Opinion
3:21-CV-125-JD-MGG
03-05-2021
WESLEY D. PAVEY II, Petitioner, v. WARDEN, Respondent.
OPINION AND ORDER
JON E. DEGUILIO CHIEF JUDGE
Wesley D. Pavey II, a prisoner without a lawyer, filed a habeas corpus petition under 28 U.S.C. § 2254 to challenge his convictions for nonsupport of a defendant child under Case No. 71C01-1611-FC-40. Following a guilty plea, on February 19, 2020, the St. Joseph County Circuit Court sentenced him to four years of incarceration. Pursuant to Section 2254 Habeas Corpus Rule 4, the court must dismiss the petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Pavey argues that he is entitled to habeas relief because the State closed his Title IV-D case in November 2020 after concluding that he had satisfied his debts to the State. He refers to Title IV-D of the Social Security Act, a statutory mechanism for the civil enforcement of child support orders, which the Supreme Court of the United States has described as follows:
[T]he federal Aid to Families with Dependent Children (AFDC) program . . . provides subsistence welfare benefits to needy families. Social Security Act, Title IV-A, 42 U.S.C. §§ 601-617. To qualify for federal AFDC funds, the State must certify that it will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-669b, and will do so pursuant to a detailed plan that has been approved by the Secretary of Health and Human Services. The Federal Government underwrites roughly two-thirds of the cost of the State's child support efforts. But the State must do more than simply collect overdue support payments; it must also establish a comprehensive system to establish paternity, locate absent parents, and help families obtain support orders.
A State must provide these services free of charge to AFDC recipients and, when requested, for a nominal fee to children and custodial parents who are not receiving AFDC payments. AFDC recipients must assign their child support rights to the State and fully cooperate with the State's efforts to establish paternity and obtain support payments. Although the State may keep most of the support payments that it collects on behalf of AFDC families in order to offset the costs of providing welfare benefits, until recently it only had to distribute the first $50 of each payment to the family. The amended version of Title IV-D replaces this $50 pass-through with more generous distributions to families once they leave welfare. Non-AFDC recipients who request the State's aid are entitled to have all collected funds passed through. In all cases, the State must distribute the family's share of collected support payments within two business days after receipt.Blessing v. Freestone, 520 U.S. 329, 333-34 (1997).
Pavey was convicted of nonsupport of a dependent child. Under Indiana law, “[a] person who knowingly or intentionally fails to provide support to the person's dependent child commits nonsupport of a child.” Ind. Code § 35-46-1-5. “Support” is defined as “food, clothing, shelter or medical care.” Ind. Code § 35-46-1-1. “Thus, the fact that a parent owes a substantial amount of child support is not necessarily dispositive in determining criminal liability. Porter v. State, 935 N.E.2d 1228, 1231 (Ind. App. 2010). “A parent may escape criminal liability, however, by doing that for which he or she would find no refuge in a dissolution court, namely providing a dependent child with food, clothing, shelter or medical care.” Cooper v. State, 760 N.E.2d 660, 667 (Ind. App. 2001).
To obtain habeas relief, Pavey must show that he is in custody as the result of “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. ” 28 U.S.C. § 2254(d)(1). Pavey does not explain how his conviction violates clearly established federal law. He may be concerned that the resolution of the Title IV-D case is inconsistent with his conviction for nonsupport of a dependent, but, even if this were the case, it is unclear how this inconsistency would violate his constitutional rights. See Marozsan v. U.S., 90 F.3d 1284, 1289 (7th Cir. 1996) (”[T]he Due Process Clause is not a guarantee against incorrect results”). Further, these determinations are not inconsistent; Pavey's satisfaction of his debt with the State in the Title IV-D case in November 2020 does not contradict the finding that Pavey failed to support a dependent prior to his conviction in February 2020. Finally, a defendant convicted of nonsupport of a dependent does not purge himself of criminal liability by subsequently satisfying his support obligations. Gilmour v. State, 104 N.E.2d 127, 129 (Ind. 1952). Therefore, the resolution of the Title IV-D case is not a basis for habeas relief.
Pursuant to Habeas Corpus Rule 11, the court must consider whether to grant or deny a certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), the petitioner must make a substantial showing of the denial of a constitutional right by establishing “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons explained in this order, there is no basis for encouraging Pavey to proceed further
For these reasons, the court:
(1) DISMISSES this case pursuant to Rule 4 of the Rules Governing Section 2254 Cases;
(2) DENIES Wesley D. Pavey II a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and
(3) DIRECTS the clerk to close this case.
SO ORDERED.