Gibson v. United States ( 2022 )

In the United States Court of Federal Claims
No. 22-735C
(Filed: August 12, 2022)
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TRACY RAY GIBSON, *
*
Plaintiff, *
* Pro Se Plaintiff; Sua Sponte
v. * Dismissal for Lack of Jurisdiction;
* Application to Proceed In Forma
THE UNITED STATES, * Pauperis
*
Defendant. *
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Tracy Ray Gibson, Rosharon, TX, pro se.
Sarah E. Kramer, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
Plaintiff Tracy Ray Gibson, proceeding pro se, asserts several constitutional and state-law
claims. Specifically, Mr. Gibson alleges that because a state appellate court granted him relief in
a state criminal matter, he is entitled to compensation and a certificate of innocence under federal
statutes. In addition to his complaint, Mr. Gibson filed a motion requesting that his appellate
court record “be furnished.” Finally, Mr. Gibson seeks to proceed in forma pauperis. For the
reasons set forth below, the court grants Mr. Gibson’s application to proceed in forma pauperis,
dismisses Mr. Gibson’s complaint for lack of jurisdiction, and denies Mr. Gibson’s motion.
I. BACKGROUND
Mr. Gibson’s claims relate to several of his criminal matters in the state of Texas.
According to his complaint, Mr. Gibson pleaded guilty to aggravated robbery, felony possession
of a firearm, and theft. Compl. 1. 1 As a result of at least some of those offenses, Mr. Gibson is
currently incarcerated. Id. However, he did have some success in his appeal to Texas’s Court of
Criminal Appeals, which, according to Mr. Gibson, included a reversal and remand by the
appellate court and a new trial. Id.
Mr. Gibson alleges that his “constitutional rights of Due Process [and] Double Jeopardy
were violated” and the “ineffective assistance of counsel violating his Sixth Amendment right to
effective representations.” Id. at 3, 6. All of these alleged constitutional violations seem to
1
The page references to all of Mr. Gibson’s filings are those assigned by the court’s
electronic filing system.
relate to his Texas criminal matters. Specifically, Mr. Gibson argues that his rights were violated
based on the purported misapplication of several provisions of the Texas Code of Criminal
Procedure (“T.C.C.P.”) pertaining to sentencing calculations. Id. at 4-5. For relief, Mr. Gibson
seeks “compensat[ion] for [his] erroneous conviction,” “his immediate release from a null and
void conviction,” and “a Certificate of innocence.” Id. at 6.
Shortly after filing his complaint, Mr. Gibson filed a motion appearing to ask either this
court or “the 145th Judicial District of Nacogdoches County, Clerk of Court Loretta Cammack”
to furnish the “appellate record from the convicting trial court . . . .” Pl.’s Mot. for Trial Court to
Furnish Appellate R. (“Pl.’s Mot.”) 1. In his motion, Mr. Gibson restates the factual background
he discusses in his complaint concerning his criminal conviction and subsequent appellate review
and argues that this appellate record is relevant in the proceedings before this court. Id. at 1-2.
In conjunction with his complaint and motion, Mr. Gibson filed an application to proceed
in forma pauperis. Having considered all of Mr. Gibson’s submissions, and finding a response
from defendant unnecessary, the court is prepared to adjudicate Mr. Gibson’s claims.
II. MR. GIBSON’S COMPLAINT
Whether the court has jurisdiction to decide the merits of a case is a threshold matter.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). “Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514 (1868). The parties or the court sua
sponte may challenge the existence of subject-matter jurisdiction at any time. Folden v. United
States, 379 F.3d 1344, 1354 (Fed. Cir. 2004).
When considering whether to dismiss a complaint for lack of jurisdiction, a court
assumes that the allegations in the complaint are true and construes those allegations in the
plaintiff’s favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A pro se plaintiff’s
complaint, “‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal
pleadings drafted by lawyers’. . . .” Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a pro se plaintiff is not excused from
meeting basic jurisdictional requirements. See Henke, 60 F.3d at 799 (“The fact that [the
plaintiff] acted pro se in the drafting of his complaint may explain its ambiguities, but it does not
excuse its failures, if such there be.”). In other words, a pro se plaintiff is not excused from his
burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. See
Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014) (citing Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).
The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to
entertain suits against the United States is limited. “The United States, as sovereign, is immune
from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
The waiver of immunity “cannot be implied but must be unequivocally expressed.” United
States v. King, 395 U.S. 1, 4 (1969).
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The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States, not sounding in tort, that are founded
upon the United States Constitution, a federal statute or regulation, or an express or implied
contract with the United States. 28 U.S.C. § 1491(a)(1). However, the Tucker Act is merely a
jurisdictional statute and “does not create any substantive right enforceable against the United
States for money damages.” United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the
substantive right must appear in another source of law, such as a “money-mandating
constitutional provision, statute or regulation that has been violated, or an express or implied
contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554
(Fed. Cir. 1994) (en banc).
