Opposition Brief — Arthur Seale, Petitioner v. United States

No. 24-594

In the Supreme Court of the United States

ARTHUR SEALE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

ANN O’CONNELL ADAMS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioner must obtain a certificate of

appealability—which is necessary to appeal “the final

order in a proceeding under [28 U.S.C] 2255,” 28 U.S.C.

2253(c)(1)(B)—to appeal the district court’s resolution

of his Section 2255 claim through the issuance of an

amended criminal judgment.

(I)

ADDITIONAL RELATED PROCEEDING

United States District Court (D.N.J.):

United States v. Seale, No. 3:92-cr-372 (Dec. 1, 1992)

(original criminal judgment)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument..................................................................................... 11

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

Ajan v. United States, 731 F.3d 629 (6th Cir. 2013) ..... 15-17

Clark v. United States:

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

cert. denied, 144 S. Ct. 1382 (2024) .......................... 12

144 S. Ct. 1382 (2024) ...................................................... 11

Cody v. United States:

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

cert. denied, 142 S. Ct. 1419 (2022) .......................... 12

142 S. Ct. 1419 (2022) ...................................................... 11

Dupree v. Younger, 598 U.S. 729 (2023) .............................. 13

Fay v. Noia, 372 U.S. 391 (1963).......................................... 14

Gonzalez v. Thaler, 565 U.S. 134 (2012) ................................ 9

Kaziu v. United States,

108 F.4th 86 (2d Cir. 2024) ..................................... 15, 18, 19

The Monrosa v. Carbon Black Exp., Inc.,

359 U.S. 180 (1959) .......................................................... 19

New Haven Inclusion Cases, 399 U.S. 392 (1970) ............. 13

Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001) ...................... 21

United States v. Augustin, 16 F.4th 227

(6th Cir. 2021), cert. denied, 142 S. Ct. 1458 (2022)......... 17

United States v. Davis, 588 U.S. 445 (2019) ......................... 7

(III)

IV

Cases—Continued:

Page

United States v. Hadden,

475 F.3d 652 (4th Cir. 2007) ......................................... 15, 16

United States v. Jumah,

431 Fed. Appx. 494 (7th Cir. 2011) .................................... 21

United States v. Moreland, 175 F.3d 1021,

1999 WL 265286 (7th Cir. 1999) ........................................ 21

United States v. Peña, 58 F.4th 613 (2d Cir.),

cert. denied, 144 S. Ct. 147 (2023) ..................................... 17

Wainwright v. Sykes, 433 U.S. 72 (1977) ............................ 14

Williams v. United States,

150 F.3d 639 (7th Cir. 1998) ......................................... 20, 21

Statutes:

Hobbs Act, 18 U.S.C. 1951 ...................................................... 1

18 U.S.C. 875 ............................................................................ 2

18 U.S.C. 876 ............................................................................ 2

18 U.S.C. 924(c)........................................ 1, 2, 5, 7-9, 12, 15-19

18 U.S.C. 924(c)(3) (Supp. IV 1986) ....................................... 7

18 U.S.C. 924(c)(3)(B).............................................................. 7

18 U.S.C. 1952 .......................................................................... 2

28 U.S.C. 2253(a) ............................................................. 11, 13

28 U.S.C. 2253(c) .............................................................. 10, 11

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

28 U.S.C. 2253(c)(1)(B) .................................................... 11, 13

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

28 U.S.C. 2255 .............................................. 2, 6, 7, 9-15, 17-19

28 U.S.C. 2255(a) ................................................................... 11

28 U.S.C. 2255(b) ................................................. 11, 12, 15, 17

V

Miscellaneous:

Page

Catherine S. Manegold, Twisted Tale of a

Kidnapping And of Dreams Gone Wrong,

N.Y. Times, July 1, 1992, at A1 ........................................... 4

Office of the Pardon Att’y, U.S. Dep’t of Justice,

Search for a Case (Mar. 3, 2025), https://www.

justice.gov/pardon/search-clemency-case-status .............. 7

Charles Strum, Man Sentenced to Life in Killing of

Exxon Official, N.Y Times, Dec. 1, 1992, at B1 ................ 6

In the Supreme Court of the United States

No. 24-594

ARTHUR SEALE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The orders of the court of appeals (Pet. App. 1a-2a,

3a-4a) are unreported.

