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No. l4-310C

(Filed: October 31, 2014)  LE D

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0CT312014

BOBBY E. HAZEL, U.S. COURT OF
FEDERAL CLAIMS
Plaintiff,
V.

THE UNITED STATES OF AlV[ERICA,

Defendant.

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ORDER

 

Plaintiff asks this court for one hundred million dollars as damages for
his alleged unjust conviction and imprisonment under 28 U.S.C. § 1495.1 Mr.
Hazel was convicted by a jury in federal district court on May 19, 1993, for
ﬁrst degree murder and possession of a dangerous weapon by a prisoner. He
was sentenced to a life term of imprisonment. He has been pursuing his appeal
and various collateral attacks on his conviction ever since.

Defendant has moved to dismiss for lack of jurisdiction on the basis that
plaintiff has not alleged, nor could he, that his conviction has been set aside or
reversed on the grounds that he is not guilty as required by the statute and
subsequent case law. This is required to be in the form of a certiﬁcate of
innocence or an executive pardon. Defendant points out that plaintiff has
produced neither.

1 Plaintiff has also moved to proceed in forma pauperis. Due to our summary
disposition of the case and plaintiff’s pro se status, we grant the motion and
waive the ﬁling fee.

28 U.S.C. § 2513 lists the requirements for suit under section 1495:

(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 guilty of such offense, as appears from the record or
certiﬁcate of the court setting aside or reversing such
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 Untied States, or any
State, Territory or the District of Columbia, and he did
not by misconduct or neglect cause or bring about his
own persecution.

(b) Proof of the requisite facts shall be by certiﬁcate of the court
or pardon wherein such facts are allege to appear, and other
evidence thereof shall not be received.

(0) 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.

28 U.S.C. § 2513 (2014). The courts have long been consistent in applying
these two provisions together to require that the conditions of section 2513 be
met in order for this court to exercise jurisdiction. See, e. g. , Grayson v. United
States, 141 Ct. Cl. 866, 869-70 (1958); United States v. Racing Servs., Inc.,
580 F.3d 710, 711 (8th Cir. 2009); Neal v. United States, No. 915C, U.S.
Claims LEXIS 317 (Fed. Cl. Apr. 29, 2013).2 Additionally, this court has no

2 This court has on occasion dismissed cases under section 1495 for failure to
state a claim rather than lack of jurisdiction on the basis that jurisdiction
attaches when plaintiff identifies a money mandating source, such as 28 US .C.

2

independent authority to “re-examine in detail the facts surrounding a
conviction or imprisonment.” Humphrey v. United States, 52 Fed. Cl. 593,
597 (2002). This means that, in order for this court to exercise jurisdiction
over a case brought pursuant to 28 U.S.C. § 1495, plaintiff must have, at a
minimum, alleged that he possesses a certiﬁcate of innocence or pardon.

Plaintiff responds that he meets the requirements of section 2513
because he has “exhausted all recourse to the courts and that the time for any
court to exercise jurisdiction had expired” as is stated in subsection (c). 28
U.S.C. § 2513(0). That section, however, as it expressly begins, applies only
to certiﬁcates of pardon, and operates to further limit this court’s purview
under section 1495 by requiring that any pardon recite that it was granted after
the exhaustion of normal appellate recourse. It does not, as plaintiff urges,
provide an avenue around the requirement that a certiﬁcate of innocence or
pardon be produced in order to exercise jurisdiction under 28 U.S.C. § 1495.

Plaintiff did not provide, nor allege that he can provide, a certiﬁcate of
innocence or pardon. That being the case, we have no choice but to dismiss
the case for lack of jurisdiction pursuant to rule 12(b)(l). Accordingly,
defendant’s motion to dismiss is granted. Plaintiff’s motion to proceed in
forma pauperis is granted. The clerk of court is directed to dismiss the
complaint and enter judgment accordingly. No costs.

Judge

§ 1495. E.g., Sykes v. United States, 105 Fed. Cl. 231 (2012). We follow the
traditional approach of dismissal for want of jurisdiction because Congress
conditioned the exercise of jurisdiction under section 1495 upon the
requirements of section 2513.

