel did not provide him with effective assistance in the instant habeas corpus proceeding. Petitioner is raising counsel’s alleged ineffective assistance for the first time on appeal. If petitioner continues to believe prior counsel was ineffective, the preferred way of raising ineffective assistance of habeas counsel is to file a subsequent petition for a writ of habeas corpus raising this issue in the court below. See Syl. Pt. 4, Losh v. McKenzie

, 166 W.Va. 762, 277 S.E.2d 606 (1981) (While a prior habeas corpus hearing is res judicata as to all matters either raised or should have been raised at the habeas corpus hearing, “an applicant may still petition the court on the following grounds: ineffective assistance of counsel at the omnibus habeas corpus hearing; . . . .”). Because the circuit court had no opportunity to decide the issue of counsel’s alleged ineffective assistance, this Court will not address the issue on appeal.

After careful considerations of the parties’ arguments this Court concludes that the circuit court did not abuse its discretion in denying the petition for a writ of habeas corpus. Having reviewed the circuit court’s “Order Denying Petition for Writ of Habeas Corpus” entered on June 19, 2008, 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 the denial of petitioner’s petition for writ of habeas corpus is affirmed.

2Affirmed.

ISSUED: February 11, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II

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