IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEVIN ALBERT POUND, )

)

Petitioner, )

)

v. ) Civil Action No. 05-156E

) JUDGE SEAN McLAUGHLIN

WARDEN JAMES VESHECCO, ) MAGISTRATE JUDGE BAXTER

)

Respondent. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that the Petition for Writ of Habeas Corpus be dismissed and that

a certificate of appealability be denied.

II. REPORT

At the time this petition was filed in May, 2005, petitioner Pound was in prison

pursuant to two contempt citations imposed by the Court of Common Pleas of Erie County for his

failure to pay child support. Petitioner alleges that his sentence was "illegal" and that he was denied

representation. Respondent District Attorney of Erie County has attached to the response all relevant

contempt citations, which establish that the sentence for contempt was initially imposed in October,

2004, at a proceeding at which petitioner did not appear. Petitioner was ordered to jail until such time

as he purged his contempt by payment of his child support obligations. Petitioner was ultimately

incarcerated on May 3, 2005, and was released from custody on June 9, 2005.

In Chadwick v. Janecka, 312 F.3d 597 (3d Cir. 2002), the court was faced with a

situation very much similar to this case. Mr. Chadwick refused to comply with a state court order to

pay money into an escrow account in an ongoing divorce proceeding. The state court ordered

Chadwick jailed for contempt until such time as the money was paid into an escrow account. After

a lengthy discussion of precedent, the Chadwick court concluded that the state court's contempt order

did not violate federal law since there was no proof that Chadwick was unable to comply with the state

court's orders. The Chadwick court concluded that its "decision does not preclude Mr. Chadwick from

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1 Petitioner, although released from custody, did not provide the court with a forwarding

address. 

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filing a new federal habeas petition if he claims that he is unable for some reason to comply with the

state court's order." 312 F.3d at 614.

In this case, the petitioner does not allege that he was unable to pay the child support

ordered by the state court and, hence, that he was unable to purge himself of contempt. Therefore,

petitioner's incarceration was not constitutionally infirm. Chadwick, supra. The petition should be

dismissed.

And, in any event, the instant petition is also moot. The manner in which a petition

for writ of habeas corpus may be mooted by the passage of time has been explained in the following

fashion:

“[A]n incarcerated convict's (or a parolee's) challenge to the validity of his

conviction always satisfies the case-or-controversy requirement, because the

incarceration (or the restriction imposed by the terms of the parole) constitutes

a concrete injury, caused by the conviction and redressable by invalidation of

the conviction." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d

43 (1998). However, after the convict's sentence expires, "some concrete and

continuing injury other than the now-ended incarceration or parole--some

'collateral consequence' of the conviction--must exist if the suit is to be

maintained." Id. In Spencer, the Supreme Court held that insufficient collateral

consequences resulted from the petitioner's parole revocation to avoid

mootness. Id. at 14-17, 118 S.Ct. 978. In so holding, the Court criticized

precedent that presumed the existence of collateral consequences and that

accepted "the most generalized and hypothetical of consequences as sufficient

to avoid mootness." Id. at 10. In particular, the Court criticized its decision in

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968),

where the Court held that the "mere 'possibility'" of adverse collateral

consequences is sufficient to preclude a finding of mootness. Id. at 55, 88 S.Ct.

1889 (citation omitted). Nevertheless, the Spencer Court did not overrule

Sibron, instead distinguishing it by noting that although a court may presume

collateral consequences in the context of a criminal conviction, the same

cannot be said of parole revocation. 523 U.S. at 12, 118 S.Ct. 978.

Chong v. District Director, I.N.S., 264 F.3d 368, 384 (3d Cir. 2001). This matter became moot on

June 9, 2005, when petitioner was released from state custody1.

"A certificate of appealability may issue . . . only if the applicant has made a substantial

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showing of the denial of a constitutional right." 28 U.S.C. §2253(c). Because petitioner has not made

such a showing, a certificate of appealability should be denied.

CONCLUSION

Wherefore, on the basis of the foregoing, it isrespectfullyrecommended that the instant

petition for writ of habeas corpus be dismissed and that a certificate of appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file written objections to this Report and Recommendation. Any party opposing the

objections shall have seven (7) days from the date of service of objections to respond thereto. Failure

to file timely objections may constitute a waiver of any appellate rights.

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

UNITED STATES MAGISTRATE JUDGE

Dated: November 30, 2006

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