Mr. Gibson invokes 28 U.S.C. § 1495 and 28 U.S.C. § 2513 as the basis for the court’s
jurisdiction. Compl. 1. The court does have jurisdiction to entertain claims for compensation
based on unjust conviction and imprisonment; however, that jurisdiction only extends to unjust
convictions for crimes against the United States. See 28 U.S.C. § 1495 (“The 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.”). Mr.
Gibson does not allege that he was convicted of an offense against the United States. Instead,
accepting his statements as true, Mr. Gibson pleaded guilty to state-law crimes, successfully
appealed two of the charges to a state criminal appellate court, and remains “in custody as ward
of the State of Texas.” Compl. 1-2. He does not allege that the United States played any role in
his criminal convictions. Accordingly, he does not meet the statutory requirement under
28 U.S.C. § 1495 of being convicted of an offense against the United States. 2 See, e.g., Nyabwa
v. United States, 130 Fed. Cl. 179, 184-85 (2017) (holding that the court did not have jurisdiction
under 28 U.S.C. § 1495 because plaintiff’s unjust conviction and imprisonment claims rose from
state crimes).
Further, Mr. Gibson cannot rely on 28 U.S.C. § 2513 to establish jurisdiction. This
provision sets forth the prerequisites for a wrongful monetary claim under § 1495, including the
production of a certificate of innocence. See Wood v. United States, 91 Fed. Cl. 569, 577
(2009). Because Mr. Gibson cannot satisfy the fundamental requirement that his conviction be
for an offense against the United States, the prerequisites listed in § 2513 are irrelevant.
Additionally, Mr. Gibson’s invocation of § 2513 to establish jurisdiction is at odds with his
request that he “be awarded a certificate of innocence” Compl. 6. The court does not have the
authority provide a plaintiff with a certificate of innocence. See 28 U.S.C. § 2513(a)(1)
(requiring that the “court setting aside or reversing [the] conviction” provide the certificate of
innocence). Instead, pursuant to § 2513, a plaintiff provides a certificate of innocence to this
court in support of his claim under § 1495.
Turning to the substance of his complaint, Mr. Gibson makes three constitutional claims:
a due process claim, an ineffective assistance of counsel claim, and a double jeopardy claim. All
three claims fail because none of the constitutional provisions upon which Mr. Gibson relies
2
At the state level, Texas does have a statutory scheme that provides for an exoneree
compensation program. See Tex. Civ. Prac. & Rem. Code §§ 103.001-.003, 103.051-.054,
103.101-.102, 103.151-.154.
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mandates the payment of money damages for its violation; therefore, this court lacks jurisdiction
to entertain them.
Mr. Gibson first alleges a violation of his “constitutional rights of Due Process [and]
Double Jeopardy.” Compl. 3-4. Both the Fifth and Fourteenth Amendments of the United States
Constitution contain due process clauses, and Mr. Gibson does not specify which due process
clause he is referencing. Nevertheless, neither the Double Jeopardy Clause nor the due process
clauses of the Fifth or Fourteenth Amendments are money-mandating. See Flowers v. United
States, 321 F. App’x 928, 934 (Fed. Cir. 2008) (holding that the Court of Federal Claims lacks
jurisdiction over claims of double jeopardy); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.
Cir. 1995) (“[T]he Due Process Clauses of the Fifth and Fourteenth Amendments [and] the Equal
Protection Clause of the Fourteenth Amendment . . . [are not] a sufficient basis for jurisdiction
because they do not mandate payment of money by the government.”); Mullenberg v. United
States, 857 F.2d 770, 773 (Fed. Cir. 1988) (holding that the Due Process and Equal Protection
Clauses “do not trigger Tucker Act jurisdiction in the courts”).
Additionally, Mr. Gibson alleges an ineffective assistance of counsel claim under the
Sixth Amendment, stating that his “court-appointed counsel failed to object to a time barred
indictment.” Compl. 6. Again, the Sixth Amendment is not money-mandating; therefore, this
court lacks jurisdiction. See Dupre v. United States, 229 Ct. Cl. 706, 706 (1981); Alston-Bullock
v. United States, 122 Fed. Cl. 38, 44 (2015); Seals-Bey v. United States, 116 Fed. Cl. 120, 122
(2014).
Finally, Mr. Gibson makes several references to the T.C.C.P. 3 Compl. 4-5. These
references seem to be tied to his due process and double jeopardy claims—alleging, for example,
that the T.C.C.P. was violated, therefore, he was deprived of due process and suffered double
jeopardy. See e.g., id. at 4 (“When the State implemented T.C.C.P. art § 28.10[,] it triggered
Due Process [and] Double JEOPARDY.”). To the extent Mr. Gibson’s T.C.C.P. claims are
inextricably linked to his due process and double jeopardy claims, this court, as discussed above,
lacks jurisdiction over them. However, even if the T.C.C.P. claims are separate from Mr.
Gibson’s constitutional claims, the court still lacks jurisdiction. The T.C.C.P. is a Texas statute,
and this court can only hear claims arising out of federal—not state—statutes or regulations. See
28 U.S.C. § 1491(a)(1); Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007)
3
In describing the plea bargain process in his criminal matter, Mr. Gibson also makes a
single reference to a contract. See Compl. 3 (“Defendants did NOT reindict plaintiff but allowed
him to enter another contract without jurisdiction over the subject-matter.”). To the extent Mr.
