In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1283

MHAMMAD ABU-SHAWISH,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 03-CR-211-1-JPS — J.P. Stadtmueller, Judge.

____________________

ARGUED APRIL 5, 2018 — DECIDED JULY 31, 2018

____________________

Before KANNE, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Petitioner-appellant Mhammad 

Abu-Shawish was tried and convicted on a federal fraud 

charge, but that conviction was reversed after he served the 

entire prison sentence. Abu-Shawish was acquitted in a second trial. He now seeks damages under 28 U.S.C. § 1495 and

§ 2513 for unjust conviction and imprisonment. Abu-Shawish 

petitioned for a certificate of innocence—a prerequisite to a 

damages claim against the United States under those statutes. 
2 No. 17-1283

In this appeal, the government is in the unusual position of 

defending a dismissal it never requested. Without any response from the government, the district court dismissed the 

petition, reasoning that Abu-Shawish failed to provide evidence of his actual innocence. United States v. Abu-Shawish, 

228 F. Supp. 3d 878, 883–84 (E.D. Wis. 2017).

We vacate the dismissal and remand for further proceedings. The district court applied a standard that is too rigorous 

for the pleading stage of what is, in essence, a new civil case 

embedded within a closed criminal case. In the end, the question in this proceeding is whether Abu-Shawish can show by 

a preponderance of the evidence that he was in fact not guilty 

of a crime, not whether the trial evidence would have allowed 

a conviction. This is not to say that Abu-Shawish is entitled to 

relief, but he must be given a fair opportunity to show that he 

is entitled to damages under the governing statutes.

I. Factual and Procedural Background

A. Underlying Facts

Abu-Shawish was the founder and executive director of a 

Milwaukee-based non-profit organization. United States v. 

Abu-Shawish, 507 F.3d 550, 552 (7th Cir. 2007). On behalf of 

that non-profit, Abu-Shawish sought and received a grant 

from the City of Milwaukee to create a plan for revitalizing a 

street in Milwaukee. The problem was that the development 

plan from Abu-Shawish’s non-profit was “essentially identical” to a plan submitted by someone else and sponsored by a 

separate group. Id. at 553. The funds for the grant came from 

the United States Department of Housing and Urban Development, id. at 552, which explains why a local grant proposal 

ultimately piqued the interest of federal prosecutors. 
No. 17-1283 3

B. First Trial

On the theory that Abu-Shawish took the government’s 

money but gave it nothing it had not already paid for, the government charged him with federal program fraud under 18 

U.S.C. § 666(a)(1)(A). A jury convicted Abu-Shawish in 2005. 

The district court sentenced Abu-Shawish to three years in 

prison and ordered him to pay $75,000 in restitution to the 

City of Milwaukee, $1,000 in fines, and a $100 assessment. 

Abu-Shawish served the full sentence.

We vacated Abu-Shawish’s conviction. Abu-Shawish, 507 

F.3d at 558. We held that the government charged Abu-Shawish with the wrong crime because the federal program fraud 

statute requires that the defendant be an agent of the defrauded organization. Id. at 556. Because Abu-Shawish was 

not an agent of the City of Milwaukee, and because the indictment did not indicate that Abu-Shawish defrauded his own 

non-profit, he could not be charged under the federal program fraud statute. See id. at 558. Our opinion went on to say 

that “the indictment properly alleged and the evidence was 

sufficient to show that Abu-Shawish defrauded the City of 

Milwaukee.” Id. We noted that the government likely could 

have charged Abu-Shawish with mail or wire fraud. Id.

C. Second Trial

On remand, the district court dismissed the indictment for 

federal program fraud. A grand jury indicted Abu-Shawish 

again—this time as a principal under 18 U.S.C. § 2 on charges 

of mail fraud (18 U.S.C. § 1341) and transporting, in foreign 

commerce, funds obtained by fraud (18 U.S.C. § 2314). The 

case went to trial in 2008. This time the jury found Abu-Shawish not guilty. 
4 No. 17-1283

D. Certificate of Innocence Filings

In 2014, Abu-Shawish filed a complaint against the United 

States in the Court of Federal Claims pursuant to 28 U.S.C. 

