Reply Brief — Arthur Seale, Petitioner v. United States

Supreme Court briefApr 23, 2025

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Nos. 24-594 & 23-7806

IN THE

ARTHUR SEALE,

Petitioner,

UNITED STATES,

Respondent.

On Petitions for Writs of Certiorari

to the United States Court of Appeals

for the Third Circuit

REPLY BRIEF FOR PETITIONER

Easha Anand

Jeffrey L. Fisher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Alison Brill

Counsel of Record

Evan Austin

OFFICE OF THE FEDERAL

PUBLIC DEFENDER,

DISTRICT OF NEW JERSEY

800 Cooper Street, Suite 350

Camden, NJ 08102

(609) 489-7457

alison_brill@fd.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

REPLY BRIEF FOR PETITIONER ............................1

The Government concedes the split ......................2

II. This case provides an excellent vehicle to

resolve the question presented ..............................4

III. The question presented is important ....................7

IV. The COA requirement cannot bar both of Dr.

Seale’s appeals .......................................................8

CONCLUSION ...........................................................12

TABLE OF AUTHORITIES

Page(s)

Cases

Ajan v. United States,

731 F.3d 629 (6th Cir. 2013) ..................................5

Clark v. United States,

76 F.4th 206 (3d Cir. 2023) ............................3, 4, 9

Concepcion v. United States,

597 U.S. 481 (2022) ..........................................7, 10

In re Jones,

830 F.3d 1295 (11th Cir. 2016) ..............................8

Kaziu v. United States,

108 F.4th 86 (2d Cir. 2024) ................................ 5-6

In re Matthews,

934 F.3d 296 (3d Cir. 2019) ...................................8

New Haven Inclusion Cases,

399 U.S. 392 (1970) ................................................5

Pepper v. United States,

562 U.S. 476 (2011) ................................................7

United States v. Cody,

998 F.3d 912 (11th Cir. 2021) ............................3, 9

United States v. FNU LNU,

2024 WL 4039575 (2d Cir. Sept. 4, 2024) .............5

United States v. Hadden,

475 F.3d 652 (4th Cir. 2007) ..................................5

United States v. Kaziu,

2025 WL 629873 (E.D.N.Y. Feb. 27, 2025) ...........6

iii

Williams v. United States,

150 F.3d 639 (7th Cir. 1998) ..................................3

Statutes

18 U.S.C. § 924(c) .......................................................10

18 U.S.C. § 3553(a) .......................................................2

28 U.S.C. § 2253 ...................................................10, 11

28 U.S.C. § 2253(a) .......................................................4

28 U.S.C. § 2253(c) .......................................................9

28 U.S.C. § 2253(c)(1)(B) ..............................................9

28 U.S.C. § 2253(c)(2) .................................................10

28 U.S.C. § 2255 ..................................... 1, 2, 4, 5, 8-10

28 U.S.C. § 2255(b) .......................................................9

Rules

Sup. Ct. R. 15.6 .............................................................1

REPLY BRIEF FOR PETITIONER

Petitioner Arthur Seale, in his two petitions, asks

this Court to resolve a purely jurisdictional question:

Does the Third Circuit have jurisdiction to review the

district court’s refusal to resentence him after he

obtained vacatur of one of his convictions under

Section 2255?

Even on the Government’s theory, the answer to

that question must be “yes.” The Government appears

to accept that, at most, the COA requirement can

apply to only one of the two appeals before the Third

Circuit—either the appeal from the civil order or,

“instead,” the appeal from the amended criminal

judgment. Crim. Dkt. BIO 12-13.1 It necessarily

follows that the Third Circuit erred in applying the

COA requirement to bar both of Dr. Seale’s appeals.

This Court should grant certiorari to reverse on this

common ground alone.

If that were not enough, the Government does not

dispute that the courts of appeals are divided over Dr.

Seale’s ability to appeal the refusal to resentence him.

