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