Mhammad Abu-Shawish v. United States

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.