§ 1495 and § 2513 seeking damages for unjust conviction and 

imprisonment. Abu-Shawish v. United States, 120 Fed. Cl. 812, 

812 (2015). Abu-Shawish filed that complaint after unsuccessfully suing the government and individual defendants for 

malicious prosecution and other torts. See Abu-Shawish v. 

United States, 546 F. App’x 576 (7th Cir. 2013). The Court of 

Federal Claims dismissed without prejudice for lack of jurisdiction because Abu-Shawish had not yet obtained a certificate of innocence, which § 2513 requires him to seek from the 

court where he was convicted. Abu-Shawish, 120 Fed. Cl. at 

812, 814.

In November 2015, Abu-Shawish went back to the district 

court in Wisconsin and filed a pro se petition for a certificate 

of innocence.1 The petition alleges that this court vacated the 

conviction on the federal program fraud charge, that the jury 

acquitted Abu-Shawish on the charges of mail fraud and 

transporting stolen funds in foreign commerce in the second 

trial, and that this acquittal proves Abu-Shawish “was and 

still is innocent of the charged offenses and of any fraud.” After more than three months with no docket activity, AbuShawish filed a motion to expedite a decision on his petition. 

The government never responded to the original petition or 

 1 The government does not argue that Abu-Shawish’s petition is timebarred. Instead, the government’s position, which it explained at oral argument, is that the statute of limitations for a damages claim against the 

government starts running when the petitioner obtains the certificate of 

innocence.
No. 17-1283 5

to the motion to expedite. The district court dismissed the petition in January 2017. Abu-Shawish appealed, and we recruited counsel, who have been of great assistance to the court 

and their client. 

II. Analysis

It is difficult to prove actual innocence, and proceedings 

like this one are rare. See Pulungan v. United States, 722 F.3d 

983 (7th Cir. 2013) (reversing grant of certificate; reversal of 

conviction was not sufficient to show actual innocence); Engel 

v. Buchan, 710 F.3d 698, 707 (7th Cir. 2013) (federal unjust conviction statutes do not apply to convictions under state law); 

Betts v. United States, 10 F.3d 1278 (7th Cir. 1993) (ordering 

grant of petition). Those cases and decisions by other courts 

explain that the federal statutes set a high bar for obtaining a 

certificate of innocence. Because of the scant precedent on this 

issue, we begin with a review of the statutes and their history.

A. Current Statutes

Read together, two statutes give people who have been 

unjustly convicted and imprisoned for a federal crime a damages remedy against the United States. The first gives the 

Court of Federal Claims jurisdiction over “any claim for damages by any person unjustly convicted of an offense against 

the United States and imprisoned.” 28 U.S.C. § 1495. The second establishes what a petitioner must prove and how and 

where a petitioner must prove it to establish the damages claim. 28 U.S.C. § 2513.2 Section 2513(a) includes two 

 2 Section 2513(a) provides, in full:

(a) Any person suing under section 1495 of this title must 

allege and prove that:
6 No. 17-1283

paragraphs that impose distinct requirements for what a petitioner must allege and prove: 

First, the petitioner must establish that the record of the court setting aside or reversing his 

conviction demonstrates that the court did so on 

the ground that he is not guilty of the offense for 

which he was convicted. Second, the petitioner 

must prove that he did not commit any of the 

acts charged, or that those acts or related acts 

constituted no crime against the United States, 

or any State, Territory or the District of Columbia. Third, the petitioner must demonstrate that 

he did not by misconduct or neglect cause or 

bring about his own prosecution.

United States v. Mills, 773 F.3d 563, 566 (4th Cir. 2014), citing 

United States v. Graham, 608 F.3d 164 (4th Cir. 2010).

