                                        No. 16-1056C
                                 Filed: January 6, 2017                     FILED
     ****** ** * * ********* *                                            JAN - 6 2017
     COLLINS 0. NYABWA,      *
                             *                                          U.S. COURT OF
                                                                       FEDERAL CLAIMS
                  Plaintiff, *
                             *                            28 u.s.c. § 1495; 28 u.s.c.
    v.                       *                            § 2513; Motion to Dismiss; Pro
                             *                            Se.
     UNITED STATES,
                             *
                  Defendant. *
                             *
    * ****************** *
       Collins 0. Nyabwa, pro se, Corpus Christi, TX.


       Alexander 0. Canizares , Trial Attorney, Commercial Litigation Branch , Civil
Division , United States Department of Justice, Washington , D.C., for defendant. With him
was Robert E. Kirschman, Jr., Director, Commercial Litigation Branch , Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil Division, Department of Justice,
Washington, D.C.

                                        OPINION

HORN, J.

                                  FINDINGS OF FACT

       Pro se plaintiff, Collins Nyabwa, filed an apparent complaint titled "ACTUAL
INNOCENCE COMPENSATION CLAIM PURSUANT TO 28 U.S.C. §§ 1495 AND 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, for violating
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
detention and allegedly wrongful imprisonment for approximately sixteen months, plaintiff
seeks to recover $66,666.00 in monetary damages pursuant to 28 U.S.C. § 1495 (2012)
and 28 U.S.C. § 2513 (201 2). Plaintiff filed a motion to proceed in forma pauperis , which
this court granted .



1 Acco rding to plaintiff, prior to his conviction under Texas state law, he was a legal
resident of the United States.
       Plaintiff alleges that, on July 29, 2011, he was convicted by a Texas state court of
three counts "Improper Photography" under Texas state statute "§21.15(b)(1 ),"for which
he was sentenced to one year imprisonment. Plaintiff alleges that "upon completion of his
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. Plaintiff states that, in April 2013, "because of the Texas 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, plaintiff was 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 Parle Thompson, 442 S.W.3d 325, 351 (Tex.
Crim. App. 2014), the Texas Court of Criminal Appeals found the Texas state statute
under which Mr. Nyabwa had been convicted to be unconstitutional. On August 23, 2016,
approximately three years after plaintiff was released from the detention center, a United
States Judge of the Southern District of Texas 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 previous judgments of Texas trial court adjudging Collins 0. Nyabwa guilty
of improper photography under section 21.15(b) of the 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 violations were ONLY brought about by
his Texas State convictions and now that they have been formally VACATED, he is
'actually/factually' innocent of ANY 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 Court for the Southern District of Texas, 3 is that: on July

2The Order vacating plaintiff's three convictions was issued on August 23, 2016, two days
before plaintiff filed 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 of Texas, Southern District relating to
his allegedly improper sixteen-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. of Am., No. 16-1644 (S.D. Tex. June 6, 2016); Nyabwa v.
Unknown Jailers at CCA, No. 16-782 (S.D. Tex. Mar. 24, 2016); Nyabwa v. United States,
No. 16-783 (S.D. Tex. Mar. 23, 2016). Plaintiff also filed the following actions in the United
States District Court of Texas, Southern District relating to his allegedly improper sixteen-
                                               2
29, 2011, he was convicted under the Texas Penal Code and sentenced to one year state
imprisonment; following his release, he was held in an immigration detention center from
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 of the 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 pursuant to Rule 12(b)(1) and (b)(6) of the Rules of the United States Court of
Federal Claims (RCFC) (2016). Defendant argues that this court lacks subject matter
jurisdiction to consider Mr. Nyabwa's claims under 28 U.S.C. § 1495 because this statute
limits the court's jurisdiction to claims based upon wrongful convictions for Federal, not
state, crimes. Defendant also argues that a plaintiff seeking 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, that the conviction was set aside due to lack
of guilt.

                                       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 a pro se complaint be held to "less stringent standards than 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); Matthews v. 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 of the 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 Clark v. 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 May 23, 2016). Additionally, plaintiff indicates in his complaint that 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's Administrative Claim on February 22, 2016." Plaintiff attached a copy of
this claim to his complaint.

                                              3
Minehan 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 9 and Taylor v. United States, 303 F.3d 1357, 1359
(Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
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 meet jurisdictional 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 of subject matter jurisdiction, and RCFC 12(b)(6), for failure to state a claim for
which relief may be granted. The Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this
court as follows:

       The United States Court of Federal Claims shall have jurisdiction to render
       judgment upon any claim against the United States founded either upon the
       Constitution, or any Act of Congress or any regulation of an executive
       department, or upon any express or implied contract with the United States,
       or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with 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 bane denied
(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d
1310, 1314 (Fed. Cir. 1999).

