No. 16-1056C Filed: January 6, 2017



## ****** ** * * ********* * * COLLINS 0. NYABWA, 

## * Plaintiff, 

## * * v. 

## * * UNITED STATES, 

## * Defendant. 

## * * * ****************** * Collins 0. Nyabwa, pro se, Corpus Christi, TX. 

# FILED
JAN

- 

## 62017

U.S

.COURTOF FEDERAL CLAIMS 28 

## u.s.c. § 1495; 28 

## u.s.c. § 2513; Motion to Dismiss; Pro 

### Se.

Alexander 0. Canizares, Trial Attorney, Commercial Litigation Branch
, Civil Division
, United States DepartmentofJustice, Washington
, D.C., fordefendant.With him
was Robert E. Kirschman, Jr., Director, Commercial Litigation Branch
, Benjamin C. Mizer, Principal DeputyAssistantAttorney General, Civil Division, DepartmentofJustice, Washington
, D

.C.

OPINION
HORN, J.

FINDINGS OF FACT

Pro se plaintiff, Collins Nyabwa
, filed an apparent complaint titled "ACTUAL INNOCENCE COMPENSATION CLAIM PURSUANTTO 28 U.S.C. §§ 1495AND 2513 (COLLECTIVELY, THE 'UNJUST CONVICTION STATUTES') AND BRIEF IN SUPPORT THEREOF" in the United States Court of Federal Claims alleging that defendant, the United States, "illegally detained/wrongfully imprisoned" him
,forviolating federal immigration law
, at a federal immigration detention center in Houston, Texas, between July 2012 and November 2013

.1 As a result of plaintiff's allegedly illegal detentionand allegedlywrongful imprisonmentforapproximatelysixteen months
,plaintiff seeksto recover $66,666

.00 in monetarydamages pursuantto 28 U

.S.C

. 

### § 1495 (2012) and 28 U

.S

.C

. 

### § 2513 (201 2). Plaintifffiled a motion to proceed in forma pauperis
,which this court granted

.

1 Accor ding to plaintiff
, prior to his conviction under Texas state law
, he was a legal resident ofthe United States.Plaintiffalleges that, on July 29, 2011, he was convicted by aTexas state court of three counts "Improper Photography" underTexas state statute "§21.15(b)(1),"forwhich hewas sentencedto oneyear imprisonment. Plaintiffallegesthat "upon completion ofhis Texas state jail sentence" in July 2012, he was "transferred to an immigration detention center in Houston Texas" and held under mandatory detention for deportation proceedings. Plaintiffstatesthat, in April 2013, "because oftheTexas state convictions," federal immigration authorities charged, and subsequently convicted, him of violating federal immigration law 8 U.S.C. § 1227(a)(2)(A)(ii) (2012), and ordered that he be deported to Kenya. According to his complaint, plaintiffwas released from the detention center in November 2013 "when an Immigration Judge terminated his immigration proceedings."

Plaintiff alleges that, approximately one year after his release from the federal detention center, "in an unrelated case," Ex ParleThompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014), the Texas Court of Criminal Appeals found the Texas state statute underwhich Mr. Nyabwa had been convicted to be unconstitutional. On August23, 2016, approximatelythree years after plaintiffwas released from the detention center, a United States Judge ofthe Southern District ofTexas vacated plaintiff's three convictions under Texas state law. See Nyabwa v. Davis, No. H-12-1152 (S.D. Tex. Aug. 24, 2016) (vacating the previousjudgments ofTexas trial court adjudging Collins 0. Nyabwa guilty of improper photography undersection 21.15(b) ofthe Texas Penal Code). 2

In his complaint, plaintiff asserts that, because his Texas state convictions were vacated in August 2016, "he is 'actually innocent' of any violations to 8 U.S.C. § 1227(a)(2)(A)(ii), the federal immigration statute behind his immigration detention."According to plaintiff, his "immigration violationswere ONLY brought about by his Texas State convictions and now that they have been formally VACATED, he is 'actually/factually' innocent ofANY immigration violation." Plaintiff asserts that, because he is "'actually innocent,' the U.S. government must compensate him pursuant to 28 U.S.C. § 1495 

### &2513 for his 16 months of wrongful detention/imprisonment," in the amount of$66,666.00.

In sum, the timeline of events plaintiff offers, other than the numerous cases he had filed in United States District Courtforthe Southern District ofTexas,3 is that: on July

2The Ordervacating plaintiff'sthreeconvictionswas issued onAugust23, 2016, two days before plaintifffiled his complaint in the above-captioned case.