JURISDICTION

The amended order of the court of appeals was entered on September 23, 2024. The petition for a writ of

certiorari was filed on November 26, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the District of New Jersey, petitioner was

convicted on one count of conspiring to commit Hobbs

Act extortion, in violation of 18 U.S.C. 1951; one count

of Hobbs Act extortion, in violation of 18 U.S.C. 1951;

one count of carrying or using a firearm in furtherance

of a crime of violence, in violation of 18 U.S.C. 924(c);

(1)

2

one count of using the mail with intent to commit extortion, in violation of 18 U.S.C. 876; one count of using a

telephone with intent to commit extortion, in violation

of 18 U.S.C. 875; and two counts of traveling interstate

with intent to commit extortion, in violation of 18 U.S.C.

1952. 12/1/1992 Judgment 1. The district court sentenced petitioner to a total of 95 years of imprisonment,

which included a five-year consecutive sentence on the

Section 924(c) count, and a $1.75 million fine. Id. at 2-4.

The court of appeals vacated the fine, and remanded for

resentencing, but otherwise affirmed. 20 F.3d 1279. At

resentencing, the district court adjusted the fine but did

not alter the terms of imprisonment. See 04-cv-3830

D. Ct. Doc. 12, at 1 (Dec. 12, 2005) (2005 D. Ct. Op.).

In 2019, the court of appeals granted petitioner authorization to file a successive motion under 28 U.S.C.

2255 to challenge his Section 924(c) conviction. 19-2888

C.A. Order (Oct. 18, 2019). In December 2022, the district court granted petitioner’s authorized Section 2255

motion in part and denied it in part, Pet. App. 29a-44a,

ordering that petitioner’s Section 924(c) conviction and

its five-year consecutive sentence be vacated, directing

that an amended criminal judgment be entered to effectuate that relief, and denying petitioner’s request for a

full resentencing, id. at 45a-46a. Four days later, in

January 2023, the court entered an amended criminal

judgment reflecting those changes. Id. at 8a-16a.

Petitioner appealed both the order resolving his Section 2255 motion (Appeal No. 23-1089) and the amended

criminal judgment (Appeal No. 23-1088). Pet. App. 47a.

In the appeal from the order resolving petitioner’s Section 2255 motion, the court of appeals denied petitioner’s request for a certificate of appealability (COA).

Id. at 20a-21a. The court of appeals subsequently dis-

3

missed petitioner’s appeal from the amended criminal

judgment for lack of jurisdiction. Id. at 1a-2a (amended

order); see id. at 3a-4a (original order). The petition in

this case addresses petitioner’s appeal from the amended criminal judgment.

1. a. In late 1991, petitioner, a former security officer for Exxon Corporation and a nine-year police veteran, developed a scheme to kidnap the president of an

Exxon subsidiary, Sidney J. Reso, to obtain a large ransom. 20 F.3d at 1281; see Sent. Tr. 12-13, 15 (Nov. 30,

1992). Petitioner and his wife prepared for the kidnaping for three months, conducting surveillance at Reso’s

home to understand his schedule and transportation options and building a coffin-like box in which to put Reso

after capturing him. 20 F.3d at 1281. Petitioner also

researched environmental causes to concoct a false motive for the kidnaping. Ibid.

On the morning of April 29, 1992, petitioner and his

wife abducted Reso as he left home for work. 20 F.3d

at 1281. When Reso reached the foot of his driveway to

collect his morning newspaper, petitioner exited a van

driven by his wife and grabbed Reso at gunpoint. 925686 Gov’t C.A. Br. 11 (May 12, 1993), available at 1993

WL 13120477. Reso struggled, and petitioner shot him

in the arm. Ibid.; see 20 F.3d at 1281. Rather than end

the scheme, petitioner and his wife continued the kidnaping, handcuffing Reso and taping his eyes and

mouth shut with duct tape, locking him in the coffinsized box, and keeping Reso in the box for four days

with no food and little water at a self-serve storage unit,

until Reso died while alone in the box. Sent. Tr. 70, 88

(court findings); see 92-5686 Gov’t C.A. Br. 10-15; see

also 20 F.3d at 1281.

4

Notwithstanding Reso’s death, petitioner and his

wife continued to execute their scheme for another six

weeks. 20 F.3d at 1281. Posing as an environmental

group named the “Fernando Pereira Brigade, Warriors

of the Rainbow,” they demanded an $18.5 million ransom

and led the Reso family, Exxon employees, the Federal

Bureau of Investigation, and the general public to “believe that Reso was still alive but would be ‘eliminated’

if their instructions were not followed.” Ibid. Petitioner’s heavily publicized scheme triggered “the largest nationwide manhunt since the high-profile kidnapping of Patricia Hearst.” Catherine S. Manegold, Twisted

Tale of a Kidnapping And of Dreams Gone Wrong,

N.Y. Times, July 1, 1992, at A1, B4.