 

(1) His conviction has been reversed or set aside 

on the ground that he is not guilty of the offense 

of which he was convicted, or on new trial or rehearing he was found not guilty 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 

of innocence and unjust conviction and

(2) He did not commit any of the acts charged or 

his acts, deeds, or omissions in connection with 

such charge constituted no offense against the 

United States, or any State, Territory or the District 

of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.
No. 17-1283 7

The petitioner proves those requirements to the Court of 

Claims by submitting a certificate of innocence from the court 

of conviction. See § 2513(b). To obtain that certificate in the

court of conviction, the petitioner bears the “burdens of production and persuasion.” Pulungan, 722 F.3d at 986; see also 

Graham, 608 F.3d at 172 (noting that § 2513 “imposes a rigorous burden”). Section 1495 waives the government’s sovereign immunity, e.g., Betts, 10 F.3d at 1282, so courts construe 

§ 2513 strictly, e.g., Graham, 608 F.3d at 172 (collecting cases). 

The few opinions on this subject highlight the result of that 

strict construction: out of twelve published appellate opinions 

with material treatment of § 2513, our opinion in Betts is the 

only one to reverse and remand with instructions to grant the 

petition.3

B. Statutory History

The story that led to these federal unjust conviction statutes supports this stringent standard. The story begins with 

front-page news in 1911: a wrongful conviction following a 

labor riot in one of Andrew Carnegie’s steel mills. The cast of 

characters includes not just Andrew Carnegie but also 

 3 See Hernandez v. United States, 888 F.3d 219 (5th Cir. 2018); United

States v. Mills, 773 F.3d 563 (4th Cir. 2014); United States v. Grubbs, 773 F.3d 

726 (6th Cir. 2014); Pulungan v. United States, 722 F.3d 983 (7th Cir. 2013); 

United States v. Graham, 608 F.3d 164 (4th Cir. 2010); Diamen v. United States, 

604 F.3d 653 (D.C. Cir. 2010); United States v. Racing Services, Inc., 580 F.3d 

710 (8th Cir. 2009); Betts v. United States, 10 F.3d 1278 (7th Cir. 1993); Osborn 

v. United States, 322 F.2d 835 (5th Cir. 1963); Rigsbee v. United States, 204 

F.2d 70 (D.C. Cir. 1953); United States v. Brunner, 200 F.2d 276 (6th Cir. 

1952); see also Crooker v. United States, 828 F.3d 1357 (Fed. Cir. 2016) (reading § 2513 together with sentencing credit statute, 18 U.S.C. § 3585, and 

reversing damages award because time petitioner served for reversed conviction was credited to sentence on other, remaining conviction).
8 No. 17-1283

Charles Schwab, Dean Wigmore, and then-Professor Felix 

Frankfurter. Our discussion draws from the comprehensive 

treatment of the legislative history in United States v. Keegan, 

71 F. Supp. 623 (S.D.N.Y. 1947).

Andrew Carnegie made the front page of the New York 

Times for doing what the Pennsylvania legislature refused to 

do. Carnegie Pensions Toth. Man Who Served Twenty Years for 

Crime He Did Not Commit, N.Y. Times, Aug. 2, 1911, at 1. The 

legislature refused to compensate Andy Toth, a former steelworker in one of Carnegie’s mills who was released from 

prison after serving twenty years of a life sentence for a murder he did not commit. Editorial, False Imprisonment, 17 Va. L. 

Reg. 406 (1911); Edwin M. Borchard, Convicting the Innocent

286 (1932). Carnegie arranged to pay Toth $40 a month for the 

rest of his life. Borchard, supra, at 291. 

Toth was one of three defendants convicted of murder for 

the beating of a furnace boss during a labor riot in one of Carnegie’s mills. Id. at 287–89. Convicted amidst a wave of antiHungarian prejudice following the riot, Toth was sentenced 

to be hanged. Id. at 289, 292. The governor commuted Toth’s 

death sentence to life imprisonment after Carnegie, Charles 

Schwab, and others lobbied on his behalf. Id. at 289. In 1911, 

when another man confessed to the murder on his deathbed, 

the brother of Toth’s lawyer pushed for a pardon. Id. at 290. 

Eventually, members of Congress introduced separate bills in 

the House and Senate in 1912 to compensate wrongly convicted prisoners like Toth, but it took more than 25 years for 

Congress to enact legislation.4

 4 The current actual-innocence statutes stem from a 1937 bill that became the first federal law to “indemnify the victims who suffer by reason 
No. 17-1283 9

The pair of statutes now codified as 28 U.S.C. § 1495 and 

§ 2513 began as four separate statutes. See Pub. L. No. 75-539, 

52 Stat. 438 (3d sess. 1938) (codified at 18 U.S.C. §§ 729–32 

(1940)). Congress consolidated and revised those statutes into 

their modern format and moved them into Title 28 in 1948. 

