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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

James Forest Tincher, 

Petitioner Below, Petitioner 

vs) No. 15-0295 (Kanawha County 15-P-86) 

Dennis Dingus, Warden, 

McDowell County Correctional Center, 

Respondent Below, Respondent 

MEMORANDUM DECISION

 Pro se petitioner James Forest Tincher appeals the Circuit Court of Kanawha County’s 

March 12, 2015, order summarily denying his petition for writ of habeas corpus. Respondent 

Dennis Dingus, Warden, by counsel Benjamin F. Yancey III, filed a response.1 On appeal, 

petitioner alleges that the circuit court erred in summarily denying his habeas petition and in 

making insufficient findings of fact. 

 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 April of 2010, a grand jury indicted petitioner on one count of bank robbery and one 

count of conspiracy. Thereafter, petitioner entered a guilty plea to one count of bank robbery 

without a handgun. Pursuant to the plea, the circuit court then sentenced petitioner to a term of 

incarceration of ten to twenty years. In November of 2010, petitioner’s counsel filed a motion for 

reduction of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. 

The circuit court ultimately denied this motion. Petitioner did not appeal this sentence. 

In March of 2015, petitioner filed a pro se petition for writ of habeas corpus. Petitioner 

alleged that his sentence was disproportionate to the crime and that his counsel was ineffective 

for failing to file an appeal of his sentence. Thereafter, the circuit court summarily denied the 

petition. It is from this order that petitioner appeals. 

This Court reviews appeals of circuit court orders denying habeas corpus relief under the 

following standard: 

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Pursuant to Rule 41(c) of the Rules of Appellate Procedure, the name of the current 

public officer has been substituted as the respondent in this action. 

FILED 

October 20, 2015

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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“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 to this Court, petitioner alleges that he was entitled to further habeas 

proceedings below, including an omnibus evidentiary hearing, because the circuit court could not 

appropriately rule on his petition without a full evidentiary record. The Court, however, does not 

agree. We have previously held 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. 3, Markley v. Coleman, 215 W.Va. 729, 601 S.E.2d 49 (2004). In the present matter, 

petitioner simply alleges that it was error to deny his petition because he alleged ineffective 

assistance of counsel for failure to appeal his sentence, and that his sentence is disproportionate. 

However, the circuit court clearly ruled that petitioner’s argument in regard to his sentence was 

previously raised on a Rule 35(b) motion, which was denied. 

Further, petitioner alleges that his counsel’s failure to appeal his conviction constitutes 

ineffective assistance of counsel because he was denied his right to an appeal. However, 

counsel’s failure to appeal a conviction, in and of itself, does not necessarily constitute 

ineffective assistance, especially in light of the fact that petitioner does not allege any facts that 

would support such a finding. Given petitioner’s entry of a guilty plea in the criminal 

proceedings below and his failure to allege any facts that would give rise to an ineffective 

assistance claim in this regard, such as incompetent advice of counsel or an involuntary plea, the 

circuit court clearly did not err in denying petitioner relief on his ineffective assistance of 

counsel claim. As such, it is clear that the circuit court did not err in summarily denying the 

petition for writ of habeas corpus. 

 Upon our review and consideration of the circuit court’s order, the parties’ arguments, 

and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. 

Our review of the record supports the circuit court’s decision to deny petitioner post-conviction 

habeas corpus relief based on these alleged errors, which were also argued below. Indeed, the 

circuit court’s order includes well-reasoned findings and conclusions as to the assignments of 

error raised on appeal. Given our conclusion that the circuit court’s order and the record before 

us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit 
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court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein 

and direct the Clerk to attach a copy of the circuit court’s March 12, 2015, “Final Order 

Dismissing Petition For Writ Of Habeas Corpus” to this memorandum decision. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 20, 2015 

CONCURRED IN BY:

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II