In June 1992, petitioner and his wife were apprehended before any ransom was paid. 20 F.3d at 1281.

b. After petitioner’s wife cooperated with the authorities and led the police to the shallow grave in which

petitioner had buried Reso, petitioner pleaded guilty

without a plea agreement to all seven counts of his federal indictment. 20 F.3d at 1281-1282; see 92-5686 Gov’t

C.A. Br. 2-3. At sentencing, the district court emphasized that petitioner had committed a “variety of serious

heinous crimes” that were “thoroughly evil,” finding “no

other word for it.” Sent. Tr. 87. The court found petitioner’s crimes were “cold [and] calculating,” reflected

“unmitigated evil,” and exhibited such “casual amoral

brutality and viciousness [that they] shocked even the

most jaded.” Id. at 89.

In addition to recounting the circumstances of Reso’s

coffin-like confinement, the district court observed that

Reso’s “teeth [had been] broken” and “knocked down

his throat.” Sent. Tr. 88; see id. at 70. The court also

emphasized the degree to which Reso’s family had suf-

5

fered: petitioner had “demand[ed] that [Reso’s] 57year-old wife * * * personally appear on television” to

“plead for [Reso’s] life”; required that “she and the family personally accompany the ransom money and answer the telephone”; and made the family and “the

world” listen to Reso’s “last words”—“forced and compelled ransom directions” that “sen[t] [Reso’s] family

around at high speed through the countryside” with “a

maze of directions in writing and over the telephone” to

“deliver a huge ransom in cash.” Id. at 65, 87-88. “The

planning and coldness behind all of this,” the court

stated, “defies imagination” and was “unique in its cruelty.” Id. at 65, 88.

The sentencing court determined that the “coldblooded, calculated and deliberate” nature of petitioner’s crimes and “[t]he magnitude of [his] acts” “require[d] that the [c]ourt deal with [petitioner] as severely as the law allows.” Sent. Tr. 87, 89. The court

emphasized that its “intent” was that “[petitioner] be

imprisoned for the rest of [his] life without parole” so

that he would “never be free.” Id. at 91. The court imposed the statutory maximum sentence for each of petitioner’s counts of convictions and ran each sentence

“consecutive with one another” to produce a total sentence of 95 years of imprisonment, including the fiveyear consecutive sentence for petitioner’s Section 924(c)

conviction. See id. at 91-92.

On direct appeal, the court of appeals upheld petitioner’s prison sentence, 20 F.3d at 1282 n.3, but vacated the fine and remanded for resentencing, id. at

1290.1 At resentencing, the district court adjusted the

Justice Alito was a judge on the court of appeals when petitioner’s appeal was pending but was not on the panel that resolved

that appeal, and no petition for rehearing was filed.

1

6

fine, but it did not alter the terms of imprisonment. See

2005 D. Ct. Op. 2.

c. While petitioner’s federal case was pending, the

State of New Jersey prosecuted petitioner for his related state-law kidnaping and murder offenses; petitioner pleaded guilty; and, in 1992, after the district

court sentenced petitioner, the state court sentenced

petitioner to two terms of imprisonment to run consecutively to his 95-year federal sentence: a 30-year term

of imprisonment (for first-degree kidnaping) and a consecutive term of life imprisonment (for first-degree felony murder), with no parole eligibility until after petitioner has served 45 years of his state sentences. Judgment of Conviction at 1, State v. Seale, No. 92001345

(N.J. Super. Ct. Morris Cnty. Dec. 1, 1992) (N.J. Judgment); see 92-cr-372 D. Ct. Doc. 90, at 15 (July 31, 2020);

Charles Strum, Man Sentenced to Life in Killing of

Exxon Official, N.Y Times, Dec. 1, 1992, at B1, B7.

In his statement of reasons for those sentences, the

state judge noted that petitioner would “die in federal

prison” if his federal sentence “is fully implemented.”

N.J. Judgment 2-A. But the judge acknowledged that

“it is possible that [petitioner] may some day be released

from federal prison” and made clear that, “[i]f so,” he

was imposing consecutive state sentences for the “especially cruel” kidnaping and murder because it is “imperative that [petitioner] shall never under any circumstances be at liberty in our society.” Ibid.