See Revision of Title 28, United States Code, H.R. Rep. No. 80-

308, at A195 (1947) (“Sections 729–732 of title 18, U. S. C., 1940 

ed., were consolidated and completely rewritten in order to 

clarify ambiguities which made the statute unworkable as enacted originally. Jurisdictional provisions of section 729 of title 18, U. S. C., 1940 ed., are incorporated in section 1495 of 

 

of mistakes in the criminal law.” Relief for Persons Erroneously Convicted, S. 

Rep. No. 75-202, at 1 (1937). The final sentence of the House Judiciary 

Committee’s report provides a succinct purpose: “If we indemnify the taking of property, we should indemnify injustice to human beings.” Relief 

for Erroneously Convicted Persons, H.R. Rep. No. 75-2299, at 4 (3d Sess. 

1938). 

The road to enactment was long. Legislators introduced separate bills 

in the House and Senate in 1912, but neither bill made it out of committee. 

S. 7675, 62d Cong. (3d Sess. 1912); H.R. 26748, 62d Cong. (3d Sess. 1912). 

Legislators tried again in 1935 by introducing a new Senate bill, S. 2155, 

74th Cong. (1935), that was reported out of committee, Relief for Erroneously Convicted Persons, S. Rep. No. 74-2339 (1936), but does not appear to 

have been calendared for a vote.

Edwin Borchard, then the Law Librarian of Congress, drafted the original 1912 Senate Bill and wrote an accompanying document (with an editorial by John Wigmore, then the dean of Northwestern’s Law School) urging Congress to act. Edwin M. Borchard, State Indemnity for Errors of Criminal Justice, S. Doc. No. 62-974 (3d Sess. 1912). Borchard’s document, apparently drawing from European indemnity statutes, referred to the Toth 

case as “still fresh in the public mind.” Id. at 5. Eventually, Borchard became a law professor and wrote a book digesting 65 innocence cases, including Toth’s. Edwin M. Borchard, Convicting the Innocent: Errors of Criminal Justice, at vii, 286–93 (1932).
10 No. 17-1283

this title. Changes were made in phraseology.”); see also Weiss 

v. United States, 95 F. Supp. 176, 178 (S.D.N.Y. 1951) (“It would 

therefore seem that the revision was for the purpose of clarity, 

and that no substantial change in the substantive law was intended.”). The only material change since then was a substantial increase of the damages cap in § 2513(e). Justice for All Act 

of 2004, Pub. L. No. 108-405, § 431, 118 Stat. 2260, 2293 (replacing $5,000 cap with caps of $100,000 per year of incarceration 

for plaintiffs sentenced to death and $50,000 per year of incarceration for all other plaintiffs). 

Like the district court here and every other circuit to consider the question, we read the statute’s distinction between 

acquittal and innocence as setting a high bar for petitioners. 

Pulungan, 722 F.3d at 985. The distinction between acquittal 

and innocence appeared early in the legislative history. The 

Attorney General made this distinction in his comment on the 

1935 bill, and that comment was reprinted in the report on the 

1937 bill: 

Ideal justice would seem to require that in the 

rare and unusual instances in which a person 

who has served the whole or part of a term of 

imprisonment, is later found to be entirely innocent of the crime of which he was convicted, 

should receive some redress. On the other hand, 

reversals in criminal cases are more frequently 

had on the ground of insufficiency of proof or 

on the question as to whether the facts charged 

and proven constituted an offense under some 

statute. Consequently, it would be necessary to 
No. 17-1283 11

separate from the group of persons whose convictions have been reversed, those few who are 

in fact innocent of any offense whatever.

Relief for Persons Erroneously Convicted, S. Rep. No. 75-202, at 3

(1937); Relief for Erroneously Convicted Persons, S. Rep. No. 74-

2339, at 3 (1936); see also Graham, 608 F.3d at 171 n.2 (quoting 

Attorney General’s comment and concluding that legislative 

history “clearly demonstrates a congressional desire to limit 

the class of persons entitled to relief under the statute”). The 

House Judiciary Committee noted the same distinction in its 

report accompanying the bill out of committee. See H.R. Rep. 

