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 Mirandy1

, 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. 

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following 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. 

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Affirmed. 

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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