2. Petitioner subsequently filed a series of unsuccessful motions to vacate his federal sentence under 28

U.S.C. 2255. See 04-cv-3830 D. Ct. Order (Dec. 12, 2005)

(denying motion); 07-cv-4356 D. Ct. Doc. 12 (Feb. 27,

2007) (withdrawing motion); 18-cv-9075 D. Ct. Order

7

(Mar. 26, 2019) (dismissing motion). His repeated requests for clemency have thus far also been denied. 2

In 2019, the court of appeals granted petitioner’s application to file a successive Section 2255 motion to challenge his Section 924(c) conviction based on this Court’s

then-recent decision in United States v. Davis, 588 U.S.

445 (2019), which held that Section 924(c)(3)(B)’s definition of a predicate “crime of violence” is unconstitutionally vague, id. at 470. See 19-2888 C.A. Order 1 (Oct. 18,

2019); 19-2888 C.A. Mot. to File Second or Successive

Section 2255 Mot. 1-2 (Aug. 26, 2019); see also 18 U.S.C.

924(c)(3) (Supp. IV 1986).

On December 30, 2022, the district court granted petitioner’s Section 2255 motion in part and denied it in

part. Pet. App. 45a-46a. The court vacated petitioner’s

“[Section] 924(c) conviction and its accompanying fiveyear sentence” and fine, but denied petitioner’s “request for a full resentencing.” Id. at 46a & n.1; see id.

at 41a-43a. The court instead ordered that an “amended

judgment” be entered in petitioner’s criminal case in

which the “sentences on the remaining counts of [petitioner’s] conviction shall remain intact and undisturbed.” Id. at 46a.

In its accompanying opinion (Pet. App. 29a-44a), the

district court explained that while petitioner was entitled to vacatur of his Section 924(c) conviction in light of

Davis, id. at 34a-41a, an “entirely new sentencing” to

allow reconsideration of the total sentence “under the

The President denied petitioner’s 2003 and 2019 clemency petitions on November 23, 2010, and December 28, 2023. See Office of

the Pardon Att’y, U.S. Dep’t of Justice, Search for a Case (Mar. 3,

2025) (petition status reflected in downloadable “case search data

file”), https://www.justice.gov/pardon/search-clemency-case-status.

Petitioner’s 2024 clemency request remains pending. See ibid.

2

8

sentencing package doctrine” was unwarranted, id. at

41a. The court stated that when one or more counts of

conviction are vacated, the sentencing-package doctrine

allows for resentencing on the remaining counts when

necessary to accurately reflect the sentencing court’s

intent regarding the appropriate total punishment for

the defendant’s crimes. Id. at 41a-42a. The court explained that the “thrust of the doctrine” is to authorize

a court to revisit the overall sentence when the original

“sentence on the remaining counts” was “interdependent” with the “sentence on the vacated count.” Ibid.

The court observed, however, that a full resentencing is

unwarranted “where the sentencing judge [has] already

imposed ‘the highest sentence available’ on the remaining counts of the conviction,” because such a sentence

reflects that the subsequent “vacatur of a consecutive

§ 924(c) conviction d[id] not unravel the package imposed.” Id. at 42a (citation omitted).

In this case, the district court found the sentencing

judge’s original sentencing intent to be “abundantly

clear,” where the judge had chosen “ ‘the highest sentence available’ ” by imposing “the applicable statutory

maximum sentence on each count” of conviction and

then directing that all of those sentences were to “run

consecutively” to each other. Pet. App. 42a-43a. The

court observed that the sentencing judge had emphasized that he had chosen that maximal sentence to “ensure[] that [p]etitioner would be ‘imprisoned for the rest

of his life without parole’ ” and thus reflected his “ ‘intent’ ” that petitioner should “ ‘never be free.’ ” Id. at 42a

(quoting Sent. Tr. 91) (brackets omitted).

The district court thus found that the vacatur of the

five-year consecutive sentence for an invalid Section

924(c) count did “not ‘unravel’ an interdependent sen-

9

tencing plan.” Pet. App. 43a. And the court explained

that given that “the applicable maximums [had already

been] imposed,” a full resentencing was unnecessary

because it would not provide the court any “opportunity

to impose a harsher sentence on the remaining counts

in order to rebalance [p]etitioner’s sentence.” Ibid. The

court added that any “lesser sentence on [p]etitioner’s

remaining counts” would result in a “windfall” to petitioner. Ibid.

Four days later, on January 3, 2023, the district court

entered an amended judgment on the docket for petitioner’s criminal case (No. 92-cr-372), reflecting the vacatur of petitioner’s conviction and sentence on the Section 924(c) count and maintaining the remaining consecutive sentences totaling 90 years. Pet. App. 8a-11a.