Nor does it contest that this case provides a superb

vehicle to resolve the question presented because Dr.

This brief serves as a reply in support of certiorari in

dockets No. 24-594 and No. 23-7806. Citations to “Crim. Dkt.”

refer to docket No. 24-594, containing Dr. Seale’s petition from

the amended judgment in his criminal case. Citations to “Civ.

Dkt.” refer to docket No. 23-7806, containing the petition from the

order in his civil Section 2255 case. Contrary to the Government’s

assertion, Dr. Seale did not “decline[] to file a reply” in Case No.

23-7806. Crim. Dkt. BIO 20. The case has not been distributed,

and, as the Government well knows, there is no deadline to file a

cert reply. Sup. Ct. R. 15.6.

Seale appealed from both his criminal and civil

dockets. And the Government does not deny that,

unless this Court clarifies the state of the law,

prisoners like Dr. Seale will be forced to clog the courts

with duplicative appeals.

The Government is thus left opposing review by

speculating about what might happen to Dr. Seale on

remand. But the courts below ruled only on

jurisdiction, and that is the only question presented.

This Court should grant certiorari to answer that

question.

The Government concedes the split.

The Government does not dispute that the courts

of appeals are divided 3-1-2 over whether and how to

exercise jurisdiction over an appeal like Dr. Seale’s—

that is, where a criminal defendant has secured

vacatur under Section 2255 and then seeks to appeal

a district court’s failure to resentence him. Crim. Dkt.

BIO 15.

1. The Second, Fourth, and Sixth Circuits would

hear Dr. Seale’s criminal appeal without requiring a

COA. Crim. Dkt. Pet. 9-10. The Government

complains that it’s unclear whether they would also

hear Dr. Seale’s petition from his civil Section 2255

docket. Civ. Dkt. BIO 17-18. True but irrelevant: The

Government does not—and cannot—dispute that Dr.

Seale could have obtained appellate review in those

three circuits by appealing the amended judgment in

his criminal docket. Crim. Dkt. BIO 15.

2. The Seventh Circuit would hear Dr. Seale’s civil

appeal by granting a COA. Crim. Dkt. Pet. 11-12. In

the Seventh Circuit, defendants like Dr. Seale—who

have secured vacatur of a conviction on a

constitutional ground—can obtain a COA to challenge

the district court’s failure to resentence upon a

showing that their sentences “would have been lower”

if their “constitutional rights [had] been respected at

the time of conviction.” Williams v. United States, 150

F.3d 639, 641 (7th Cir. 1998). The Government

protests that the Williams rule is infrequently cited,

but it doesn’t deny that the rule remains on the books

in the Seventh Circuit, that the Third Circuit has

rejected it, or that Dr. Seale could appeal under it.

Crim. Dkt. BIO 21; Crim. Dkt. Pet. 11-12.

3. By contrast, the Third and Eleventh Circuits

would not exercise jurisdiction over either appeal.

Both hold that a COA is necessary even in a criminal

appeal, unlike the Second, Fourth, and Sixth Circuits.

Clark v. United States, 76 F.4th 206, 211 (3d Cir.

2023); United States v. Cody, 998 F.3d 912, 914-15

(11th Cir. 2021). And, unlike the Seventh Circuit, the

Third Circuit would grant a COA only if the failure to

resentence was itself a constitutional violation, Clark,

76 F.4th at 212 n.6, rather than the statutory violation

at issue here.

II. This case provides an excellent vehicle to resolve

the question presented.

The Government does not contest that the

question presented was pressed and passed upon

below or that the Third Circuit’s dismissal was solely

for lack of jurisdiction. Crim. Dkt. Pet. 15. And because

the COA requirement applies to “the final order” in a

Section 2255 proceeding, 28 U.S.C. § 2253(a)

(emphasis added), this Court is best served by a case

that tees up both possible final orders (from the

criminal and civil proceedings). Indeed, the

Government has previously opposed certiorari on the

question presented where a criminal defendant

petitioned only from his civil docket and not his

criminal one. See BIO at 18, Clark, supra (No. 235950). Dr. Seale has appealed from both dockets and

cured any such defect.

