OR\G\NA\.

In the United States Court of Federal Claims

No. 14-75C
(Filed October 1, 2014)
NOT FOR PUBLICATION 
icic*icic***icicicicicic*icic* 
U.S.COU
FEDERAL§LTA?).FQ

RONALD L. WHITWORTH, JR.,
Plaintiff,
v.

THE UNITED STATES,

Defendant.

ic
k
ic
ic
ic
ic
k
ic
ic
k
ic
ic
ic

*icicicicicic>%>\‘*icicic*>\'*ic

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Pending before the Court is defendant’s motion to dismiss plaintiffs
complaint for lack of subject-matter jurisdiction under Rule 12(b)(1) of the Rules of
the United States Court of Federal Claims (RCFC).l For the reasons set forth
below, the Court finds that it lacks jurisdiction over plaintiffs claims. Defendant’s
motion is GRANTED.

I. BACKGROUND

Plaintiff filed his complaint in this court on January 27, 2014. Compl.
Plaintiff alleges that he was unjustly convicted and imprisoned and that he was
forced to accept a plea bargain agreement that the government later breached by
seeking a longer sentence than called for by the plea agreement. Id. 1[1] 1~17, 37-
41, 90-101. The relevant facts have been alleged as follows.

1 The motion also identifies RCFC 12(b)(6) as, presumably, an alternative basis for
dismissal. Since that rule is not substantially discussed in the motion, the Court
will treat its invocation as a typographical error.

Plaintiff was arrested in September of 2008 and indicted on three charges,
including a l\/lann Act violation for transporting a minor in interstate commerce
with intent to engage in sexual activity. Compl. 1111 13-16. Assigned two attorneys
by the federal district court, plaintiff alleges he expected to take his case to trial,
but his appointed counsel, without revealing their intentions to him, never prepared
for trial as they fully expected to seek a plea deal. Id. 1111 19-22. Plaintiff alleges
that he discovered his attorneys’ unwillingness to try his case just ten days before
his scheduled trial date. One of plaintiffs attorneys told him that while his counsel
was unprepared to go to trial, a plea deal had been proffered by the Assistant U.S.
Attorney. Id. 11 20. Still desirous of taking his case to trial, plaintiff endeavored to
obtain a continuance from the magistrate judge, which was denied. Id. 1111 19-23.
As a result, plaintiff attempted to prepare for his trial without the help of counsel
over the weekend before his September 21, 2009 trial date. Due to time constraints,
plaintiff could not prepare an adequate defense. Id. 1111 23-26. On the day of his
scheduled trial, therefore, plaintiff asked his court-appointed counsel to resume as
his attorneys. Id. 11 28. Upon resuming their duties, both attorneys again refused
to try his case; however, they did obtain a proposed plea agreement from the state
and urged plaintiff to accept. Id. 1111 27-30.

Given plaintiffs inability to represent himself and facing the possibility of life
in prison without parole if convicted on all three counts pending against him,
plaintiff signed the plea agreement that the state tendered on September 21, 2009.
Id. 11 33. The plea agreement provided for dismissal of the first two counts in
exchange for plaintiffs agreement to plead guilty to violating the third count ---
transporting his daughter across state lines into Georgia for illicit purposes, a
violation of the Mann Act. Def.’s Mot. to Dismiss Pl.’s Compl. (Def.’s Mot.), App. at
A.1-A.3 (Def.’s App.).z But the plea agreement signed by plaintiff and the United
States contained contradictory language stemming from what the government
contends was a typographical error. On the one hand, the plea agreement indicated

2 A contract referenced in a complaint is incorporated into it for purposes of Rule
12(b) motions. "[l]t is well established that, in addition to the complaint itself and
attached exhibits, the court ‘must consider . . . documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice."’
Bristol Bay Area Health Corp. v. United States, 110 Fed. Cl. 251, 262 (2013)
(quoting Tellabs, Inc. u. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
"l\/loreover, ‘[e]ven where a document is not incorporated by reference, the court may
nevertheless consider it where the complaint relies heavily upon its terms and
effect, which renders the document integral to the complaint.”’ Id. (quoting
Mangiafico 1). Blumenthol, 471 F.3d 391, 398 (Zd Cir. 2006)); see also Perry 1). New
Englond Bus. Serv., Inc., 347 F.3d 343, 345 n.2 (1st Cir. 2003) ("Where . . . a
complaint’s factual allegations are expressly linked to  and admittedly dependent
upon  a document (the authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can review it in deciding a
motion to dismiss under [Rule 12(b)]." (internal quotation marks omitted)).

