                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



Ray Loy,                                                                         FILED
Petitioner Below, Petitioner                                                   February 11, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs.) No. 11-1638 (Hancock County 09-P-11)                                     OF WEST VIRGINIA


Evelyn Seifert, Warden,
Respondent Below, Respondent

                                MEMORANDUM DECISION

        Petitioner, Ray Loy, by counsel, Scott C. Brown, appeals from the “Order” denying his
petition for writ of habeas corpus entered by the Circuit Court of Hancock County on October
27, 2011. Respondent, Evelyn Seifert, Warden of the Northern Correctional facility, appears by
counsel, Laura J. Young and Michele D. Bishop.

       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.

        Petitioner was indicted on five counts charging him with second degree sexual assault,
use of a minor to produce obscene matter and to do sexually explicit conduct, and possession of
material depicting minors engaging in sexually explicit conduct. A Federal Grand Jury indicted
petitioner on twenty individual counts of production of child pornography in violation of 18
U.S.C. §2251(a) and (e). The Hancock County Prosecuting Attorney orally moved to dismiss the
indictment without prejudice so it could present a superseding indictment against petitioner with
additional crimes the State became aware of through the Federal investigation. The Hancock
County Grand Jury re-indicted petitioner on thirteen counts, charging him with second degree
sexual assault, use of minor to produce obscene matter and to do sexually explicit conduct, and
possession of material depicting minors engaging in sexually explicit conduct.

        Prior to petitioner’s plea and sentencing hearing, he was presented with a written plea
agreement pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure. The
plea agreement was negotiated between petitioner’s federal attorney and the Hancock County
Prosecuting Attorney, regarding the State charges. Pursuant to the plea agreement, an
information was filed charging petitioner with ten counts of use of minors in filming sexually
explicit conduct in violation of West Virginia Code §61-8C-2. As conditions of the plea, the
State agreed to dismiss the remaining counts in the State case, would not seek to enhance
petitioner’s sentence under the West Virginia recidivism statute, and the United States
Attorney’s Office for the Northern District of West Virginia would dismiss the federal charges.

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         On October 21, 2010, petitioner filed a “Losh List” asserting fourteen grounds for habeas
relief, and filed a petitioner for writ of habeas corpus. Following the hearing, the circuit court
denied petitioner’s final petition by order entered October 27, 2011. The circuit court’s order
addressed each of petitioner’s grounds for relief in a well-reasoned fifteen page final order.
Petitioner now appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
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 only assignment of error, petitioner asserts that trial counsel did not provide
effective assistance of counsel when he: (1) failed to file a motion to suppress evidence obtained
from a search warrant issued May 19, 2007, in the State action; (2) failed to appear at the July
24, 2008, plea and sentencing hearing; and (3) violated Rule 1.3 of the West Virginia Rules of
Professional Conduct. Finally, petitioner argues his statement that he “probably could have taken
a different road for sure” is sufficient under Syl. Pt. 1(b), Lafler v. Cooper, 132 S.Ct. 1376, 182
L.Ed.2d 398 (March 21, 2012).

        The State argues that the decision not to contest the search warrant was based on a
strategic decision that the court finds was well founded under the circumstances, especially since
the petitioner consented to this planned decision. Additionally, the State argues petitioner was
extensively questioned regarding his satisfaction with counsel and the overall disposition of the
case.

        After careful considerations of the parties’ arguments this Court concludes that the 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” entered on October 27, 2011, 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. Because the circuit court had no opportunity to decide the issue of
counsel’s violation of Rule 1.3 of the West Virginia Rules of Professional Conduct, this Court
will not address the issue on appeal.

        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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