3 In addition to the above-captioned case, it appears that Mr. Nyabwa has initiated the following actions in the United States District Court ofTexas, Southern District relating to his allegedly impropersixteen-month detention, which remain pending: Nyabwa v. Harris Cty. Sheriff, 16-mc-2118 (S.D. Tex. Sept. 14, 2016); Nyabwa v. Warden, No. 16-mc-1965 (S.D. Tex. Aug. 29, 2016); Nyabwa v. Warden, No. 16-2638 (S.D. Tex. Aug. 29, 2016); Nyabwa v. Corrections Corp. ofAm., No. 16-1644 (S.D. Tex. June 6, 2016); Nyabwa v. UnknownJailersatCCA, No. 16-782 (S.D. Tex. Mar. 24, 2016); Nyabwav. United States, No. 16-783 (S.D. Tex. Mar. 23, 2016). Plaintiffalsofiled thefollowing actions in the United States District CourtofTexas, Southern District relating to his allegedly impropersixteen229, 2011, hewas convicted underthe Texas Penal Code and sentenced to oneyearstate imprisonment; following his release, he was held in an immigration detention centerfrom July 2012 to November 2013, when he was released; in September 2014, the Texas Court of Criminal Appeals held the state statute under which plaintiff was previously convicted to be unconstitutional; in August 2016, a Judge ofthe United States Southern District of Texas vacated plaintiff's earlier convictions; and, on August 25, 2016, Mr. Nyabwa filed his complaint in this court.

In response to plaintiff's complaint, defendant filed a motion to dismiss plaintiff's complaint pursuantto Rule 12(b)(1) and (b)(6) ofthe Rules ofthe United States Court of Federal Claims (RCFC) (2016). Defendant argues that this court lacks subject matter jurisdiction to consider Mr. Nyabwa's claims under28 U.S.C. 

### § 1495 becausethis statute limits the court's jurisdiction to claims based upon wrongful convictions for Federal, not state, crimes. Defendantalso argues that a plaintiffseeking relief based upon an alleged reversal or set-aside of a conviction under 28 U.S.C. 

### § 2513(a) must demonstrate, through the necessary record or certificate, thatthe conviction was set aside dueto lack ofguilt.

DISCUSSION

The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in apro se complaint be heldto "less stringentstandardsthan formal pleadings drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthewsv. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff'd, 603 F. App'x 947 (Fed. Cir.), cert. denied 135 S. Ct. 1909 (2015). "However, "'[!]here is
no duty on the part ofthe trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.""' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Clarkv. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011);

month detention, which have been terminated: Nyawba v. Stephens, No. 12-1152 (S.D. Tex. Apr. 4, 2012) (terminated Aug. 23, 2016), appeal denied, No. 12-20682 (5th Cir. June 20, 2013); Nyabwa v. Harris Cty. Sheriff, 16-mc-2186 (S.D. Tex. Sept. 14, 2016) (terminated Jan. 4, 2016); Nyabwa v. Warden, No. 16-1643 (S.D. Tex. June 6, 2016) (terminated June 30, 2016); Nyabwa v. Warden, 16-0786 (S.D. Tex. Mar. 23, 2016) (terminated May23, 2016). Additionally, plaintiffindicates in his complaintthat he filed an administrative claim "on November 24, 2015 with the Department of Homeland Security (DHS) raising a similar 'actual innocence' compensation claim," and that "DHS formally denied plaintiff'sAdministrative Claim on February22, 2016." Plaintiffattached a copy of this claim to his complaint.



### 3Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9and Taylorv. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance ofthe evidence."), reh'g and reh'q en bane denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures."' (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less stringent standard, such leniency 'with respect to mere formalities does not relieve the burden to meetjurisdictional requirements."' (quoting Minehan v. United States, 75 Fed. Cl. at 253)).

Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1) for lack ofsubject matterjurisdiction, and RCFC 12(b)(6), for failure to state a claim for which relief may be granted. The TuckerAct, 28 U.S.C. 

### § 1491, grantsjurisdiction to this court as follows:

The United States Court of Federal Claims shall havejurisdiction to render judgment upon anyclaim againstthe United Statesfounded either uponthe Constitution, or any Act of Congress or any regulation of an executive department, or upon anyexpress or implied contractwith the United States,
orfor liquidated or unliquidated damages in cases notsounding in tort.