No. 75-2299, at 2 (“In other words, the claimant must be innocent of the particular charge and of any other crime or offense 

that any of his acts might constitute. The claimant cannot be 

one whose innocence is based on technical or procedural 

grounds, such as lack of sufficient evidence, or a faulty indictment—such cases as where the indictment may fail on the 

original count, but claimant may yet be guilty of another or 

minor offense.”); see also Keegan, 71 F. Supp. at 635 (reprinting

House Report and concluding that “Congress never intended 

that every imprisoned person whose conviction had been set 

aside, should be indemnified by the Government”).

The House amendments also introduced the concept of 

the certificate of innocence and divided the judicial labor. Instead of litigating innocence in the Court of Claims (as in the 

Senate version of the bill), the petitioner would first establish 

innocence in the district court of conviction, obtain a certificate, and then present that certificate to the Court of Claims, 

which would decide only the question of damages. See H.R. 

Rep. No. 75-2299, at 1, 2.
12 No. 17-1283

C. Litigating and Adjudicating Actual Innocence Claims

This history informs our understanding of the procedural 

and substantive requirements for litigating actual innocence 

petitions. Procedurally, petitions for certificates of innocence 

are “civil in nature,” regardless of the docket designation. 

Betts, 10 F.3d at 1283, citing United States v. Brunner, 200 F.2d 

276, 279 (6th Cir. 1952), and McMurry v. United States, 15 M.J. 

1054, 1055 (N.M.C.M.R. 1983). Although district court clerks 

may file petitions under the existing criminal docket number 

(as in Betts) or as a separate, miscellaneous civil case (as in 

Pulungan), we think the better course is to file the petition under the existing criminal docket number with the conviction 

because a petition starts what is, in essence, a civil proceeding 

within the closed criminal case. In that respect, a petition is 

similar to a motion under Federal Rule of Criminal Procedure 

41(g) for the return of seized property, which we have called 

an “ancillary proceeding.” See United States v. Norwood, 602 

F.3d 830, 832 (7th Cir. 2010) (“The Rule 41(g) proceeding may 

be maintained as an ancillary proceeding in the district court 

even after the criminal proceeding ends.”), citing Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003), and United States v. 

White, 582 F.3d 787, 806 n.3 (7th Cir. 2009). As with a Rule 

41(g) motion, a petitioner for a certificate of innocence must 

pay a filing fee. Cf., e.g., United States v. Shaaban, 602 F.3d 877, 

879 (7th Cir. 2010) (per curiam) (noting that prisoner “could 

be ordered to pay the civil fees and would be subject to the 

Prison Litigation Reform Act [for Rule 41(g) motion] without 

making him jump through the hoop of filing another case”), 

citing United States v. Howell, 354 F.3d 693, 695 (7th Cir. 2004) 

(noting that Rule 41(g) motions are subject to “the usual procedural requirements for maintaining a federal civil suit, such 

as the payment of a filing fee”). If the court grants the petition, 
No. 17-1283 13

it should enter the certificate of innocence on the docket of the 

criminal case.

We have said that whether “a petitioner is entitled to a certificate of innocence ... is a question committed to the sound 

discretion of the district court” and that appellate review is 

for an abuse of that discretion. Betts, 10 F.3d at 1283, citing 

Rigsbee v. United States, 204 F.2d 70, 72 & n.2 (D.C. Cir. 1953), 

Burgess v. United States, 20 Cl. Ct. 701, 704 (1990), and Keegan, 

71 F. Supp. at 635. That phrasing needs more explanation. Discretion does not mean that a district judge can exercise “discretion” to deny a certificate even if a petitioner meets the statutory burden of proof. That would be a legal error—an abuse 

of discretion by definition. See Betts, 10 F.3d at 1283, 1286 (noting abuse-of-discretion and clear-error standards and reversing clearly erroneous finding that petitioner “brought about 