_2-

that "the government and the defendant stipulate that a sentence of 20 years is the
disposition of this case" and that "the recommendation for 20 years imprisonment
BINDS THE COURT ONCE THE COURT ACCEPTS THE PLEA AGREEMENT."
Def.’s App. at A.4, A.7 (emphasis omitted). On the other hand, the plea stated that
"the Parties fully and completely understand and agree that it is the Court’s duty to
impose sentence upon the defendant and that any sentence recommended by the
Parties, other than the 60 month (5 year) term of imprisonment, is NOT BINDING
UPON THE COURT. . ." Id. at A.7-A.8 (emphasis omitted).

At plaintiffs sentencing hearing, the Assistant U.S. Attorney asked the court
to sentence plaintiff to twenty years in prison. Compl. 11 32. Though plaintiff
objected on the grounds that he expected a five-year sentence based on the language
of his binding plea agreement, the court sentenced plaintiff to the twenty-year term
requested by the prosecution. Id. 11 32-33. During the sentencing colloquy, the
court "explained that the plea agreement called for a 20-year sentence, that split
sentences are illegal under Federal law, and that a five-year sentence was
unavailable because there is a ten year mandatory minimum." Def.’s l\/lot. at 4
(citing Def.’s App. at A.20~A.21).3 Plaintiff stated that he understood that the plea
agreement provided for a twenty-year sentence and that he did not wish to
withdraw his plea. Id. at 5 (citing Def.’s App. at A.22, A.24-A.28).

Plaintiff alleges that even though he instructed his counsel to appeal the
twenty-year sentence immediately, his attorney failed to comply. Compl. 11 34. As a
result, plaintiff mailed a notice of appeal to the district court as soon as he arrived
at his first designated prison. Id. 11 35. The Eleventh Circuit dismissed plaintiffs
appeal for untimeliness and, subsequently, denied both a panel rehearing and a
rehearing en banc. Id. 1111 36-37.

On April 12, 2011, plaintiff filed a "Motion To Vacate, Set Aside, or Correct

An Illegal Sentence" pursuant to 28 U.S.C. § 2255 in the district court. Compl. 11 39.

Both parties moved for summary judgment on the plaintiffs motion. Having not
received a ruling on his motion for summary judgment six months later, plaintiff
filed a motion to settle matters pending before the court on December 27 , 2011. Id.
11 43. On January 3, 2012, the district court denied plaintiffs motion for summary
judgment without prejudice. Iol. Numerous motions and appeals followed, id.

1111 43-96, including a civil rights complaint against the local sheriffs who, plaintiff
alleged, "severely violated his constitutional rights," as well as against the "federal
actors who were complicit in the violation of his well established constitutional
rights," id. 11 48. Eventually, the magistrate judge issued a Report and

3 When jurisdiction is challenged, evidence outside the complaint may be
considered. See Land v. Dollar, 330 U.S. 731, 735 & n.4 (1947); KVOS, Inc. 1).
Associated Press, 299 U.S. 269, 278 (1936),' Moyer u. United States, 190 F.3d 1314,
1318 (Fed. Cir. 1999); Forest Glen Props., LLC u. Uniteol States, 79 Fed. Cl. 669,
676-78 (2007).

_3_

Recommendation denying plaintiff relief on all issues related to the plaintiffs
section 2255 motion. Id. 1[ '74. The district court adopted the Report and

Recommendation in its entirety. Id. 11 75.

On June 13, 2013, plaintiff filed an application for a certificate of
appealability with the district court as well as his notice of appeal. Compl. 11 76.
The application alleged forty-one pages worth of violations of plaintiffs
constitutional rights in the original case. Id. The district court denied plaintiffs
application. Id. Plaintiff then filed his application for a certificate of appealability
to the Eleventh Circuit. Id. 11 '78. This application, too, was denied on October 11,
2013, id. 11 8(), and a reconsideration motion was denied on December 5, 2013, id.

