                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


James Luther Blackford III,                                                        FILED
Petitioner Below, Petitioner                                                    May 18, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0448 (Berkeley County 11-C-463)                                     OF WEST VIRGINIA


Debra Minnix, Warden,
Pruntytown Correctional Center,
Respondent Below, Respondent


                              MEMORANDUM DECISION
       Petitioner James Luther Blackford III, by counsel James P. Riley IV, appeals the Circuit
Court of Berkeley County’s April 9, 2014, order that denied his petition for writ of habeas
corpus. Respondent Debra Minnix, Warden, by counsel Christopher C. Quasebarth, filed a
response. On appeal, petitioner argues that the circuit court erred in denying his petition for writ
of habeas corpus because he received ineffective assistance of counsel.

        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 October of 2009, the Grand Jury of Berkeley County returned a three-count indictment
against petitioner for (1) first-degree arson in violation of West Virginia Code § 61-3-1; (2)
setting fire to lands in violation of West Virginia Code § 61-3-6; and (3) causing serious injury
during an arson-related crime in violation of West Virginia Code § 61-3-7. In August of 2010,
prior to trial, the State offered petitioner a plea agreement through his trial counsel. Under the
plea agreement, if petitioner pled guilty to first-degree arson and causing serious injury during an
arson-related crime, the State would dismiss the count of setting fire to lands and agree to a
binding concurrent sentence on any prison term imposed. Petitioner’s trial counsel sent him a
letter the following day explaining the plea agreement and stating that, under the plea agreement,
he could receive a maximum twenty-year prison term. He also wrote, “[a]s we discussed
previously, a twenty year sentence would really be a 2 ½ to 10 year sentence.” In mid-August of
2010, petitioner signed the plea agreement.

       Three months later, in November of 2010, the circuit court held a plea hearing at which




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petitioner pled guilty as reflected in the August of 2010 agreement.1 Clearly handwritten on his
plea paperwork, signed by him, are the maximum determinate sentences for each crime—twenty
years in prison for one count of first-degree arson and fifteen years in prison for one count of
causing serious injury during an arson-related crime. The circuit court sentenced petitioner to the
maximum determinate terms for each crime to run concurrently to each other. The State
dismissed the remaining count of setting fire to lands. Petitioner did not appeal that conviction
and sentence.

        According to petitioner, he filed a pro se petition for writ of habeas corpus in June of
     2
2011. Between 2011 and 2013, petitioner was appointed counsel who, in April of 2013, filed an
amended habeas petition and Losh list.3 The amended petition raised three grounds for relief: (1)
defective indictment; (2) ineffective assistance of trial counsel; and (3) more severe sentence
than expected. In October of 2013, the State filed its response and a motion to dismiss
petitioner’s habeas petition, and petitioner thereafter filed a reply to both the response and the
motion to dismiss.

        The circuit court held a hearing in January of 2014, at the conclusion of which it
dismissed all of petitioner’s habeas claims except for ineffective assistance of trial counsel due to
mistaken advice as to the parole eligibility date. The circuit court asked petitioner’s habeas
counsel if he wished to have an omnibus evidentiary hearing on the ineffective assistance claim.
Petitioner’s habeas counsel offered his client’s verified amended habeas petition, which included
a statement that petitioner would not have pled guilty if he had known he was not parole eligible
for five years, and trial counsel’s letter from August of 2010. Both were admitted into evidence.
Upon inquiry by the circuit court as to whether he wished to have another hearing on the
ineffective assistance claim, counsel conceded that he had no additional evidence to provide on
the issue. The circuit court took the matter under advisement.

        By order entered on April 9, 2014, the circuit court denied petitioner’s claim of
ineffective assistance of counsel. This appeal followed.4

       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

          1
              Notably, the parties did not include any transcripts of pertinent hearings in the record on
appeal.
          2
              The parties also did not include the 2011 pro se habeas petition in the record on appeal.
          3
        See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)(providing an extensive,
though not exhaustive, checklist of grounds potentially employed in habeas corpus proceedings,
commonly referred to as “the Losh list.”).
          4
        It appears that petitioner received parole after his appeal became mature for review by
this Court.
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       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’s sole issue is the same as that presented to and considered by the
circuit court—that he is entitled to habeas relief because his trial counsel was constitutionally
ineffective for providing him a letter with the incorrect minimum parole eligibility period. Upon
our review and consideration of the circuit court’s order, the parties’ arguments, and 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 the error he assigns in this appeal, which was also argued below. Having
reviewed the circuit court’s “Order Denying Petition for Writ of Habeas Corpus,” entered on
April 9, 2014, we hereby adopt and incorporate the circuit court’s well-reasoned findings of fact
and conclusions of law as to the assignment 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: May 18, 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




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