28 U.S.C. 

### § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the TuckerActwaives sovereign immunityto allowjurisdiction overclaims againstthe United States (1) founded on an express or implied contractwith the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'q and reh'q en banedenied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmerv. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

"Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable underthe TuckerAct. The claim must be one for moneydamages againstthe United States

...." United States v. Mitchell, 463 U.S. at 216; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must

... identify a substantive source of law that creates the right to recovery of money damages against the United States."); Golden v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation. Inc. v. United States, the United States Court of Appeals for the



### 4Federal Circuit identified threetypes ofmonetaryclaims forwhich jurisdiction is lodged in the United States Courtof Federal Claims. The courtwrote:

The underlying monetaryclaims are ofthreetypes

.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act's waiver

.... Second, the Tucker Act's waiver encompasses claims where "the plaintiff has paid money over to the Government, directlyor in effect, and seeks return ofall orpartofthatsum." Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in which 'the Government has the citizen's money in its pocket"' (quoting Clappv. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))

.... Third, the Court of Federal Claims hasjurisdiction overthose claims where "money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, eitherdirectly or in effect, require thatthe "particular provision oflaw relied upon grantsthe claimant, expressly or by implication, a rightto be paid a certain sum." 

## kL see also [United States v. ]Testan, 424 U.S. [392,] 401-02 [1976] ("Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulationdoes not create a cause ofaction for money damages unless, as the Court of Claims has stated, that basis 'in itself

... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a "money-mandating" statute.

Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
see also Twp. of Saddle Brookv. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon "'can fairly be interpreted as mandating compensation by the Federal Government."' United States v. Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)); see also United Statesv. White MountainApacheTribe, 537 U.S. at472; United States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290 (The TuckerAct does not create "substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.'" Jan's Helicopter Serv

.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty

.. Ariz. v. United States, 487 F.3d at 876); Fisherv. United States, 402 F.3d 1167, 1173 (Fed. Cir.



### 52005) (The absenceofa money-mandating source is "fataltothe court'sjurisdiction under the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).

When deciding a case based on a lack ofsubject matterjurisdiction orforfailure to state a claim, this court mustassume thatall undisputed facts alleged in the complaint
aretrue and mustdrawall reasonable inferences in the non-movant'sfavor. See Erickson

v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all ofthe factual allegations contained in the complaint." (citing Bell All. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewiczv. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Fid. 

### &Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

"Determination ofjurisdiction startswith the complaint, which must bewell-pleaded in that it must state the necessary elements ofthe plaintiff's claim, independent of any defensethat may be interposed." Holleyv. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 713 (2010). A plaintiffneed onlystate in the complaint "a shortand plain statementofthe groundsforthe court'sjurisdiction," and "a shortand plain statementofthe claim showing thatthe pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell All. Corp. v. Twombly. 550 U.S. 544, 555-57, 570 (2007)). To properly state a claim for relief, "[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to supporta claim." Bradleyv. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); seealso McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure§ 1286(3d ed. 2004)); Briscoev. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) ("[C]onclusory allegations unsupported by any factual assertions will not withstand a motionto dismiss."), affd, 460 U.S. 325 (1983). "Aplaintiff'sfactual allegations must'raise
a right to relief above the speculative level' and cross 'the line from conceivable to plausible.'" Three S Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell All. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g denied (Fed. Cir. 2014). As stated in Ashcroftv. Iqbal, "[a] pleading thatoffers 'labels and conclusions' or'aformulaic recitation ofthe elementsofa cause ofactionwill notdo.'550 U.S. at555. Nordoesacomplaintsuffice ifittenders 'naked assertion[s]'devoid of'further factual enhancement.'" Ashcroft v. Igbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

Whenconstrued liberally, plaintiff'scomplaintcontendsthat he is entitledto receive monetary damages pursuant to 28 U.S.C. § 1495 and 28 U.S.C. § 2513 because he is "actually innocent" ofthe state lawviolations forwhich he was convicted and, therefore, "actually innocent" ofanyviolation offederal immigration law 8 U.S.C. § 1227(a)(2)(A)(ii) that was the basis for his allegedly, illegal detention for a sixteen month period between July2012 and November2013. Defendantarguesthatplaintiffhasfailed to allegeorshow that he has obtained acertificate ofinnocencefrom anycourtorthat his actual innocence



### 6has been established, as required by 28 U.S.C. 

### §§ 2513 and 1495. Moreover, defendant argues that plaintiff's conviction underthe Texas Penal Code was not set aside due to a finding ofinnocence. Defendant argues also that this court does not have subject matter jurisdiction to consider plaintiff's claims under 28 U.S.C. 

