                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Edgar W. Friedrichs, Jr.,                                                            FILED
Petitioner Below, Petitioner                                                      June 12, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0815 (Fayette County 14-C-95)
                                                                                  OF WEST VIRGINIA


David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Edgar W. Friedrichs Jr., pro se, appeals the order of the Circuit Court of
Fayette County, entered on July 7, 2014, denying his second petition for a writ of habeas corpus.
Respondent David Ballard, Warden, Mount Olive Correctional Complex, by counsel Laura
Young, filed a response.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In January of 2002, petitioner was convicted by a jury of one count of first degree sexual
abuse and three counts of sexual abuse by a custodian. The circuit court sentenced petitioner to
one to five years in prison for first degree sexual abuse and ten to twenty years for each of the
sexual abuse by a custodian convictions. The circuit court ordered that the sentences be served
consecutively. Petitioner filed a direct appeal to this Court, which was refused in June of 2003.

         Petitioner filed his first habeas petition in 2010, alleging twenty-three grounds for relief.1
By order entered in August of 2010, the circuit court denied the petition, but ruled on only the
first thirteen grounds for relief, leaving ten grounds unaddressed. The circuit court appointed
attorney Jeffrey T. Mauzy as appellate counsel for petitioner.2 In March of 2011, Attorney
Mauzy, on petitioner’s behalf, filed an appeal of the denial of his first habeas petition with this
Court. In late 2011, while petitioner’s appeal was pending, Attorney Mauzy accepted a position
as an assistant prosecuting attorney in the Fayette County Prosecuting Attorney’s Office. In July


       1
           The first habeas petition was docketed as Civil Action No. 10-C-93-H.
       2
           At the time, Attorney Mauzy was engaged in private practice.
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of 2011, the court entered an order approving Attorney Mauzy’s appointed counsel fees and
expense, signifying the end of his representation of petitioner.

        By memorandum decision issued on June 22, 2012,3 this Court affirmed the denial of
petitioner’s first habeas petition with respect to the first thirteen grounds for relief and remanded
the matter to the circuit court to rule upon petitioner’s remaining ten grounds for habeas relief.
Upon remand, the circuit court denied the remaining ten grounds in the first petition by order
entered on December 12, 2012.

        The circuit court then appointed attorney Thomas Rist as appellate counsel for petitioner.
Mr. Rist, on petitioner’s behalf, appealed the circuit court’s December 12, 2012, order to this
Court. By memorandum decision issued on November 8, 2013,4 this Court affirmed the circuit
court’s denial of petitioner’s habeas petition with respect to all of petitioner’s remaining habeas
claims. The November 8, 2013, memorandum decision addressed in detail Attorney Mauzy’s
representation of petitioner, including his acceptance of the assistant prosecuting attorney
position subsequent to filing petitioner’s appeal in March of 2011 and the efforts of the
Prosecuting Attorney’s Office to ensure that Attorney Mauzy be “walled” off from any
discussions related to petitioner’s case.

        In petitioner’s current habeas petition – his second – his sole ground for relief is that
Attorney Mauzy “was ineffective in a number of ways and even took a job in the prosecutor’s
office, when replaced by Attorney Rist, the Court had already refused reliefs [sic],” and that Mr.
Mauzy “failed to file anything on remand[.]” As respondent correctly states, Attorney Mauzy’s
representation of petitioner ended before this Court issued its first memorandum decision
remanding the matter to the circuit court to rule upon on the ten remaining unaddressed claims.

        By order entered on July 7, 2014, the circuit court denied petitioner’s current habeas
petition.5 The circuit court concluded that Attorney Mauzy was appointed solely as petitioner’s
appellate counsel and that his representation of petitioner ended with his filing of the appeal with
this Court in March of 2011. The circuit court further concluded that petitioner was not entitled
to relief because, in the first memorandum decision, this Court affirmed the circuit court’s
decision to not appoint petitioner habeas counsel for the purpose of filing an amended petition or
for additional hearing; this Court directed only that the circuit court rule upon the unaddressed
ten claims in the petition that had already been filed. Accordingly, the circuit court concluded
that petitioner’s second habeas petition “clearly fails to raise any discernible grounds for relief
concerning Mr. Mauzy’s representation of [p]etitioner which have not already been previously



       3
         Friedrichs v. Ballard, No. 11-0564, 2012 WL 3055451 (W.Va. Supreme Court, June
22, 2012) (memorandum decision).
       4
        Friedrichs v. Ballard, No. 13-0031, 2013 WL 5967036 (W.Va. Supreme Court, Nov. 8,
2013) (memorandum decision).
       5
        The court also denied petitioner’s motions for appointment of counsel and to proceed in
forma pauperis.
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and fully adjudicated, both in [the circuit court] and in [this Court].” Petitioner now appeals to
this Court.

               “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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner challenges the summary dismissal of his habeas petition without a
hearing or the appointment of counsel.6 West Virginia Code § 53-4A-7(a) provides, in part, that
where a petition for writ of habeas corpus and the record “show to the satisfaction of the court
that the petitioner is entitled to no relief . . . the court shall enter an order denying the relief
sought” without an evidentiary hearing. Additionally, this Court has stated that,

               “[a] court having jurisdiction over habeas corpus proceedings may deny a
       petition for a writ of habeas corpus without a hearing and without appointing
       counsel for the petitioner if the petition, exhibits, affidavits or other documentary
       evidence filed therewith show to such court’s satisfaction that the petitioner is
       entitled to no relief.” Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
       S.E.2d 657 (1973).

Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).

        As the circuit court ruled, and as respondent correctly argues to this Court, counsel
cannot be ineffective when counsel does not represent petitioner. The summary dismissal of
petitioner’s current habeas petition was proper. Having reviewed the circuit court’s order entered
July 7, 2014, 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 affirm.

                                                                                           Affirmed.




       6
           We note that the alleged ineffective assistance of Attorney Mauzy upon remand to
circuit court after our June 22, 2012, memorandum decision was the only ground for habeas
relief that was presented to the circuit court. Accordingly, other issues raised in petitioner’s brief
will not be addressed as they were not properly before the circuit court or have been decided
against him in prior proceedings.
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ISSUED: June 12, 2015

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISQUALIFIED:

Chief Justice Margaret L. Workman




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