Veltmann v. United States of America, The
Filing
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OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION denying 12 Motion for Summary Judgment filed by Christopher Veltmann, adopting 10 Report and Recommendation. Complaint is dismissed without prejudice and without issuance and service of process. Signed by Honorable Margaret B Seymour on 11/20/2018. (mdea )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Christopher Veltmann,
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Plaintiff,
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v.
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United States of America,
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Defendant.
)
__________________________________________)
Civil Action No. 3:18-1320-MBS
OPINION AND ORDER
On May 14, 2018, Plaintiff Christopher Veltmann (“Plaintiff”), proceeding pro se and in
forma pauperis, brought the underlying action against the United States of America (“Defendant”)
pursuant to the unjust conviction and imprisonment statutes, 28 U.S.C. §§ 1495, 2513. ECF No.
1. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Shiva V. Hodges for pretrial handling.
Plaintiff states he was arrested October 17, 1991, and released from prison on September
13, 1996, “when a jury found him innocent of all crimes listed on the indictment.” ECF No. 1 at
2. He seeks monetary damages in the amount of $245,760.06, which he asserts amounts to
payment of $136.99 per day for the 1,794 days of his incarceration. Id.
Following her review of the complaint, the Magistrate Judge filed a Report and
Recommendation on June 4, 2018. ECF No. 10. The Magistrate Judge found that Plaintiff failed
to meet the statutory requirements to proceed with the claim because he had not offered evidence
of a certificate of actual innocence. She therefore recommended that the court summarily deny
the complaint for failure to state a claim upon which relief can be granted. Id.
On the same day the Magistrate Judge issued her Report and Recommendation, Plaintiff
filed a motion for summary judgment, asserting “[t]here are no facts in the Complaint that can be
disputed.” ECF No. 12 at 2. One week later, Plaintiff filed a motion to stay the action until the
court in which he was sentenced, the United States District Court for the Middle District of Florida,
could rule on his motion for a certificate of innocence. ECF No. 14. On August 8, 2018, the court
granted the motion to stay for thirty days. ECF No. 15. On September 19, 2018, the court sua
sponte extended the stay for another thirty days and ordered Plaintiff to file a status report on or
before October 19, 2018. ECF No. 18. Plaintiff failed to file a status report, and has otherwise
failed to inform the court of the status of proceedings in the Middle District of Florida.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight and the responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court reviews de novo only those
portions of a Magistrate Judge’s report and recommendation to which specific objections are filed
and reviews those portions to which there are no objections—including those portions to which
only “general and conclusory” objections have been made—for clear error. Diamond v. Colonial
Life and Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983); Opriano v. Johnson, 687 F.2d 44, 77 (4th Cir. 1982). The court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1). Plaintiff did not raise a specific objection to the Report
and Recommendation, but rather asked for additional time to obtain a certificate of innocence.
Accordingly, the court reviews the Report and Recommendation for clear error. Diamond, 416
F.3d at 315; Fed. R. Civ. P. 72(b).
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DISCUSSION
Under the provisions of 28 U.S.C. §§ 1495 and 2513, an individual unjustly convicted of
a federal crime and imprisoned may seek monetary damages upon his release from prison. The
person seeking relief must allege and prove that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty
of the offense of which he was convicted, or on new trial or rehearing he was found
not guilty of such offense, as appears from the record or certificate of the court
setting aside or reversing such conviction, 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
neglect cause or bring about his own prosecution.
28 U.S.C. § 2513(a). The statute specifies that “[p]roof of the requisite facts shall be by a
certificate of the court or pardon wherein such facts are alleged to appear, and other evidence
thereof shall not be received.” Id. at § 2513(b). The Magistrate Judge recommends dismissing
the complaint due to Plaintiff’s failure to provide a certificate of innocence at the pleading stage.
It is not clear, however, whether a certificate of innocence is required to state a prima facie claim
under section 2513, as discussed below. More importantly, it is not apparent that this court has
jurisdiction over Plaintiff’s claim. The court addresses the jurisdictional consideration first.
Federal courts “are courts of limited jurisdiction, constrained to exercise only the authority
conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re
Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998) (quoting Owen Equip. & Erection Co.
v. Kroger, 437 U.S. 365, 374 (1978)) (internal quotations omitted). The proponent of federal
jurisdiction bears the burden of demonstrating that jurisdiction exists. See, e.g., Davis v. Pak, 856
F.2d 648, 650 (4th Cir. 1988) (citation omitted). The court must evaluate its jurisdiction, sua
sponte if necessary, “to ensure that it does not decide controversies beyond its authority.” Id.
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Section 1495 provides that “jurisdiction to render judgment upon any claim for damages by any
person unjustly convicted of an offense against the United States and imprisoned” lies in the United
States Court of Federal Claims. 28 U.S.C. § 1495. Although earlier cases held that federal district
courts had concurrent jurisdiction with the Court of Federal Claims under the Tucker Act,
“[j]urisdiction to consider unjust conviction claims is presently considered to reside exclusively in
the U.S. Court of Federal Claims.” Darian B. Taylor, Validity, Construction, and Application of
28 U.S.C.A. § 2513, Providing Damages in Court of Federal Claims Upon Proof of Unjust
Conviction and Imprisonment and Underlying Elements of 28 U.S.C.A. § 1495 that Petitioner
Prove that He or She was Convicted of Federal Crime and Imprisoned as Result, 25 A.L.R. Fed.