11 85.

Finally, plaintiff petitioned the Supreme Court for certiorari and has filed an
application to Justice Thomas to review and correct the alleged abuse of discretion
by the Eleventh Circuit regarding plaintiffs application for a certificate of
appealability. Id. 11 89. Despite numerous appeals, plaintiff remains in prison, not
having demonstrated his innocence or government wrongdoing in any court.

II. DISCUSSION

Plaintiff contends that his initial conviction and imprisonment in 2009 were
unjust and that his constitutional rights were violated both leading up to that
conviction and, subsequently, when he tried to challenge that conviction. Compl.

11 91. In addition, plaintiff asserts that the federal government breached his plea
agreement. Id. 11 95. Plaintiff seeks two forms of relief, alternatively, from this
court. The first form of relief sounds largely in plaintiffs alleged unjust conviction
and imprisonment claim. The second rests primarily on his alleged breach of plea
agreement claim. To compensate for the damages arising out of his alleged unjust
conviction and imprisonment, plaintiff requests $20 million. Id. 11 98. Plaintiff also
seeks injunctive relief from his incarceration. Id. Alternatively, plaintiff asks the
Court to order specific performance of the contract between himself and the United
States, which, he argues, provides for a five-year prison sentence that he has
already served. Id. 11 99. Specific performance, according to plaintiff, "would be
release from prison to a less restrictive form of custody" such as "Supervised
Release," "Home Confinement," or "Residential Re-entry Center placement." Id.

1 99. Specific performance, argues plaintiff, ought to be accompanied by dismissal
of the charges and the expungement of his criminal record, as well as a $5 million

award. Id. 11 101.

Defendant filed a motion to dismiss in lieu of an answer, which contains
three principle arguments. First, the government argues that this court does not
have jurisdiction over plaintiffs claim because we lack jurisdiction over claims for
unjust conviction and imprisonment where the defendant’s conviction has not been
reversed or set aside. Def.’s Mot. at 8-9 (citing Winston u. United States, 465 F.

_4_

App’x 960, 962 (Fed Cir. 2012)). Second, defendant asserts that this court lacks
jurisdiction to review the decisions or actions of another court, at the federal district
level or otherwise. Id. Finally, defendant argues that the Tucker Act does not
confer on this court jurisdiction over breach of plea agreement claims absent an
express promise to subject the United States to monetary liability. Id. at 12-13
(citing Scmders 1). United States, 252 F.3d 1329, 1334-35 (Fed. Cir. 2001)).

A. Legal Standards

Under RCFC 12(b)(1), claims brought before this court must be dismissed
when it is shown that this court lacks jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, courts will
normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer 1).
Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326
(Fed. Cir. 2002) (requiring that, on a motion to dismiss for lack of subject-matter
jurisdiction, the court view "the alleged facts in the complaint as true, and if the
facts reveal any reasonable basis upon which the non-movant may prevail,
dismissal is inappropriate"); CBYDesign Builders v. United States, 105 Fed. Cl.

303, 325 (2012).

While a pro se plaintiffs filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside this court’s jurisdiction from being dismissed, see, e.g., Henke v. United
States, 60 F.Sd 795, 799 (Fed. Cir. 1995). The party invoking a court’s jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt v. G]\JAC, 298 U.S. 178, 189 (1936); Reynolds u. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); Rocovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991).

B. Analysis

l. Uniu,st Conviction and Imprisorz,rnent

This court undoubtedly has jurisdiction to award damages in unjust
imprisonment cases under 28 U.S.C. § 1495. However, in order to enjoy relief in
this court under section 1495, a plaintiff 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 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.

28 U.S.C. § 2513 (2()12); see also Bolduc 1). United States, 72 Fed. Cl. 18'7, 193
(2006).

Given that plaintiff remains incarcerated and has never demonstrated to any
court’s satisfaction that his conviction ought to be reversed or set aside due to his
lack of guilt (or, indeed, for any reason), or that he did not commit any of the acts
charged against him, this court lacks jurisdiction under RCFC 12(b)(1) to award
him damages. Our court can adjudicate only those claims brought under section
1495, in which a plaintiff alleges that his conviction was reversed or set aside due to
lack of guilt. Plaintiff has failed to allege this  in fact, his complaint makes clear
that he remains in prison  and thus has failed to allege facts necessary to bring
the matter of his conviction and imprisonment within our jurisdiction. See Winston

v. United States, 465 F. App’x 960, 961-62 (Fed. Cir. 2012).

