                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Edgar W. Friedrichs, Jr.,                                                           FILED
Petitioner Below, Petitioner                                                     November 8, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0031 (Fayette County 10-C-93)                                        OF WEST VIRGINIA



David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Edgar W. Friedrichs, Jr., by counsel Thomas Rist, appeals an order of the
Circuit Court of Fayette County entered on December 12, 2012, that denied his pro se petition
for post-conviction habeas corpus relief. The State of West Virginia, by counsel Marland L.
Turner, has filed its response on behalf of Respondent, Warden David Ballard to which petitioner
replied.

        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 2001, petitioner was indicted on five counts: Count One, first degree sexual abuse; and
Counts Two through Five, sexual abuse by a custodian. On January 30, 2002, a jury found
petitioner guilty on the first four counts and acquitted petitioner on the fifth count. Thereafter,
the circuit court sentenced petitioner to sixteen to fifty years in prison for these convictions.
Petitioner’s direct appeal from his criminal convictions was refused by the Court on June 18,
2003.

        On April 10, 2010, petitioner filed a pro se petition for writ of habeas corpus asserting
twenty-three substantive grounds for relief. Petitioner also filed a motion for appointment of
counsel that was denied by the circuit court. By order entered August 3, 2010, the circuit court,
absent an evidentiary hearing, denied petitioner’s habeas petition, but addressed only the first
thirteen grounds for relief.

        On November 4, 2010, the circuit court appointed Attorney Jeffrey Mauzy to represent
petitioner for the purpose of filing an appeal. In that appeal, petitioner argued that the circuit
court erred by failing to hold an evidentiary hearing; denying his motion to appoint habeas
counsel; denying relief on his first thirteen grounds for relief; and failing to address his last ten
grounds for relief.

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        While petitioner’s appeal was pending at this Court, petitioner’s appellate counsel,
Jeffrey Mauzy, accepted employment with the Fayette County Prosecutor’s Office.

         In Friedrichs v. Ballard, No. 11-0564 (W.Va. Supreme Court, June 22, 2012)
(memorandum decision), this Court affirmed the circuit court’s order in regard to petitioner’s
first two assignments of error (failing to hold a hearing and to appoint counsel), and adopted the
circuit court’s order denying relief on petitioner’s first thirteen grounds for relief. However, in
regard to petitioner’s third assignment of error (the circuit court’s failure to rule on petitioner’s
last ten grounds for relief), the Court remanded the case with instructions to the circuit court to
so rule.

       While the case was on remand to the circuit court, petitioner filed a motion to recuse the
Fayette County’s Prosecutor’s Office from appearing in the case on the ground that Mr. Mauzy
now worked for that office. Petitioner also moved for the appointment of a special prosecutor.

        By order entered December 12, 2012, the circuit court noted that it had failed to rule on
ten of petitioner’s twenty-three grounds for relief due to petitioner’s confusing and poorly-
drafted petition, and due to natural disasters and other events that resulted in the Fayette County
Courthouse being closed for many days. The circuit court then considered and denied petitioner’s
habeas petition on the remaining ten grounds without appointing habeas counsel, holding an
evidentiary hearing, or disqualifying the prosecutor’s office.

       Petitioner now appeals the circuit court’s December 12, 2012, order.

               “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).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). Petitioner
raises three procedural and ten substantive assignments of error. Petitioner’s first two procedural
assignments are that the circuit court erred in failing to appoint habeas counsel and in failing to
hold an evidentiary hearing.

        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

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       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). In the order on appeal, the
circuit court noted that it (1) had conducted a careful review of the relevant law, the complete
contents of the court file, the underlying criminal case file, and the trial transcript; and (2) had
presided over the jury trial in petitioner’s underlying criminal case and was therefore thoroughly
familiar with the case. The circuit court then determined that, pursuant to West Virginia Code §
53-4A-7, no evidentiary hearing was needed. Accordingly, and in light of the Perdue standard,
we cannot say that the circuit court abused its discretion in denying petitioner’s motion for
appointment of habeas counsel and in choosing to rule on petitioner’s habeas petition absent an
evidentiary hearing.

       Petitioner’s third procedural argument is that the circuit court erred in denying his
motions to disqualify the prosecutor’s office and to appoint a special prosecutor without holding
a hearing to determine if petitioner’s former counsel had been effectively and completely
screened from involvement in this case.

        We note the circuit court’s comprehensive findings in the order on appeal, which
petitioner does not challenge: (1) that petitioner’s appeal was fully prosecuted before Mr. Mauzy
went to work for the prosecutor’s office; (2) that Mr. Mauzy no longer represents petitioner; (3)
that no one from the prosecutor’s office participated in any manner in drafting the order
petitioner now appeals; (4) that Mr. Mauzy’s work for the prosecutor was limited to matters
involving juvenile delinquency and child abuse and neglect; and (5) that when Mr. Mauzy went
to work for the prosecutor’s office, the prosecutor sent the following memo to “All Employees:”

       This is a reminder that no one in this office, secretary or attorney, is to discuss in
       any way, with Jeff Mauzy, any of the cases he previously worked in, whether it be
       abuse and neglect, criminal or others. This measure is necessary to ensure that
       neither the office nor Mr. Mauzy breaches any ethical boundary. This in in order
       to build a “Chinese Wall” around these cases. . . .

Attached to this memo was a list of Mr. Mauzy’s prior cases, including the appeal of petitioner’s
first habeas petition. Based on these findings, the circuit court concluded that petitioner’s motion
to recuse was frivolous.

         This Court has held: “‘As the primary responsibility of a prosecuting attorney is to seek
justice, his affirmative duty to an accused is fairness.’ Syl. pt. 2, State v. Britton, 157 W.Va. 711,
203 S.E.2d 462 (1974).” State v. King, 183 W.Va. 440, 441, 396 S.E.2d 402, 403 (1990). Here,
the circuit court found that the prosecutor upheld that primary responsibility and made every
effort to effectively and completely screen Mr. Mauzy from petitioner’s case and to prevent all
other employees in the office from discussing petitioner’s case with Mr. Mauzy. As such, we
cannot say that the circuit court abused its discretion in denying petitioner’s motions to recuse or
to appoint a special prosecutor. As for petitioner’s claim that the circuit court erred in failing to
hold a hearing to determine whether Mr. Mauzy had been effectively and completely screened
from involvement in this case, we find that the circuit court fully addressed that issue in its

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findings and conclusions. Further, and as we noted above, a hearing is not required where the
habeas court is satisfied from the pleadings and the record that the petition for habeas relief lacks
merit.

        Petitioner’s ten substantive assignments of error address his right to a fair trial, effective
assistance of counsel, confrontation of witnesses, and double jeopardy. The circuit court made
comprehensive findings in regard to each of these assignments of error, and did not err in
concluding that all were without merit under West Virginia and federal law. Having reviewed the
circuit court’s “Order” entered December 12, 2012, 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.


ISSUED: November 8, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Senior-Status Justice Thomas E. McHugh sitting by temporary assignment

DISQUALIFIED:

Justice Margaret L. Workman




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