his own prosecution through neglect or misconduct”); see 

also In re Veluchamy, 879 F.3d 808, 823 (7th Cir. 2018) (district 

court “abuses its discretion when it commits an error of law 

or makes a clearly erroneous finding of fact”), quoting Kress 

v. CCA of Tennessee, LLC, 694 F.3d 890, 892 (7th Cir. 2012). In 

this line of cases, the references to “discretion” have meant

that the district judge may not rely solely on the judgment of 

acquittal but must exercise judgment in the process of hearing 

evidence and making a finding on whether or not a defendant 

has satisfied the burden of proof to obtain the certificate. See 

Keegan, 71 F. Supp. at 636 (“Unless the law contemplated the 

exercise of discretion on the part of the court, there would be 

no point in requiring the certificate of the court. If no discretion were contemplated, and only a ministerial act was required, the clerk could certify the final finding of not guilty, 

just as well as the court.”). 
14 No. 17-1283

The petitioner must receive a fair opportunity to be heard 

on the petition. Again, we find a helpful analogue with Rule 

41(g), where the district judge has procedural discretion. See 

United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007) (requirement that district court “‘must receive evidence on any 

factual issue necessary to decide the motion’ ... does not mean 

that a district court must conduct an evidentiary hearing to 

resolve all factual disputes”) (citation omitted and ellipsis 

added), quoting Fed. R. Crim. P. 41(g). The certificate-of-innocence statutes do not establish specific procedures for deciding a petition, so the details of briefing and any motions practice or evidentiary hearing are sensibly left, of course, to the 

district judge’s discretion. Cf. Rhein v. Coffman, 825 F.3d 823, 

827 (7th Cir. 2016) (analogizing to Rule 41(g) and noting that 

“courts have not established time limits for holding hearings 

and making decisions on motions to return firearms”).

For procedural issues, our review is for abuse of discretion. See Stevens v. United States, 530 F.3d 502, 506 (7th Cir. 

2008). It is also clear from the statutes that both the petitioner 

and the government must have an opportunity to introduce 

new evidence. Cf. Stevens, 500 F.3d at 628 (Rule 41(g) requires 

“that the district court receive evidence to resolve factual disputes”), citing United States v. Albinson, 356 F.3d 278, 281–82 

(3d Cir. 2004). Ultimately, the district judge must take a fresh 

look at all the relevant evidence and make a “determination 

independent of the outcome of the trial or appeal,” Betts, 10 

F.3d at 1283; see also Stevens, 500 F.3d at 628 (under Rule 41(g), 

“any factual determinations supporting the court’s decision 

must be based on evidence received”). The district judge is 

free to draw on his or her memory of the trial, but those mem-
No. 17-1283 15

ories need to be explained in findings. And meaningful appellate review requires a transcript of any trials, hearings, or 

other proceedings on which those memories are based. 

D. Abu-Shawish’s Case

The district court has considerable discretion in managing 

a case like this toward a fair disposition, but Abu-Shawish received no meaningful opportunity to be heard. His petition 

was dismissed without any response from the government, 

without any briefing or hearing, and by imposing a pleading 

standard not compatible with civil proceedings and without 

an opportunity to try to cure the pleading defects identified 

by the district court.

The bar for obtaining a certificate of innocence is high, but 

the district court applied too stringent a standard to AbuShawish’s pro se pleading. As the government acknowledges, 

Federal Rule of Civil Procedure 8 provides the applicable 

standard for this civil proceeding. It requires only “a short 

and plain statement” of a claim. Fed. R. Civ. P. 8(a)(2). And 

because Abu-Shawish was proceeding pro se, the district court 

should have construed his petition liberally. See, e.g., Terry v. 

Spencer, 888 F.3d 890, 893 (7th Cir. 2018) (reversing dismissal 

of pro se prisoner’s claims because “pro se filings should be 

read liberally”), citing Obriecht v. Raemisch, 517 F.3d 489, 493 

(7th Cir. 2008); Otis v. Demarasse, 886 F.3d 639, 644 (7th Cir. 

2018) (“The Supreme Court has cautioned that any ‘document 

filed pro se is to be liberally construed.’”), quoting Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (per curiam). 

