Mhammad Abu-Shawish v. United States ( 2018 )

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 sec-
ond 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 re-
sponse from the government, the district court dismissed the
petition, reasoning that Abu-Shawish failed to provide evi-
dence 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 proceed-
ings. 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 ques-
tion 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 identi-
cal” 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 Devel-
opment, 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 gov-
ernment 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-Shaw-
ish with the wrong crime because the federal program fraud
statute requires that the defendant be an agent of the de-
frauded organization. Id. at 556. Because Abu-Shawish was
not an agent of the City of Milwaukee, and because the indict-
ment did not indicate that Abu-Shawish defrauded his own
non-profit, he could not be charged under the federal pro-
gram 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-Shaw-
ish 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 unsuccess-
fully 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 juris-
diction because Abu-Shawish had not yet obtained a certifi-
cate 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.” Af-
ter more than three months with no docket activity, Abu-
Shawish 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 time-
barred. Instead, the government’s position, which it explained at oral ar-
gument, 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 pe-
tition in January 2017. Abu-Shawish appealed, and we re-
cruited 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 con-
viction 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 dam-
ages remedy against the United States. The first gives the
Court of Federal Claims jurisdiction over “any claim for dam-
ages by any person unjustly convicted of an offense against
the United States and imprisoned.” 28 U.S.C. § 1495. The sec-
ond establishes what a petitioner must prove and how and
where a petitioner must prove it to establish the dam-
ages 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 pe-
titioner must allege and prove:
First, the petitioner must establish that the rec-
ord 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 Colum-
bia. 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 re-
hearing 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 ne-
glect 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 pro-
duction and persuasion.” Pulungan, 722 F.3d at 986; see also
Graham, 608 F.3d at 172 (noting that § 2513 “imposes a rigor-
ous burden”). Section 1495 waives the government’s sover-
eign 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 stat-
utes 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) (read-
ing § 2513 together with sentencing credit statute, 18 U.S.C. § 3585, and
reversing damages award because time petitioner served for reversed con-
viction 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 steel-
worker in one of Carnegie’s mills who was released from
prison after serving twenty years of a life sentence for a mur-
der 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 Car-
negie’s mills. Id. at 287–89. Convicted amidst a wave of anti-
Hungarian 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 con-
victed prisoners like Toth, but it took more than 25 years for
Congress to enact legislation. 4
4The current actual-innocence statutes stem from a 1937 bill that be-
came 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 en-
acted originally. Jurisdictional provisions of section 729 of ti-
tle 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 tak-
ing 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 Errone-
ously 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 orig-
inal 1912 Senate Bill and wrote an accompanying document (with an edi-
torial by John Wigmore, then the dean of Northwestern’s Law School) urg-
ing Congress to act. Edwin M. Borchard, State Indemnity for Errors of Crim-
inal Justice, S. Doc. No. 62-974 (3d Sess. 1912). Borchard’s document, ap-
parently drawing from European indemnity statutes, referred to the Toth
case as “still fresh in the public mind.” Id. at 5. Eventually, Borchard be-
came a law professor and wrote a book digesting 65 innocence cases, in-
cluding Toth’s. Edwin M. Borchard, Convicting the Innocent: Errors of Crim-
inal 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 in-
tended.”). The only material change since then was a substan-
tial increase of the damages cap in § 2513(e). Justice for All Act
of 2004, Pub. L. No. 108-405, § 431, 118 Stat. 2260, 2293 (replac-
ing $5,000 cap with caps of $100,000 per year of incarceration
for plaintiffs sentenced to death and $50,000 per year of incar-
ceration for all other plaintiffs).
Like the district court here and every other circuit to con-
sider 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 inno-
cent 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 con-
victions 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 inno-
cent 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 indict-
ment—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. In-
stead 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 certifi-
cate, 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 un-
der 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. Cal-
laghan, 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 pro-
cedural 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 cer-
tificate 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. Dis-
cretion does not mean that a district judge can exercise “dis-
cretion” to deny a certificate even if a petitioner meets the stat-
utory burden of proof. That would be a legal error—an abuse
of discretion by definition. See Betts, 10 F.3d at 1283, 1286 (not-
ing abuse-of-discretion and clear-error standards and revers-
ing 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 discre-
tion were contemplated, and only a ministerial act was re-
quired, 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) (re-
quirement 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-inno-
cence statutes do not establish specific procedures for decid-
ing a petition, so the details of briefing and any motions prac-
tice 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 discre-
tion. 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 dis-
putes”), 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 appel-
late 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 re-
ceived 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 Abu-
Shawish’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 “ev-
idence 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 inde-
pendent evidentiary submissions,” id. at 883 n.2. But under
Rule 8 “evidence is not required at the pleading stage,” Carl-
son v. CSX Transportation, Inc., 758 F.3d 819, 827 (7th Cir. 2014)
(reversing dismissal because district court “applied too de-
manding a standard” by requiring evidence at pleading
stage), and neither the district court nor the government iden-
tified 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 al-
leged 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 inno-
cent 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 amend-
ment 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 ex-
plained in Runnion, “The liberal standard for amending under
Rule 15(a)(2) is especially important where the law is uncer-
tain.” 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 determi-
nation, 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 ar-
gument, briefing, and affidavits from both parties); Keegan, 71
F. Supp. at 637–38 (noting that district court may rely primar-
ily on trial record but that other relevant facts may be submit-
ted 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 pro-
ceedings on certificate of innocence because petitioner “pro-
duced 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 dif-
ficult 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 gov-
ernment is not arguing that he fails the third requirement, not
having caused his conviction. Abu-Shawish’s claim will suc-
ceed 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 Abu-
Shawish’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 suffi-
cient 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. State-
ments about the sufficiency of evidence do not offer a shortcut
around that question. See Weiss, 95 F. Supp. at 179–80 (declin-
ing to defer to dictum in Supreme Court opinion that peti-
tioner was not guilty of offense other than offense of convic-
tion); Keegan, 71 F. Supp. at 639 (same); see also United States
v. Racing Services, Inc., 580 F.3d 710, 713–14 (8th Cir. 2009) (af-
firming district court’s denial of certificate even though appel-
late 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 tri-
als 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 Abu-
Shawish’s second trial, without giving Abu-Shawish an op-
portunity 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 op-
portunity to be heard. When the court decides the case on the
merits, it will need to explain its ultimate decision with re-
viewable 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.