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Alvin C. v. Ballard

Supreme Court of West Virginia

April 21, 2017

Alvin C., Petitioner Below, Petitioner
v.
David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent

         Webster County 15-P-21

          MEMORANDUM DECISION

         Petitioner Alvin C., [1] 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.

         The 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 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.[2] 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.

         Petitioner 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.

         Petitioner 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").

         Petitioner 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."

         Petitioner 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?
A. Yeah.
Q. And[, ] you went with her permission?
A. Yeah.
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 ...

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