Michael A. Diamen , Also Known As Salvatore Infantolino v. United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2010 Decided May 18, 2010
No. 09-5177
M ICHAEL A. DIAMEN , ALSO KNOWN AS
SALVATORE I NFANTOLINO ,
APPELLANT
v.
UNITED STATES OF AMERICA ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00-cv-3045-RMC)
Patrick Michael Regan argued the cause for the appellant.
Paul J. Cornoni and John K. Zwerling were on brief. Andrew B.
Weissman made an appearance.
Mary B. McCord, Assistant United States Attorney, argued
the cause for the appellee. Roy W. McLeese III and Carolyn K.
Kolben, Assistant United States Attorneys, were on brief.
Before: HENDERSON , GRIFFITH and KAVANAUGH , Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON .

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KAREN LE CRAFT HENDERSON , Circuit Judge: Salvatore
Infantolino a/k/a Michael A. Diamen served twenty years in
prison on a 1976 murder conviction. Diamen and two co-
defendants—Joseph Wayne Eastridge and Joseph N.
Sousa—sought habeas corpus relief in the district court on the
ground they had been wrongly convicted. The district court
issued a writ for Eastridge and Sousa but not for Diamen who
had died while the action was pending. Diamen’s estate
(Estate), along with Eastridge and Sousa, then moved for a
“certificate of innocence” in order to pursue a damages claim in
the Court of Federal Claims for unjust conviction and
imprisonment pursuant to 28 U.S.C. § 1495. The district court
granted the motion as to Eastridge and Sousa but denied it as to
Diamen because his conviction had not “been reversed or set
aside,” a prerequisite to obtaining a certificate of innocence
under section 28 U.S.C. § 2513(a)(1). The Estate appealed. We
affirm the district court’s judgment.
I.
In 1976, Diamen, along with three other members of the
“Pagans” gang— Eastridge, Sousa and Stephen C. Jones—was
convicted in the District of Columbia Superior Court of the first
degree murder while armed of Johnnie Battle in northwest
Washington, D.C. Diamen, like Eastridge and Sousa, was
sentenced to twenty years to life in prison. In December 2000,
after unsuccessful appeals and motions for post-conviction relief
in superior court, Diamen, Eastridge and Sousa petitioned the
district court for a writ of habeas corpus under 28 U.S.C. § 2241.
At the time, Eastridge was still incarcerated and Diamen and
Sousa had been released on parole. Diamen was arrested again
in August 2002, on a charge of possession of a firearm by a
felon, and was again incarcerated. He died in prison in
December 2002.
In May 2005, following an evidentiary hearing, the district
court granted the habeas petition as to Eastridge and Sousa,

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finding that (1) “[b]ased on the full record, no reasonable juror
would now find Petitioners guilty beyond a reasonable doubt”1
and (2) in addition to “their ‘actual innocence’ of the crime
charged,” the petitioners “c[ould] prove . . . violations of their
constitutional rights at trial.”2 Eastridge v. United States, 372 F.
Supp. 2d 26, 29 (D.D.C. 2005) (Eastridge I); see Schlup v. Delo,
513 U.S. 298, 327 (1995) (habeas petitioner must “show that a
constitutional violation has probably resulted in the conviction
of one who is actually innocent”) (internal quotation omitted).
Regarding Diamen, the court noted that “[p]resumably, the same
analysis would apply” but he had died during the proceeding
and, “[a]s a result, the habeas record and briefs do not focus on
him.” Eastridge I, 372 F. Supp. 2d at 29 n.3. The court vacated
Eastridge’s and Sousa’s convictions on July 15, 2005.
In April 2008, Eastridge, Sousa and the Estate moved for a
certificate of innocence “in order to proceed with wrongful
conviction claims before [t]he Court of Federal Claims pursuant
to 28 U.S.C. §§ 1495; 2513.” Mem. of Points and Authorities
in Supp. of Pet’rs’ Mot. for Certificate of Innocence at 1,
Eastridge v. United States, C.A. No. 00-3045 (D.D.C. Apr. 17,
2008). In an opinion dated March 12, 2009, the district court
concluded the petition should be granted as to Eastridge and
Sousa because they had “demonstrated that they were actually
innocent of the crimes for which they were convicted,”
1 The court found that new evidence (including testimony
recantation) showed that the petitioners were not involved in the
murder itself but only picked up Jones, who had participated in the
murder, after the fact. See Eastridge v. United States, 372 F. Supp. 2d
26, 55-56 (D.D.C. 2005) (Eastridge I).
2 The constitutional violations involved their Sixth Amendment
right to confront and cross-examine witnesses and their Fifth
Amendment right to due process (for withholding exculpatory grand
jury testimony). Eastridge I, 372 F. Supp. 2d at 57-60.

