     Case: 17-50313   Document: 00514443915     Page: 1   Date Filed: 04/24/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                 No. 17-50313                         FILED
                                                                  April 24, 2018
                                                                 Lyle W. Cayce
MARIA HERNANDEZ,                                                      Clerk

             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee




                 Appeal from the United States District Court
                      for the Western District of Texas


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
HAYNES, Circuit Judge:
      Maria Hernandez was convicted of and imprisoned for various federal
crimes, only to have her conviction set aside ten years later for ineffective
assistance of counsel. Federal law permits certain classes of the “unjustly
convicted” to sue in the United States Court of Federal Claims for
compensation. See 28 U.S.C. § 1495. But to succeed in such a suit, a plaintiff
must first receive a certificate described in 28 U.S.C. § 2513 from the district
court that set aside the conviction.
      Hernandez sought such a certificate, which the district court denied. She
now appeals.    The only contested issue on appeal is whether Hernandez
satisfied one of the requirements of § 2513: that the plaintiff be (a) exonerated
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on the grounds that she is not guilty or (b) found not guilty after a new trial or
rehearing. Id. § 2513(a)(1). For the reasons set forth below, we AFFIRM.
                                 I.     Background
      Hernandez was convicted in a drug and money laundering conspiracy
case in 2004. The primary evidence connecting Hernandez to the conspiracy
was $125,000 sent from Robert Fansler, the head of the scheme, to “Maria
Pena” at the address 41721 Road 168, Orosi, California. That property was a
20-acre ranch which had two homes on it, each of which received mail at that
address. Hernandez had lived in one of the homes until 2000. Her sister-in-
law, who was named Maria Trinidad Pena Topete, lived in the other home.
The money was sent to the address in 2001, a year after Hernandez had left
the property. Yet, Hernandez’s attorney presented no evidence or argument
about the sister-in-law or that Hernandez had moved away. Hernandez was
convicted and sentenced to 204 months’ imprisonment.
      Hernandez filed a writ of habeas corpus under 28 U.S.C. § 2255 and
successfully had her conviction vacated.         The district court reviewing her
habeas petition concluded that Hernandez’s counsel was ineffective for not
presenting any evidence about the other Maria. The district court found that
“had the jury been presented with testimony clarifying that Maria Trinidad
[Pena] Topete was not Maria Hernandez, then a reasonable juror could have
come to the conclusion that the $125,000 sent to ‘Maria Pena’ was not intended
for Maria Hernandez.”       Because Hernandez’s counsel completely failed to
investigate    the   existence   of    the   other   Maria—or    do   any   pre-trial
investigation—the district court concluded the attorney “rendered deficient
representation.” The court also found prejudice given the importance of this
evidence.     All that was left of the Government’s case without the $125,000
evidence was that Hernandez “was at her home one day when individuals were
unloading marijuana nearby and that she (or someone named Maria) made two
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brief phone calls” to someone involved in the conspiracy. The court found that
there was “a probability of acquittal ‘sufficient to undermine confidence in the
outcome’ and that therefore Maria Hernandez’s defense was certainly
prejudiced by [her attorney’s] failure to investigate.”      The court vacated
Hernandez’s conviction and ordered her released pending a retrial.
      Instead of trying Hernandez again, the Government filed a motion to
dismiss her indictment. In its motion, it asserted that the “vast majority of the
evidence linking Ms. Hernandez to the charged conspiracy was the testimony
of cooperating co-conspirators,” and that three of those witnesses were no
longer able to testify. The district court granted the motion to dismiss, ending
the case.
       Following the dismissal, Hernandez sought compensation for wrongful
imprisonment through a Congressionally-approved program. Those “unjustly
convicted of an offense against the United States and imprisoned” are
permitted to seek damages from the United States government. 28 U.S.C.
§ 1495. Such damages suits must be filed in the United States Court of Federal
Claims.     Id.   To succeed on such a claim, a plaintiff must meet certain
requirements. 28 U.S.C. § 2513. The first requirement, which is the central
focus of this appeal, is that
              [her] conviction has been reversed or set aside on the
              ground that [she] is not guilty of the offense of which
              [she] was convicted, or on new trial or rehearing [she]
              was found not guilty of such offense, as appears from
              the record or certificate of the court setting aside or
              reversing such conviction.
Id. § 2513(a)(1). The second requirement is that the plaintiff must prove she
“did not commit any of the acts charged or [her] acts, deeds or omissions in
connection with such charge constituted no offense against the United States,”
and that she “did not by misconduct or neglect cause or bring about [her] own

