Alvin C.,  pro se, appeals the December 18, 2015,
order of the Circuit Court of Webster County dismissing his
petition for a writ of habeas corpus. Respondent David
Ballard, Warden, Mount Olive Correctional Complex, by counsel
Julie A. Warren, filed a summary response in support of the
circuit court's order. Petitioner filed a reply.
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.
2005, petitioner was indicted on two counts of third-degree
sexual assault pursuant to West Virginia Code § 61-8B-5
and two counts of sexual abuse by a parent, guardian, or
custodian pursuant to West Virginia Code § 61-8D-5 for
acts allegedly committed on a fourteen-year-old child in
April of 2003. A jury subsequently convicted petitioner
on all counts. The circuit court sentenced petitioner to an
aggregate term of twenty to forty years of incarceration with
a combination of concurrent and consecutive sentences.
Petitioner petitioned this Court to review his convictions in
2006, and the Court refused his appeal.
filed his first petition for a writ of habeas corpus on
August 18, 2006, and was subsequently appointed counsel.
Petitioner's habeas attorney filed an amended petition on
December 26, 2006, alleging eighteen grounds of relief. The
circuit court held an omnibus habeas corpus hearing on May
27, 2007. On December 12, 2007, the circuit court denied the
petition after addressing all eighteen grounds including
ineffective assistance of trial counsel.
filed his second habeas petition on September 23, 2010, with
regard to a nunc pro tunc order the circuit court
entered on April 28, 2009, to correct an error in its
December 12, 2007, order denying petitioner's first
petition. Because the error related to whether
petitioner's sentences continued to run consecutively,
petitioner argued the nunc pro tunc order violated
double jeopardy principles. Petitioner was again appointed
habeas counsel and provided a hearing on February 9, 2011. On
February 23, 2011, the circuit court denied the second
petition. Petitioner appealed to this Court, and we affirmed
the circuit court's February 23, 2011, order.
See [Alvin C.] v. Ballard, at 2
No. 11-1082 (W.Va. Supreme Court, March 12, 2012) (memorandum
decision) ("Alvin C. I").
filed his third habeas petition on October 16, 2013,
asserting that counsel in each of his prior habeas
proceedings failed to conduct a reasonable investigation into
his claims. However, petitioner's allegations focused on
his trial counsel's performance. Accordingly, on
December 11, 2013, the circuit court denied petitioner's
third petition on the ground that the issues raised therein
were previously and finally adjudicated or waived in his
prior habeas corpus proceedings. Petitioner appealed the
denial of his third petition, which we affirmed in [Alvin
C.] v. Ballard, No. 14-0020, at 3 (W.Va.
Supreme Court, April 28, 2014) (memorandum decision)
("Alvin C. II"), on the ground that
"petitioner has already had prior habeas proceedings in
which he was afforded counsel and a hearing, [and] he may not
re-raise the ineffectiveness of trial counsel."
filed his fourth habeas petition on November 16, 2015,
alleging that his trial attorney and his habeas attorneys
were ineffective by not raising the issue of whether
petitioner was his victim's custodian at the time of his
offenses. In his petition, petitioner quoted from the trial
testimony of his minor victim's mother. The victim's
mother was asked whether petitioner "was supposed to
take care of him." She answered, "Yes, [petitioner]
was the adult." Petitioner also quoted the victim's
testimony as follows:
Q. Okay. So[, ] when he picked you up at the house your mom
took you out[, ] she knew where you were going?
Q. And[, ] you went with her permission?
Q. And[, ] during these times you went with [petitioner, ]
who was watching you? Who was in charge of you to make sure
you stayed out ...