Unable to dispute that this case is a clean vehicle

to resolve the jurisdictional question, the Government

instead speculates about how lower courts might rule

on the merits of Dr. Seale’s claim on remand. Its

speculation is beside the point. This Court has never

treated conjecture about the ultimate disposition of a

case as a barrier to granting certiorari on

jurisdictional questions. See Crim. Dkt. Pet. 16 n.4

(collecting cases).

In any event, the Government’s arguments on

that score are wrong.

1. First, the Government argues that even if the

Third Circuit had jurisdiction over Dr. Seale’s criminal

appeal, its hands would be tied. Crim. Dkt. BIO 13-14.

Per the Government, the Third Circuit must “take the

relief ordered by the district court in the Section 2255

proceeding as a given” even in Dr. Seale’s criminal

appeal. Id. 13.

That’s wrong. Indeed, the Second, Fourth, and

Sixth Circuits do not consider themselves so bound in

a criminal appeal by the civil Section 2255 proceeding.

See, e.g., United States v. FNU LNU, 2024 WL

4039575, at *3 (2d Cir. Sept. 4, 2024); United States v.

Hadden, 475 F.3d 652, 667 (4th Cir. 2007); Ajan v.

United States, 731 F.3d 629, 630 (6th Cir. 2013). And

the Government cites exactly zero cases for the

proposition that a habeas proceeding might have

preclusive effect on subsequent activity in a criminal

docket.

The Government’s sole citation is to one line from

a 1970 railroad bankruptcy case that is inapposite for

many reasons, chief among them that it dealt with a

bondholder’s choice not to take an appeal as of right.

Crim. Dkt. BIO 13-14 (discussing New Haven

Inclusion Cases, 399 U.S. 392, 481 (1970)). On the

Government’s telling, though, Dr. Seale doesn’t have

an appeal as of right, so he had no choice to make.

2. Second, the Government surmises that it’s “far

from clear . . . that petitioner was entitled to” a

resentencing. Crim. Dkt. BIO 15. Notice the

Government’s hedging: “far from clear.” Id. The

Government seems to acknowledge it’s quite plausible

that Dr. Seale is entitled to a resentencing.

As it must. The Third Circuit believes it lacks

jurisdiction to hear these appeals at all and thus

hasn’t weighed in on when a defendant in Dr. Seale’s

position is entitled to a resentencing. See Crim. Dkt.

Pet. 8. But in the Second Circuit, for instance, Dr.

Seale would be entitled to a resentencing because he

can present “plausible arguments of changed

circumstances” and “the resentencing judge [was] not

the original sentencing judge.” Kaziu v. United States,

108 F.4th 86, 94 (2d Cir. 2024).2 Indeed, one Second

Circuit judge would require a full resentencing, rather

It’s not even certain in the Second Circuit that a defendant

must show both changed circumstances and a new judge at

resentencing. The Second Circuit held only that “at least in

tandem,” the two factors are sufficient. Kaziu, 108 F.4th at 94 &

n.7.

than a sentence correction, “unless the resentencing

would be purely ministerial.” Id. at 98 (Calabresi, J.,

concurring).

The Government claims Dr. Seale would not be

entitled to resentencing in the Second Circuit because

his original sentencing transcript “sufficiently

reveal[s] the rationale behind the original sentence.”

Crim. Dkt. BIO 18 (internal quotation marks omitted).

But the majority in Kaziu rejected that exact

argument. Even if the new judge could “hypothesize

from the sentencing record,” the majority reasoned

that a “learned hypothesis is a weak substitute for

direct knowledge.” Kaziu, 108 F.4th at 93. And courts

in the Second Circuit do not read that circuit’s cases to

impose such a requirement. See, e.g., United States v.