2. Review of District Court Decision

This court also lacks subject-matter jurisdiction over plaintiffs complaint
regarding any alleged infirmities associated with his conviction. See Def.’s Mot. at
9-11. As the Federal Circuit explained in Joshua v. United States, 17 F.3d 378
(Fed. Cir. 1994), our court "does not have jurisdiction to review the decisions of
district courts . . . relating to proceedings before those courts." Id. at 380.
l\/loreover, “[t]his Court lacks jurisdiction to consider claims which amount to
collateral attacks on criminal convictions.” Perkins 1). United States, No. 13-023€,
2013 WL 3958350, at *3 (Fed. Cl. July 31, 2013). Finally, as this court’s
predecessor, the Court of Claims, held in Corter 1). United States, 228 Ct. Cl. 898
(1981), "[i]f plaintiff had valid constitutional defenses to his convictions on criminal
charges, he should have asserted them on appeal in the proper court. . . . [H]e
cannot here be heard to make a collateral attack on his convictions under the guise
of a claim for money damages." Id. at 900.

Insofar as plaintiffs requested relief would have our court overturn the
decisions of the Northern District of Alabama or the Eleventh Circuit, his complaint
amounts to a collateral attack that is beyond our jurisdiction. Accordingly, this
court lacks the power to decide the correct length of plaintiffs sentence under his
plea agreement; to dismiss the charges leveled against him and expunge his
criminal record; or to provide injunctive relief to remedy plaintiffs allegedly unjust
imprisonment, which he calls "the source of continuing injustice," Compl. 11 98.
Furthermore, this court is without authority to consider plaintiffs allegations of

constitutional violations associated with his conviction. These are matters for the
Eleventh Circuit and the Supreme Court, not this tribunal.

3. Breach of Plea Agreement

As the government correctly argues, this court has no jurisdiction over
plaintiffs claim for breach of the plea agreement. Def.’s l\/lot. at 12. Both Kania 1).
United States, 227 Ct. Cl. 458 (1981) and Som,ders u. United States, 252 F.3d 1329
(F`ed. Cir. 2001), make plain that this court lacks jurisdiction over alleged breaches
of plea agreements, with one minor exception. As the Court of Claims stated in
Kania, "the high function of enforcing and policing the criminal law is assigned to
the courts of general jurisdiction" rather than this court (or to its predecessor, the
Court of Claims). Kcmia, 227 Ct. Cl. at 465. l\/[oreover, the court noted that "[i]t is
particularly unreasonable to suppose that Congress in enacting the Tucker Act
intended for this court to intervene in the delicate and sensitive business of
conducting criminal trials." Id. at 269. The only exception to the Komia rule is that
this court can exercise jurisdiction over breach of plea agreement claims where the
agreement at issue contains "an unmistakable promise to subject the United States
to monetary liability." Sanders, 252 F.3d at 1336.

ln the instant case, plaintiffs breach of the plea agreement claim involves a
purely criminal matter that had been, as it ought to have been, enforced and policed
by the federal district court and the court of appeals. Plaintiff alleges no promise,
written or oral, on the part of the federal government to provide the plaintiff with
monetary compensation in the event of breach. For that matter, review of the plea
agreement reveals no such provision. See Def.’s App. at A.1-A.2. Under Sanders
and Kcmia, therefore, plaintiff cannot seek relief from this court for any breach of
this plea agreement. His request for the Court to interpret his plea agreement as
providing for a five-year sentence, to dismiss his charges and expunge his record,
and to award him $5 million, therefore, cannot be entertained

III. CONCLUSION

For the foregoing reasons, having considered defendant’s arguments for
dismissal, the Court GRANTS defendant’s motion to dismiss this case for lack of
subject-matter jurisdiction pursuant to RCFC 12(b)(1). The Clerk shall close the

C&S€.

IT IS SO ORDERED.

 