The district court set the bar too high by applying what 

seems to have been a heightened evidentiary standard at the 
16 No. 17-1283

pleading stage. It faulted Abu-Shawish for not providing “evidence of his actual innocence,” Abu-Shawish, 228 F. Supp. 3d 

at 883, citing Pulungan, 722 F.3d at 986, and for “conclusory 

allegations, unsupported by citations to the record or independent evidentiary submissions,” id. at 883 n.2. But under 

Rule 8 “evidence is not required at the pleading stage,” Carlson v. CSX Transportation, Inc., 758 F.3d 819, 827 (7th Cir. 2014) 

(reversing dismissal because district court “applied too demanding a standard” by requiring evidence at pleading 

stage), and neither the district court nor the government identified a source for imposing a different standard on a petition 

for a certificate of innocence under § 2513.

We do not see a defect in Abu-Shawish’s petition. He alleged what was required by § 2513(a), and even a little more: 

that his conviction had been reversed on the ground that he 

was not guilty of the offense of conviction, that he was innocent of any charged offenses and fraud, that he was acquitted 

in the second trial, and that he did not, by his own conduct, 

voluntarily cause or bring about his conviction. He did not 

spell out the evidence supporting his petition, but that level 

of detail ordinarily comes later in a civil proceeding.

To the extent the district court found, correctly or not, that 

Abu-Shawish’s petition fell short of what was required, the 

court should have given him leave to replead. The usual 

standard in civil cases is to allow defective pleadings to be 

corrected, especially in early stages, at least where amendment would not be futile. See, e.g., Childress v. Walker, 787 F.3d 

433, 441 (7th Cir. 2015) (reversing denial of leave to amend

and noting that district courts should grant leave freely under 

Rule 15(a)(2) and that “denials are disfavored” but permitted 

in certain circumstances), quoting Bausch v. Stryker Corp., 630 
No. 17-1283 17

F.3d 546, 562 (7th Cir. 2010); Runnion v. Girl Scouts of Greater 

Chicago & Northwest Indiana, 786 F.3d 510, 519 (7th Cir. 2015); 

Barry Aviation Inc. v. Land O’Lakes Municipal Airport Comm’n, 

377 F.3d 682, 687 & n.3 (7th Cir. 2004) (collecting cases).

That is the ordinary practice in an ordinary civil case 

where the party is represented by counsel. When the party is 

pro se, the liberal approach to amending pleadings applies 

with even more force. E.g., Erickson v. Pardus, 551 U.S. 89, 94 

(2007) (summarily vacating dismissal), citing Estelle v. Gamble, 

429 U.S. 97, 106 (1976); Perez v. Fenoglio, 792 F.3d 768, 776 (7th 

Cir. 2015) (reversing dismissal); Luevano v. Wal-Mart Stores, 

Inc., 722 F.3d 1014, 1024 (7th Cir. 2013) (applying Rule 15(a), 

reversing dismissal, and collecting cases for proposition that 

“plaintiffs enjoy leave to amend whenever ‘justice so requires’

and, as a matter of course, almost always get an opportunity 

to amend their complaints at least once”). And as we explained in Runnion, “The liberal standard for amending under 

Rule 15(a)(2) is especially important where the law is uncertain.” 786 F.3d at 520. Cases like this one are so rare that the 

pleading standards for a petition for a certificate of innocence 

surely qualify as debatable. While truly futile amendments 

need not be allowed, a district judge who believes a pleading 

has a fatal but possibly curable flaw needs to identify it and 

give the pleading party a fair opportunity to try to correct it. 

Id., citing Barry Aviation, 377 F.3d at 687.