Kaziu, 2025 WL 629873, at *2 (E.D.N.Y. Feb. 27,

2025).

3. Third, the Government argues the Court should

deny certiorari because Dr. Seale may remain in

custody regardless of what this Court decides. See

Crim. Dkt. BIO 15. This Court has never limited its

certiorari docket to only those cases that will, for

certain, result in release from custody.

Plus, a favorable decision from this Court would

provide Dr. Seale a meaningful opportunity to argue

for eventual release. If Dr. Seale secures resentencing,

a district court will have to “consider[] the defendant

on that day, not on the date of his offense or the date

of his conviction.” Concepcion v. United States, 597

U.S. 481, 486 (2022). This includes post-offense

developments, which give the “most up-to-date

picture” of the defendant’s history and characteristics.

Pepper v. United States, 562 U.S. 476, 491-92 (2011).

Today, Dr. Seale is a seventy-eight-year-old man who

has maintained a spotless prison record for thirtythree years, earned a Ph.D., and devoted himself to

decades of service to his fellow inmates. Crim. Dkt.

Pet. 17. A district court judge could surely conclude Dr.

Seale no longer deserves the maximum possible

sentence, or even that he deserves to be free at the end

of his life. And though Dr. Seale still has a pending

state sentence, he also has a clemency application

pending to the Governor of New Jersey.

Even if this Court has doubts about any of those

arguments, however, certiorari is still warranted. The

hurdles Dr. Seale will purportedly face on remand are

simply not relevant to the question presented to this

Court, which concerns solely the Third Circuit’s

appellate jurisdiction. The Government devotes most

of its space to what lower courts might do if they took

jurisdiction only because it cannot dispute that this

case is a clean vehicle for the jurisdictional question.

III. The question presented is important.

1. The Government acknowledges that it is “not

clear” whether petitioners like Dr. Seale should appeal

from their criminal judgments or civil orders. Civ. Dkt.

BIO 21-22. And prisoners and their counsel are just as

confused. Crim. Dkt. Pet. 18. Absent this Court’s

resolution, criminal defendants will be forced to

appeal from both their civil and criminal dockets,

creating duplicative litigation that clogs the courts but

may never receive any consideration. Id.

2. To be sure, the question presented implicates

only “a specific subset of collateral attacks,” as the

Government puts it. Crim. Dkt. BIO 11. But the

“specific subset” in question is comprised entirely of

federal prisoners who have already succeeded on

meritorious claims involving their initial convictions—

surely the last group that should be left in procedural

limbo.

And that “specific subset” will balloon each time

this Court invalidates a federal criminal statute on

constitutional grounds. See, e.g., In re Matthews, 934

F.3d 296, 298 n.2 (3d Cir. 2019); In re Jones, 830 F.3d

1295, 1301 (11th Cir. 2016) (Rosenbaum and Pryor,

JJ., concurring). The question presented thus takes on

new importance as this Court is poised to determine

the constitutionality of various criminal statutes

under the Second Amendment, for example. Crim.

Dkt. Pet. 19 n.7.

3. Dr. Seale’s case exemplifies the stakes for

individual litigants. The Third and Eleventh Circuits’

approach operates as an absolute bar to all manner of

grave statutory claims. Here, for instance, the district

court denied Dr. Seale a full resentencing because it

believed it was bound by the original sentencing

judge’s intent. Crim. Dkt. Pet. 7. That is a clear

violation of the rule that a defendant is judged as he

stands before the court, not as the man he used to be.

Id. 17 (citing Concepcion v. United States, 597 U.S.

481, 486, 493 (2022)). But that challenge is statutory,

not constitutional, and—according to the court

below—is thus insulated from review. The question

presented is thus the difference between Dr. Seale

dying in prison and being able to make a case for his

liberty.

IV. The COA requirement cannot bar both of Dr.

Seale’s appeals.

The Government does not dispute that if the COA

requirement applies to one of Dr. Seale’s appeals, it

cannot apply to the other. The arguments in at least

one of the Government’s BIOs must therefore be

wrong. In any case, the Government’s arguments fail

on their own terms.