### § 2513 because plaintiff's detention pursuantto the Immigration and Nationality Act, 8 U.S.C. 

### § 1227(a), "does not constitute an 'offense againstthe United States' for purposes ofsection 2513."According to defendant, plaintiff's deportation proceedings do not qualify as a conviction ofa crime committed against the United States for which money damages are available under 28 U.S.C. 

### § 2513.

Plaintiff tries to rely on 28 U.S.C. 

### § 1495 and 28 U.S.C. 

### § 2513 to invoke the jurisdiction of this court, however, Mr. Nyabwa's claim for monetary damages does not fall within the jurisdiction of this court. Although this court has jurisdiction to adjudicate certain claims for unjust conviction and imprisonment pursuantto 28 U.S.C. 

### §§ 1495 and 2513when a plaintiff's claim satisfiesspecified, well-established, threshold requirements, plaintiff in the above-captioned case has not met these requirements. Both 28 U.S.C. 

### § 1495 and 28 U.S.C. 

### § 2513 relate to criminal offenses against the United States, and, this court does not have jurisdiction to hear a plaintiff's unjust conviction and imprisonment claims arising from state crimes. See 28 U.S.C. 

### § 1495 (stating that this court hasjurisdiction to renderjudgment upon any claim fordamages any person unjustly convicted ofan offense againstthe United States) (emphasis added); see also Machulas
v. United States, 621 F. App'x 629, 632 (Fed. Cir. 2015) (holding thatthe CourtofFederal Claims did not possess jurisdiction to hear plaintiff's claim for unjust conviction and imprisonment because plaintiff was convicted of a state crime, not a federal crime). Therefore, to the extent plaintiff in the above-captioned case is seeking to recover monetarydamages based on aclaim of unjust conviction and imprisonment related to his conviction under a Texas state statute, this court does not have jurisdiction to consider such aclaim.

Plaintiff asserts that his complaint in this court alleging unjust imprisonment pertains onlyto his detention by federal immigration officials pursuantto the Immigration and Nationality Act, 8 U.S.C. 

### § 1227(a). According to 28 U.S.C. 

### § 1495, "[!]he United States Court of Federal Claims shall havejurisdiction to renderjudgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. 

### § 1495. Section 1495 oftitle 28, "must be read in conjunction with 28 U.S.C. 

### § 2513." Humphreyv. United States, 52 Fed. Cl. 593, 596 (2002), aff'd, 60 F. App'x 292 (Fed. Cir. 2003) (citations omitted); see also Abu-Shawish v. United States, 120 Fed. Cl. 812, 813 (2015) ("To establish jurisdiction, however, a plaintiff seeking compensation underSection 1495 mustalso meetthe requirements of28 U.S.C. 

### § 2513(a)(1)."). The statute at 28 U.S.C. 

### § 2513 states:
(a) Any person suing undersection 1495 ofthis title must allege and prove that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty ofthe offense ofwhich he was convicted, or on new trial or rehearing he was found not



### 7guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground ofinnocence and unjust conviction and (2) He did not commit any ofthe acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territoryorthe DistrictofColumbia, and he did notby misconduct or neglect cause or bring about his own prosecution. (b) Proofofthe requisitefacts shall be by acertificate ofthe court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received.
(c) No pardon or certified copy of a pardon shall be considered by the United States Court ofFederal Claims unless itcontains recitals thatthe pardon was granted after applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired.
(d) The Court may permit the plaintiff to prosecute such action in forma pauperis.
(e) The amount of damages awarded shall not exceed $100,000 for each 12-month period of incarceration for any plaintiff who was unjustly sentenced to death and $50,000 for each 12-month period of incarceration for any other plaintiff.

28 U.S.C. 

### § 2513 (emphasis in original). As this language indicates, 28 U.S.C. 

### § 2513 requires that a plaintiffsuing under 28 U.S.C. 

### § 1495, "must allege and prove" that "[h]is conviction has been reversed orsetasideon the ground that he is notguiltyofthe offense ofwhich he was convicted

... or that he has been pardoned upon the stated ground of innocence and unjustconviction," and, that "[h]e did not commit any ofthe acts charged." 28 U.S.C. 