      "Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
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

                                             4
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in
the United States Court of Federal Claims. The court wrote:

       The underlying monetary claims are of three types .... 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, directly or in effect, and seeks return of all or part of that sum."
       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
       Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) ....
       Third, the Court of Federal Claims has jurisdiction over those 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, either directly or in effect, require that the "particular provision
       of law relied upon grants the claimant, expressly or by implication, a right to
       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 regulation-
       does not create a cause of action 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 Brook v. 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 States v. White Mountain Apache Tribe, 537 U.S. at 472; 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 Tucker Act 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); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.

                                              5
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).

        When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. 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 of the factual allegations contained in the complaint." (citing Bell
All. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. 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 of jurisdiction starts with the complaint, which must be well-pleaded
 in that it must state the necessary elements of the plaintiff's claim, independent of any
 defense that may be interposed." Holley v. 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 plaintiff need only state in the complaint "a short and plain statement of the
grounds for the court's jurisdiction," and "a short and plain statement of the claim showing
that the 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
support a claim." Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also
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)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981)
("[C]onclusory allegations unsupported by any factual assertions will not withstand a
motion to dismiss."), affd, 460 U.S. 325 (1983). "A plaintiff's factual 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 Ashcroft v. Iqbal, "[a] pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' 550
U.S. at 555. Nor does a complaint suffice if it tenders '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).

       When construed liberally, plaintiff's complaint contends that he is entitled to receive
monetary damages pursuant to 28 U.S.C. § 1495 and 28 U.S.C. § 2513 because he is
"actually innocent" of the state law violations for which he was convicted and, therefore,
"actually innocent" of any violation of federal 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
July 2012 and November 2013. Defendant argues that plaintiff has failed to allege or show
that he has obtained a certificate of innocence from any court or that his actual innocence

                                              6
 has been established, as required by 28 U.S.C. §§ 2513 and 1495. Moreover, defendant
argues that plaintiff's conviction under the Texas Penal Code was not set aside due to a
finding of innocence. 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 pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1227(a), "does not
constitute an 'offense against the United States' for purposes of section 2513." According
to defendant, plaintiff's deportation proceedings do not qualify as a conviction of a 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 pursuant to 28 U.S.C. §§ 1495 and
2513 when a plaintiff's claim satisfies specified, 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 has jurisdiction to render judgment upon any claim for damages any person unjustly
convicted of an offense against the United States) (emphasis added); see also Machulas
v. United States, 621 F. App'x 629, 632 (Fed. Cir. 2015) (holding that the Court of Federal
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
monetary damages based on a claim of unjust conviction and imprisonment related to his
conviction under a Texas state statute, this court does not have jurisdiction to consider
such a claim.

       Plaintiff asserts that his complaint in this court alleging unjust imprisonment
pertains only to his detention by federal immigration officials pursuant to 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 have jurisdiction to render judgment 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 of title 28, "must be read in conjunction
with 28 U.S.C. § 2513." Humphrey v. 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 under Section 1495 must also meet the requirements of 28 U.S.C.
§ 2513(a)(1)."). The statute at 28 U.S.C. § 2513 states:
       (a) Any person suing under section 1495 of this title must allege and prove
           that:

                (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

                                             7
                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.
       (b) Proof of the requisite facts shall be by a certificate of the 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 of Federal Claims unless it contains recitals that the
           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 plaintiff suing under 28 U.S.C. § 1495, "must allege and prove" that "[h]is
conviction has been reversed or set aside on the ground that he is not guilty of the offense
of which he was convicted ... or that he has been pardoned upon the stated ground of
innocence and unjust conviction," and, that "[h]e did not commit any of the 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, but also that none of his acts related to the charged crime were other crimes.");
Carpenter v. United States, 118 Fed. Cl. 712, 713 (2014) ("Jurisdiction conferred by
Section 1495 is limited to a plaintiff who 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]hese jurisdictional requirements [of 28 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." Humphrey v. 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

                                              8
federal district court, is a prerequisite to the jurisdiction of the 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. District Judge
on 8/23/2016 VACATED his 3 Texas state convictions." Defendant argues that the
vacation of Mr. Nyabwa's conviction for reasons other than actual innocent is not sufficient
to confer jurisdiction 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, plaintiff relies solely on the Order of the United States District Court Judge which
 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 under section 21.15(b) of the Texas Penal Code, are VACATED."
 (emphasis in original). This Order was submitted by defendant to the court. Section 2513
 provides that "[p]roof of the requisite facts shall be by a certificate of the 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 of the 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 of the 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 by the 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
the jurisdictional requirements of 28 U.S.C. §§ 1495 and 2513, and plaintiff does not cite
to any other authority to invoke the jurisdiction of this 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 of jurisdiction to this court. The court also notes that plaintiff's detention
at the immigration facility between July 2013 and November 2013 was not improper
because the detention was based on plaintiff's criminal conviction, which was not vacated
until August 24, 2016, based on the finding of the Texas Court of Criminal Appeals that
the statute under which plaintiff was convicted was unconstitutional, which occurred
approximately one year after plaintiff was released from the immigration detention center
in November 2013.




                                               9
                                  CONCLUSION

       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
JUDGMENT consistent with this Order.



IT IS SO ORDERED.

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




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