1. The Government’s primary argument, across

both BIOs, hinges on its idea of what “steps” are

“necessary” under Section 2255. Civ. Dkt. BIO 12-13;

Crim. Dkt. BIO 11-12. This “step” theory does not hold

water.

Recall that the COA requirement applies to an

appeal from “the final order in a proceeding under

section 2255.” 28 U.S.C. § 2253(c)(1)(B). The

Government claims that requirement must apply to an

appeal of the decision to correct a sentence instead of

conducting a resentencing because a “proceeding

under Section 2255 necessarily includes . . . each of

the procedural steps that Section 2255(b) . . . directs

the district court to take,” including choosing between

resentencing and sentence correction. Crim. Dkt. BIO

11-12; see also Civ. Dkt. BIO 12-13.

But that argument proves too much. As the

Government acknowledges, Section 2255(b) “directs

the district court” not only to choose between

resentencing and correcting a sentence, but to actually

“effectuate[]” the resentencing or corrected sentence.

Civ. Dkt. BIO 12-14. Yet every court acknowledges

that the COA requirement would not apply where a

prisoner appealed an error committed during the

course of his resentencing, even though the

resentencing is one of the “procedural steps” that

Section 2255(b) “directs the district court to take.”

Crim. Dkt. BIO 11-12; see also Clark v. United States,

76 F.4th 206, 211 (3d Cir. 2023); United States v.

Cody, 998 F.3d 912, 916 (11th Cir. 2021).

2. And the Government has no response to Dr.

Seale’s arguments that, at the very least, the COA

requirement cannot apply to his criminal appeal. See

Crim. Dkt. Pet. 20-25. First, the Government does not

explain how the amended criminal judgment can be

the “order” contemplated by the COA requirement, 28

U.S.C. § 2253(c). As the government acknowledges,

one acts on the other; an order “direct[s]” the entry of

the corrected judgment. Crim. Dkt. BIO 13. So the

judgment is distinct from any “order.” Second, the

Government does not explain how the criminal docket

can be part of the “Section 2255 proceeding” when the

former predates the latter by thirty years, is initiated

by a different party, and is criminal rather than civil.

Crim. Dkt. Pet. 20-21.

3. As to Dr. Seale’s alternative argument—if he

must secure a COA, he is necessarily entitled to one

(Civ. Dkt. Pet. 19-21)—the Government’s approach is

similarly atextual. The COA requirement asks only

that a criminal defendant make “a substantial

showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). The vacatur of Dr. Seale’s 18

U.S.C. § 924(c) conviction is not just a “substantial

showing” but categorical proof of such a denial.

The Government nonetheless claims that Dr.

Seale is not entitled to a COA because he does not

“seek to appeal the district court’s resolution of that

constitutional question.” Civ. Dkt. BIO 22. This reads

into the COA requirement language that is not there.

The statute does not ask whether a criminal defendant

“seek[s] to appeal” the denial of a constitutional right,

id.; it asks only whether there has been the denial of a

constitutional right, 28 U.S.C. § 2253(c)(2).

4. Even if the Government’s arguments in either

of the BIOs were correct, both BIOs cannot be correct.

In setting out its theory of the merits, the Government

provides two possibilities: Either “the appealable final

order” (to which the COA requirement attaches) is the

“corrected judgment” in his criminal docket or,

“instead,” it is the “order directing that a corrected

judgment be entered” in his civil docket. Crim. Dkt.

BIO 12-13 (emphasis added).

Under the Government’s own theory, then, it

must have been error for the Third Circuit to block

both of Dr. Seale’s appeals. This Court should grant

certiorari to confirm as much and to clarify the correct

path of appeal for Dr. Seale and for future litigants.

CONCLUSION

For the foregoing reasons, the petitions for a writ

of certiorari should be granted.

Respectfully submitted,