On remand, the district court must allow Abu-Shawish to 

proceed on his petition. We see no need for devoting further 

time to pleading matters. Instead, the court must give the 

United States an opportunity to respond to the petition and 

then prepare the case for decision. The court will need to 

make the independent determination of guilt or innocence 
18 No. 17-1283

that we required in Betts. To make that independent determination, the district court must give both sides the opportunity 

to submit evidence. See, e.g., Rigsbee, 204 F.2d at 71 (district 

court’s order noted that court held oral argument on petition); 

Weiss, 95 F. Supp. at 179 (deciding petition based on oral argument, briefing, and affidavits from both parties); Keegan, 71 

F. Supp. at 637–38 (noting that district court may rely primarily on trial record but that other relevant facts may be submitted by affidavit and oral testimony). If Abu-Shawish declines 

to submit additional evidence—by affidavit or otherwise—

the district court could properly resolve the petition based on 

the trial records alone. See United States v. Grubbs, 773 F.3d 

726, 733 (6th Cir. 2014) (resolving petition on trial evidence 

alone because petitioner “elected not to add anything to the 

record”); Brunner, 200 F.2d at 279 (resolving petition based on 

trial record and affidavit from government submitted in proceedings on certificate of innocence because petitioner “produced no other evidence in support of his application”).

On the merits, Abu-Shawish has the burden to prove by a 

preponderance of the evidence that he is actually innocent. As 

the district judge and both sides understand, that is more difficult than proving that Abu-Shawish was found not guilty or 

that his conviction was reversed. See Grubbs, 773 F.3d at 733 

(preponderance standard applies to certificate of innocence 

proceedings). Abu-Shawish satisfies the first requirement of 

§ 2513(a) because his conviction was reversed on the merits, 

see Pulungan, 722 F.3d at 984 (§ 2513(a)(1) satisfied by reversal 

of conviction because of insufficient evidence), and the government is not arguing that he fails the third requirement, not 

having caused his conviction. Abu-Shawish’s claim will succeed or fail based on the second requirement—whether his 

actions constituted any crime under federal or state law.
No. 17-1283 19

The district court wrote that our opinion reversing AbuShawish’s conviction “forecloses” Abu-Shawish’s argument 

that his conduct was not criminal. Abu-Shawish, 228 F. Supp. 

3d at 882. That is not correct. Whether the evidence was sufficient to support a finding of guilt is not the test for a certificate 

of innocence. The court must decide whether the petitioner 

has shown that he did not—in fact—commit a crime. Statements about the sufficiency of evidence do not offer a shortcut 

around that question. See Weiss, 95 F. Supp. at 179–80 (declining to defer to dictum in Supreme Court opinion that petitioner was not guilty of offense other than offense of conviction); Keegan, 71 F. Supp. at 639 (same); see also United States 

v. Racing Services, Inc., 580 F.3d 710, 713–14 (8th Cir. 2009) (affirming district court’s denial of certificate even though appellate opinion reversing conviction doubted, in dictum, that 

conduct violated state law).

On remand, after giving Abu-Shawish an opportunity to 

be heard and fully considering his petition, the district court 

will need to decide whether Abu-Shawish had the requisite 

intent—either for federal mail or wire fraud or for a similar 

state crime. The district court also wrote that it was “quite 

likely that Abu-Shawish could be found to have committed 

fraud by the preponderance standard applicable to the instant 

petition.” Abu-Shawish, 228 F. Supp. 3d at 883. That finding is 

not sufficient, even after a fair opportunity to be heard. The 

statute does not speak in terms of probabilities about jury trials or the sufficiency of evidence to convict. 

The district court also wrote that “it cannot be said that 

Abu-Shawish’s ‘conduct ... did not constitute a crime.’” Id., 

quoting Betts, 10 F.3d at 1284. That statement addresses the 

ultimate issue in this case, but it came before Abu-Shawish 
20 No. 17-1283

had a fair opportunity to be heard on his petition. The district 

court based that statement on our reversal of Abu-Shawish’s 

conviction, the evidence presented at the first trial, and AbuShawish’s second trial, without giving Abu-Shawish an opportunity to present additional evidence. See 228 F. Supp. 3d 

at 882–83. Also, the district court’s review of the second trial 

was necessarily limited because the transcript did not exist at 

the time of the court’s order. We understand the district 

court’s skepticism, but Abu-Shawish is entitled to a fair opportunity to be heard. When the court decides the case on the 

merits, it will need to explain its ultimate decision with reviewable findings of fact under Rule 52 and will need to make 

the independent determination Betts requires. 

The dismissal of Abu-Shawish’s petition is VACATED, 

and the case is REMANDED for proceedings consistent with 

this opinion.