3d Art. 1 (2017) (collecting cases). See Calloway v. United States, 431 F. Supp. 1111, 1113–14
(E.D. Okla. 1977) (holding that legislative history of 28 U.S.C. § 1495 contained no indication
that Congress intended district court to have concurrent jurisdiction over claims brought under the
statute for unjust conviction and imprisonment). Accordingly, Plaintiff has not carried his burden
of demonstrating jurisdiction exists in this court.
Additionally, the case law is not clear whether a certificate of innocence is required to state
a prima facie claim under 28 U.S.C. § 2513.1 The court need not resolve this uncertainty, however,
1
Compare Bolduc v. United States, 248 F. App’x 162, 164-65 (Fed. Cir. 2007) (holding that “[a]
certificate of innocence is not an element of a prima facie case of unjust conviction and
imprisonment; it is merely a means of proving the underlying facts”), and Veltmann v. United
States, 39 Fed. Cl. 426, 428 (1997) (finding the court “plainly” had jurisdiction to adjudicate
claims for unjust conviction and imprisonment based on facts asserted in the complaint), aff'd, 168
F.3d 1319, 1998 WL 476935 (Fed. Cir. 1998)), with Wood v. United States, 91 Fed. Cl. 569, 57677 (2009) (following binding precedent from Court of Claims rather than unpublished Federal
Circuit opinions and finding that certificate of innocence is a jurisdictional prerequisite in the Court
of Federal Claims). Plaintiff states in his complaint that a jury found him to be innocent of the
crimes charged in the indictment, that he “did not commit any of the acts charged,” that “acts,
deed, or omission in connection with such charge[] constituted no offense against the United
States,” and that he did not bring about his prosecution. ECF No. 1 at 2, 6. The court finds, for
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because review of the docket in the underlying action in the Middle District of Florida
demonstrates that Plaintiff has in fact been denied a certificate of innocence, twice.2 The most
recent order denying Plaintiff’s request was issued on July 12, 2018. United States v. Veltmann,
No. 8:91-cr-294-T-17TGW, 2018 WL 3404155 (M.D. Fla. July 12, 2018).
In that order
(“Veltmann Order”), the Middle District of Florida summarized the background of the underlying
proceeding as follows. On March 13, 1992, Plaintiff was tried to a jury before the Honorable
Nicholas Tsoucalas and found guilty on Counts 1, 2-19, 20-29. Id. at *1. The Eleventh Circuit
Court of Appeals affirmed in part and reversed in part; and the case was remanded for a new trial.
Id. The case was ultimately retried to a jury before the Honorable H.D. Cook on August 26, 1996.
Id. at *3. The jury found Plaintiff not guilty on Counts 1, 2-19, 20-29, and, on September 12,
1996, Judge Cook directed that Plaintiff be released from custody. Id. On July 7, 1997, Plaintiff
moved for a certificate of innocence, and thereafter moved for an expedited ruling. Id. Judge
Cook struck the motions, and Plaintiff appealed. On April 21, 1998, Plaintiff again moved for a
certificate of innocence and Judge Cook again denied the motion. The Eleventh Circuit affirmed
Judge Cook’s order on September 22, 1999. Id. The Veltmann Order was issued by the Honorable
Elizabeth Kovachevich, who noted that “[a]lthough [she] is the presiding judicial officer for this
case, Judge Cook presided over [Plaintiff’s] trial, and denied [his] request for a certificate of
innocence.” Id. at *4. Judge Kovachevich acknowledged that Plaintiff’s conviction had been
the purpose of this opinion and order, that these allegations are sufficient under Bolduc and
Veltmann to state a claim pursuant to 28 U.S.C. § 2513.
2
Federal Rule of Evidence 201 authorizes the court to take judicial notice of a fact that is not
subject to reasonable dispute because it “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Rodic v. Thistledown
Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.), cert. denied, 449 U.S. 996, 101 (1980) (holding
federal courts may take judicial notice of proceedings in other courts of record) (cited with
approval by Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)).
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“reversed or set aside,” but noted that a “jury verdict of ‘not guilty’ alone is not sufficient to
establish [Plaintiff’s] innocence.” Id. at *4. She then denied Plaintiff’s motion for a certificate of
innocence.3
Plaintiff has failed to show that federal subject matter jurisdiction exists. Furthermore,
judicially noticeable documents demonstrate that Plaintiff cannot meet his burden of proof. For
these reasons, the complaint is dismissed.
CONCLUSION
The court adopts the Report and Recommendation as modified herein.
Plaintiff’s
complaint is dismissed without prejudice and without issuance and service of process. Plaintiff’s
motion for summary judgment is denied.
IT IS SO ORDERED.
Dated: November 20, 2018
Columbia, South Carolina
/s/Margaret B. Seymour_________
Margaret B. Seymour
Senior United States District Judge
3
The Veltmann Order noted that Plaintiff had previously sought relief under 28 U.S.C. § 2513 in
the United States Court of Federal Claims, and that the Court of Federal Claims had dismissed
Plaintiff’s complaint for failure of proof after he failed to file a certificate of innocence. Id. (citing
Christopher Veltmann v. United States, No. 97-58 (Fed. Cl. Jan. 29, 1997)).
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