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Eastridge v. United States, 602 F. Supp. 2d 66, 73 (D.D.C.
2009) (Eastridge II). As to Diamen, however, the court agreed
with the government’s position that “it did not formally
adjudicate Mr. Diamen’s innocence and it cannot, therefore,
issue a Certificate of Innocence to his Estate.” Id. at 68.
The Estate filed a timely notice of appeal on May 11, 2009.
II.
We ordinarily review the district court’s denial of a
certificate of innocence for abuse of discretion. Rigsbee v. United
States, 204 F.2d 70, 72 (D.C. Cir. 1953) (“Whether to issue such
a certificate is committed to the discretion of the presiding
judge.”); accord Betts v. United States, 10 F.3d 1278 (7th Cir.
1993). Here, however, because the court’s interpretation of
section 2513 presents a purely legal issue—whether section 2513
requires a conviction to have been set aside before a certificate of
innocence may be granted—we review the interpretation de novo.
Cf. United States v. Hall, 324 F.3d 720, 722 (D.C. Cir. 2003)
(although court ordinarily reviews order granting new trial for
abuse of discretion, “purely legal question” is reviewed de novo).
Applying this standard, we conclude the district court did not err
when it denied the Estate’s motion for a certificate of innocence
because it had not adjudicated Diamen’s innocence in the habeas
proceeding, 602 F. Supp. 2d at 68.
On its face, section 2513 requires that a “person suing under
section 1495 . . . must allege and prove” two “requisite facts . . .
by a certificate of the court or pardon wherein such facts are
alleged to appear,” namely, (1) that “[h]is 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,” 28 U.S.C. § 2513(a)(1); and

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(2) that 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,” id. § 2513(a)(2). We
addressed these prerequisites to certification in Rigsbee, supra.
The claimant in Rigsbee was convicted of murder and assault
with a deadly weapon but on appeal was granted a new trial at
which the jury acquitted him of both counts, thereby establishing
the statute’s first requisite fact. Based on the second verdict, the
defendant applied to the district court for a certificate of
innocence. The district court, however, denied the application
based on its own “finding as a fact that defendant’s admitted acts
in connection with the charge constituted offenses against the
United States and the District of Columbia,” 204 F.2d at 71. On
appeal, we concluded that in so finding, the district court did not
abuse its discretion and we therefore upheld its denial of the
application. See id. at 72 (“Where, as here, [the judge] has
exercised [his] discretion, we cannot require him to stultify
himself by certifying an opinion contrary to his real
conviction—no matter what our own view might be—except,
perhaps, in a case in which the refusal to certify innocence was
completely capricious and without rational basis.”). We made
clear there that a certificate of innocence may issue only upon a
finding that both of the statute’s “requisite facts” exist; neither
one by itself suffices. See id. (“Not only must the plaintiff show
in the Court of Claims that he was acquitted; he must also show
that the trial judge thought he did not commit the acts charged or
that, if he did, his acts were justifiable and so not criminal.”).
In this case, the court found that the first requisite fact was
absent. Although the district judge observed in the habeas
proceeding that “[p]resumably, the same analysis would apply”
to Diamen as led her to set aside the convictions of Eastridge and
Sousa, Eastridge I, 372 F. Supp. 2d at 29 n.3 (emphasis added),

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she did not issue a habeas corpus writ setting aside Diamen’s
conviction. The judge was therefore unable in the subsequent
section 2513 proceeding to certify the statute’s first requisite
fact—that Diamen’s conviction “ha[d] been reversed or set
aside”—for the simple reason that it had not been.3 The Estate
was therefore not entitled to a certificate of innocence,
notwithstanding Diamen might well have obtained one himself
were he still living.
The Estate argues that the district court “failed to recognize
that it had the authority to reverse Appellant’s conviction even
though it lacked the authority to do so in the habeas proceeding”
and, specifically, that it erred in “refus[ing] to set aside
Appellant’s conviction and adjudicate Appellant’s innocence in
a non-habeas context—that is, Appellant’s Motion for Certificate
of Innocence.” Reply Br. 6. The Estate, however, identifies no
source of jurisdiction to set aside a conviction in the section 2513
certification proceeding. Although the Estate claims the court has
jurisdiction to do so in the course of the “investigation implicit in
§ 2513’s requirements,” Appellant’s Opening Br. 20, section
2513(a)(1) on its face authorizes the court only to certify that the
conviction already “has been reversed or set aside” (emphasis
added), not to proceed to set it aside in the certification
proceeding itself.
The Estate also argues it is unreasonable and unfair to deny
Diamen’s surviving family the relief under section 1495 to which
Diamen himself might be entitled—but this is the effect of
section 2513(a)(1)’s plain language. In fact, the statutory
language generally contemplates a remedy personal to the
individual wrongfully convicted rather than one available to his
heirs suing on his behalf. See 28 U.S.C. § 2513(a)(1) (“Any
person suing under section 1495 of this title must allege and
3 Because the court found the first fact absent, it did not make a
finding as to the second.

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prove that: (1) His conviction has been reversed or set aside
. . . and (2) He did not commit any of the acts charged or his acts,
deeds, or omissions . . . 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.”) (emphasis added); see also id. § 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.”) (emphasis added). To so limit relief was “within
legislative competence, since waiver of sovereign immunity from
suit is a matter of grace which the Congress may condition as it
chooses.” Rigsbee, 204 F.2d at 72.
Because the district court correctly applied the statute as
written, it did not err in denying the Estate’s motion for a
certificate of innocence. Accordingly, we affirm the district
court’s judgment.
So ordered.

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