### § 2513(a); see also Abu-Shawish v. United States, 120 Fed. Cl. at 813 ("[l]n order for this court to have jurisdiction, a plaintiff must obtain a certificate of innocence from the district court which states that not only was he not guilty of the crime of conviction, butalsothat noneofhis acts related tothe charged crimewere othercrimes."); Carpenter v. United States, 118 Fed. Cl. 712, 713 (2014) ("Jurisdiction conferred by Section 1495 is limited to a plaintiffwho proves that his conviction has been reversed or set aside on the grounds that he is not guilty

... or that he has been pardoned."). In Humphrey, this court indicated, "[t]hesejurisdictional requirements [of28 U.S.C. 

### § 1495 and 28 U.S.C. 

### § 2513] are strictly construed, and a heavy burden is placed upon a claimant seeking relief under such provisions." Humphreyv. United States, 52 Fed. Cl. at 596; see also Wood v. United States, 91 Fed. Cl. 569, 577 (2009) (holding that compliance with 

### § 2513, including submission of a certificate of innocence from the



### 8federal district court, is a prerequisite to the jurisdiction ofthe Court of Federal Claims). Additionally, as noted in Sykes v. United States, 105 Fed. Cl. 231 (2012), "a certificate or pardon must 'either explicitly or by factual recitation' state that the plaintiff has satisfied the requirements of Section 2513." 

### !Q,_ at 233 (quoting Humphrey v. United States, 52 Fed. Cl. at 597).

Plaintiff argues that he has provided the necessary proof of his innocence as required by 2513(a) by submitting to the court "a document proving a U.S. DistrictJudge
on 8/23/2016 VACATED his 3 Texas state convictions." Defendant argues that the vacation ofMr. Nyabwa'sconvictionfor reasons otherthan actual innocentis notsufficient to conferjurisdiction under section 2513.

Plaintiff has not alleged that his conviction was set aside or reversed because he had not committed, or was not guilty of, the acts underlying his original conviction. Instead, plaintiffrelies solelyon the Orderofthe United States District CourtJudgewhich held that "the Judgments of the 248th District Court of Harris County, Texas, in Cause Nos. 1266052, 1266053, and 1266054, adjudging Petitioner Collins 

### 0. Nyabwa guilty of improper photography undersection 21.15(b) ofthe Texas Penal Code, are VACATED." (emphasis in original). This Orderwas submitted by defendanttothe court. Section 2513 providesthat "[p]roofofthe requisite facts shall be by a certificate ofthe court or pardon," and that other evidence of a plaintiff's innocence shall not be received by the court. 28 U.S.C. 

### § 2513(b). This court reviewed the Order ofthe Texas District Court Judge and found no discussion of facts supporting plaintiff's innocence or a determination of innocence by the District Court. Having received and reviewed the Order ofthe Texas District Court Judge, this court finds that there is no evidence that even plaintiff's state court convictions were vacated due to a finding by any court of plaintiff's innocence, as required bythe statute. See Nyabwa v. Davis, No. H-12-1152 (S.D. Tex. Aug. 24, 2016). Additionally, plaintiff has not alleged, much less submitted, evidence that he received a pardon for the crimes for which he was convicted. Because plaintiff has failed to satisfy thejurisdictional requirements of28 U.S.C. 

### §§ 1495 and 2513, and plaintiffdoes not cite to any other authority to invoke the jurisdiction ofthis court, this court is not the proper forum to adjudicate plaintiff's claim. Plaintiff's claim for monetary damages does not fall within the grant ofjurisdiction to this court. The court also notes that plaintiff's detention at the immigration facility between July 2013 and November 2013 was not improper becausethe detentionwas based on plaintiff's criminal conviction, which was notvacated until August 24, 2016, based on the finding ofthe Texas Court ofCriminal Appeals that the statute under which plaintiff was convicted was unconstitutional, which occurred approximately oneyear after plaintiffwas released from the immigration detention center in November2013.



### 9CONCLUSION

Because plaintiff has failed to comply with the statutory requirements of 28 U.S.C. 

### §§ 1495 and 2513, defendant's motion to dismiss plaintiff's complaint is GRANTED, and plaintiff's complaint is DISMISSED. The Clerk of Court shall enter JUDGMENTconsistentwith this Order.

IT IS SO ORDERED.



### 10

# d~at:0-/L MARIAN BLANK HORN Judge