Gibson is asserting a breach of contract claim, this court lacks jurisdiction as the alleged contract
is between Mr. Gibson and the state of Texas—not the United States. See 28 U.S.C. § 1491 (“The
United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim
against the United States founded . . . upon . . . any express or implied contract with the United
States . . . .”); accord Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984)
(“The government consents to be sued only by those with whom it has privity of contract.”); cf.
Kaetz v. United States, 158 Fed. Cl. 422, 428-29 (2022) (analyzing whether a plea agreement
between the plaintiff and the United States was a “binding contract subject to Tucker Act
jurisdiction” (quoting Kania v. United States, 650 F.2d 264, 268-69 (Ct. Cl. 1981))).
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(“Claims founded on state law are . . . outside the scope of the limited jurisdiction of the Court of
Federal Claims.”).
III. MR. GIBSON’S MOTION FOR THE TRIAL COURT TO FURNISH THE
APPELLATE RECORD
Having determined that Mr. Gibson’s claims must be dismissed for lack of subject-matter
jurisdiction, the court turns to Mr. Gibson’s motion that the appellate record of his criminal case
“be furnished.” Pl.’s Mot. 1. Mr. Gibson argues that this appellate record “is relevant in this . . .
28 U.S.C. § 1495; § 2513 proceeding[ ] to recover damages for erroneous conviction.” Id. at 2.
Construing the motion in his favor, Mr. Gibson is asking the court to consider an appellate record
reflecting the relief he was granted because, assumedly, this record would be evidence of his
unjust conviction for purposes of 28 U.S.C. § 1495 and would satisfy the certificate of innocence
requirement of 28 U.S.C. § 2513. However, as discussed above, jurisdiction is a threshold
matter, and because the court lacks jurisdiction over Mr. Gibson’s claims, it can neither direct the
compilation or submission of the state appellate record nor consider the contents of that record.
Accordingly, it must deny Mr. Gibson’s motion.
IV. MR. GIBSON’S APPLICATION TO PROCEED IN FORMA PAUPERIS
Finally, as noted above, Mr. Gibson filed, concurrent with his complaint, an application
to proceed in forma pauperis. Courts of the United States are permitted to waive the prepayment
or payment of filing fees and security under certain circumstances. 4 28 U.S.C. § 1915(a)(1).
Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that lists all of their
assets, declares that they are unable to pay the fees or give the security, and states the nature of
the action and their belief that they are entitled to redress. Id. Further, prisoners must file “a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the complaint . . . obtained from the
appropriate official of each prison at which the prisoner is or was confined.” Id. § 1915(a)(2).
Mr. Gibson has substantially satisfied the requirements set forth in 28 U.S.C. § 1915(a).
The court therefore grants his application to proceed in forma pauperis and waives his
prepayment of the filing fee. Notwithstanding the court’s waiver, prisoners seeking to proceed in
forma pauperis are required to pay, over time, the filing fee in full. Id. § 1915(b). Thus, Mr.
Gibson shall be assessed, as a partial payment of the court’s filing fee, an initial sum of twenty
percent of the greater of (1) the average monthly deposits into his account, or (2) the average
monthly balance in his account for the six-month period immediately preceding the filing of his
complaint. See id. § 1915(b)(1). Thereafter, Mr. Gibson shall be required to make monthly
4
While the Court of Federal Claims is not generally considered to be a “court of the
United States” within the meaning of title 28 of the United States Code, the court has jurisdiction
to grant or deny applications to proceed in forma pauperis. See 28 U.S.C. § 2503(d) (deeming
the Court of Federal Claims to be “a court of the United States” for the purposes of 28 U.S.C.
§ 1915); see also Matthews v. United States, 72 Fed. Cl. 274, 277-78 (2006) (recognizing that
Congress enacted the Court of Federal Claims Technical and Procedural Improvements Act of
1992, authorizing the court to, among other things, adjudicate applications to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915).
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payments of twenty percent of the preceding month’s income credited to his account. See id.§ 1915(b)(2). The agency having custody of Mr. Gibson shall forward payments from his
account to the clerk of the Court of Federal Claims each time the account balance exceeds $10
and until such time as the filing fee is paid in full. See id.
V. CONCLUSION
As explained above, the court lacks jurisdiction to consider Mr. Gibson’s claims. Thus,
the court DISMISSES Mr. Gibson’s complaint WITHOUT PREJUDICE and DENIES Mr.
Gibson’s Motion for Trial Court to Furnish Appellate Record. In addition, although the court
GRANTS Mr. Gibson’s application to proceed in forma pauperis, it directs Mr. Gibson to pay
the filing fee in full pursuant to 28 U.S.C. § 1915(b), as previously described. No costs. The
clerk shall enter judgment accordingly.
IT IS SO ORDERED.
MARGARET M. SWEENEY
Senior Judge
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