Alvin C. v. David Ballard, Warden, 16-0030

Alvin C. was indicted in 2005 for sexual offenses against a 14‑year‑old and convicted by a jury; he received an aggregate 20–40 year sentence. His direct appeal was refused in 2006.
He filed multiple state habeas petitions: first in 2006 (denied after counsel and hearing), second in 2010 (challenging a nunc pro tunc sentencing correction; denied and affirmed on appeal), third in 2013 (denied as successive/waived and affirmed), and a fourth in 2015 (the subject of this appeal).
The 2015 petition alleged ineffective assistance of his trial and prior habeas counsel for failing to challenge whether he was the victim’s “custodian” and for failing to secure a jury instruction that the State must prove he “assumed” babysitting/custodial responsibility.
The circuit court summarily dismissed the 2015 petition as successive and previously adjudicated/waived; petitioner appealed the dismissal without a hearing or appointment of counsel.
The Supreme Court of Appeals applied Strickland standards for ineffective assistance, reviewed whether (1) sufficient evidence supported sending the custodian question to the jury and (2) the jury was properly instructed on the statutory definition of “custodian.”

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether habeas counsel were ineffective for not challenging sufficiency of evidence that petitioner was the victim's "custodian"	Alvin: testimony showed he was "in charge" and thus counsel should have argued insufficiency or pursued relief	Ballard: testimony was sufficient; the custodial question was properly a jury question under precedent	Denied — sufficient evidence existed to send custodian issue to the jury; counsel not ineffective
Whether habeas counsel were ineffective for not challenging jury instructions on "custodian" under WV Code §61‑8D‑5	Alvin: jury should have been instructed that the State needed to prove he "assumed" babysitter/custodial role	Ballard: court instructed the jury using the statutory definition of "custodian," which was appropriate; case law supports that definition	Denied — jury received the statutory definition; instruction proper; counsel not ineffective
Whether the successive‑petition bar is inapplicable because petitioner alleged ineffective assistance of habeas counsel	Alvin: Losh doctrine allows successive petitions when habeas counsel were ineffective	Ballard: alleged failures were meritless, so Losh does not rescue a successive petition	Denied — Losh does not apply because the alleged habeas‑counsel failures lack merit

Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006) (standards of review in habeas proceedings)
Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (summary dismissal of habeas petition when record shows no relief)
Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981) (ineffective assistance of habeas counsel can prevent application of res judicata to successive habeas)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged ineffective assistance test)
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (adopting Strickland standard in WV)
State v. Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999) (a babysitter may be a "custodian" under §61‑8D‑5; custodian is a jury question)
State v. Longerbeam, 226 W.Va. 535, 703 S.E.2d 307 (2010) (discusses when custodial status may not be established; distinguished on facts)
Martinez v. Ryan, 566 U.S. 1 (2012) (federal rule on excuse for procedural default where initial state habeas counsel ineffective)