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                                   No. 17-50313
prosecution.” Id. § 2513(a)(2). The statute peculiarly provides that “[p]roof of
the requisite facts shall be by a certificate of the court . . . wherein such facts
are alleged to appear, and other evidence thereof shall not be received.” Id.
§ 2513(b).
      Hernandez requested “an appropriate certificate” under § 2513 from the
district court that granted her habeas petition. The same judge who had
granted Hernandez’s habeas petition concluded that Hernandez’s conviction
“was not set aside on the grounds that she was not guilty; it was set aside
because of her counsel’s ineffective assistance and resulting prejudice.” The
court thus denied her a certificate because she failed to satisfy § 2513(a)(1)’s
requirements. Hernandez now appeals.
                          II.    Standard of Review
      The parties disagree about the appropriate standard of review. We have
never decided the standard of review for denial of a certificate under 28 U.S.C.
§ 2513. Other courts have reviewed such denials for an abuse of discretion.
See United States v. Graham, 608 F.3d 164, 172 (4th Cir. 2010); United States
v. Racing Servs., Inc., 580 F.3d 710, 711–12 (8th Cir. 2009); Betts v. United
States, 10 F.3d 1278, 1283 (7th Cir. 1993); Rigsbee v. United States, 204 F.2d
70, 72–73 & n.3 (D.C. Cir. 1953). We need not decide the standard of review
that applies to this case because, even if we apply the least deferential
standard—de novo review—we still find no error.
                                III.   Discussion
      Hernandez contends that she has satisfied § 2513(a)(1)’s requirement
that her “conviction has been reversed or set aside on the ground that [she] is
not guilty of the offense of which [she] was convicted, or on new trial or
rehearing [she] was found not guilty of such offense.” Hernandez believes she
satisfied the statute’s requirements through the hearing on her petition for
writ of habeas corpus. We disagree.
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                                  No. 17-50313
      To satisfy § 2513 by relying on her habeas proceedings, Hernandez must
show that the district court vacated her conviction because she was not guilty—
not just that the court discussed her innocence, or even mentioned that it
thought she was not guilty. The statute’s text makes that clear, and our case
law supports that reading. The text connects the action the court took—“set
aside”—with a particular finding about the prisoner—“not guilty.” To link the
court’s action with the finding, Congress used the phrase “on the ground that,”
which means the “justification” for setting aside the conviction must be that
the defendant was “not guilty.” See Ground, OXFORD ENGLISH DICTIONARY (2d
ed. 1989) (defining the phrase “on the ground of” to mean “by reason of (some
circumstance alleged in justification of a procedure)); see also 4 OXFORD
ENGLISH DICTIONARY 450 (1933). In our only extended treatment of § 2513,
Osborn v. United States, we concluded that § 2513(a)(1) was not satisfied when
a petitioner’s conviction was set aside for lack of jurisdiction by the trial court.
322 F.2d 835, 840–41 (5th Cir. 1963). Rather than a “determination that ‘[the
petitioner was] not guilty of the offense of which he was convicted,’” the order
setting aside his conviction was “a procedural decision.” Id. at 841.
      Hernandez’s conviction was similarly set aside on procedural grounds,
and she thus fails to satisfy § 2513(a)(1). As the district court concluded, her
conviction “was set aside because of her counsel’s ineffective assistance and
resulting prejudice,” not because she was “not guilty.” Though ineffective
assistance claims analyze whether the jury would have convicted the
defendant, the standard applied—“a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt”—is
lower than that to be found “not guilty.” See Hoffman v. Cain, 752 F.3d 430,
440 (5th Cir. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 695
(1984)). An ineffective assistance claim is about the constitutional right to
effective assistance of counsel in support of a fair trial—not innocence. See
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Strickland, 466 U.S. at 684 (“[T]his Court has recognized that the Sixth
Amendment right to counsel exists, and is needed, in order to protect the
fundamental right to a fair trial.”). As we said in Osborn, “a claimant under
[§ 2513] may not rely upon the manner in which he was tried to show that he
actually committed no substantive offense.”                       322 F.2d at 841–42.
Consequently, Hernandez’s conviction was not “set aside on the ground that
she [is] not guilty.”
       Similarly, Hernandez was not “found not guilty” on “rehearing.”
Hernandez asserts, without any citation to the record, that the “Magistrate
Judge specifically held that if a new trial were held, [Hernandez] would be
acquitted of all charges.” The Magistrate Judge’s Report and Recommendation
does not include any such holding. The closest it ever comes to saying that is
when the Magistrate Judge wrote, “The undersigned can strongly conclude
that counsel’s errors have unfairly undermined the confidence in Petitioner
Maria Hernandez’s guilty verdict.”              But, again, that analysis focuses on
whether she had a fair trial, not whether she was or was not guilty. Had
Hernandez’s habeas proceeding actually resulted in a declaration that she was
not guilty, the district court would have discharged her without any caveat,
rather than ordering a new trial. 1




       1 In her reply brief, Hernandez argues that “[a]t a minimum, [she] should be granted
a hearing on this issue.” It is unclear from her briefing what precisely “this issue” is intended
to mean. Regardless, because she waited until her reply brief to raise this argument, she has
waived it. See Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003) (“To the extent that
appellants attempt to raise the issue . . . in their reply brief, we view the issue waived.”).
Similarly, Hernandez passingly argues that the Government’s decision not to retry her—
which she did not oppose at the time—violated her right to due process. She has insufficiently
briefed the issue, and it is therefore waived. See Hollis v. Lynch, 827 F.3d 436, 451 (5th Cir.
2016) (considering a “passing reference” to a claim in an appellate brief to be insufficient).
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                             IV.   Conclusion
     Hernandez has thus not identified any reversible error in the district
court’s denial of her certificate. Accordingly, we AFFIRM the judgment below.




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