3. Petitioner filed a notice of appeal, which was

placed on the dockets for his Section 2255 proceeding

(No. 19-cv-21016) and criminal case (No. 92-cr-372), in

which he stated that he was appealing both “the order

granting in part and denying in part his [Section 2255]

petition * * * in Civil Number 19-21016” and the amended “judgment * * * in Criminal Number 92-372.” Pet.

App. 47a. The court of appeals docketed petitioner’s appeal from the Section 2255 order as Appeal No. 23-1089

and his appeal from the amended criminal judgment

as Appeal No. 23-1088. See id. at 20a-21a. Under 28

U.S.C. 2253(c)(1) “[u]nless a circuit justice or judge issues a [COA], an appeal may not be taken to the court

of appeals from * * * (B) the final order in a proceeding

under section 2255.” 28 U.S.C. 2253(c)(1). As a result

of that provision, “federal courts of appeals lack jurisdiction to rule on the merits of appeals” from such orders “until a COA has been issued.” Gonzalez v. Thaler,

565 U.S. 134, 142 (2012) (citation omitted).

10

a. In Appeal No. 23-1089, the court of appeals partially remanded the Section 2255 proceeding for the district court to decide whether a COA should issue. 231089 C.A. Order (Jan. 31, 2023).

The district court denied a COA on remand. Pet.

App. 22a-28a. The court explained that, under 28 U.S.C.

2253(c), a COA may be granted only if the applicant

“makes ‘a substantial showing of the denial of a constitutional right.’ ” Pet. App. 26a. And the court found that

petitioner failed to make that showing because petitioner “seeks to appeal only the denial of a full resentenc[ing]” yet made no “substantial showing that the

court’s denial of [such] a resentencing amounted to the

denial of a constitutional right.” Id. at 27a. The court

emphasized that it had “considerable discretion in determining whether a resentencing is required”; that

“resentencing is [not] necessary [here] to rebalance the

remaining counts” given the “abundantly clear” intent

of the original sentencing judge; and that no constitutional provision requires “a full resentencing * * * following the vacation of a single count of conviction.” Id.

at 27a-28a.

The court of appeals (in No. 23-1089) then likewise

denied a COA. Pet. App. 20a-21a. The court observed

that it “may issue a [COA] ‘only if the applicant has

made a substantial showing of the denial of a constitutional right,’ ” and it found that “[ j]urists of reason

would not debate the District Court’s decision to not

hold a resentencing hearing.” Id. at 20a (quoting 28

U.S.C. 2253(c)(2)). Petitioner’s petition for a writ of certiorari from that order denying a COA is pending in this

Court. See No. 23-7806 (filed June 20, 2024).

b. Subsequently, in Appeal No. 23-1088, the court of

appeals dismissed petitioner’s appeal from his amended

11

criminal judgment. Pet. App. 3a. The court later clarified that it had dismissed the appeal for “lack of jurisdiction.” Id. at 1a. Petitioner’s certiorari petition at issue here (in No. 24-594) seeks review of that order.

ARGUMENT

Petitioner contends (Pet. 20-25) that the court of appeals erred in dismissing his appeal for lack of jurisdiction on the theory that 28 U.S.C. 2253(c)’s COA requirement does not apply where a prisoner appeals from a

corrected criminal judgment that is entered as the relief

on a postconviction claim under 28 U.S.C. 2255. The

court of appeals correctly dismissed petitioner’s appeal

from his amended criminal judgment. Any disagreement in the courts of appeals on the question presented

is limited to a specific subset of collateral attacks and

would not warrant review in this case because petitioner

would not be entitled to any more Section 2255 relief

in any court of appeals. The Court has denied review

in other cases presenting similar issues. See Clark v.

United States, 144 S. Ct. 1382 (2024) (No. 23-5950);

Cody v. United States, 142 S. Ct. 1419 (2022) (No. 216099). The same result is warranted here.

1. In “a proceeding under section 2255 before a district judge,” the “final order” is “subject to review, on

appeal.” 28 U.S.C. 2253(a). But “the final order in a

proceeding under section 2255” cannot be appealed

“[u]nless a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. 2253(c)(1)(B). That COA requirement applies to the remedial decision that petitioner is attempting to challenge on appeal.

A proceeding under Section 2255 necessarily includes the filing of a motion as authorized by Section

2255(a) and each of the procedural steps that Section

2255(b) then directs the district court to take with re-

12

spect to that motion. Cody v. United States, 998 F.3d

912, 915-916 (11th Cir. 2021), cert. denied, 142 S. Ct.

1419 (2022). One of those steps is the court’s selection

of one of the four types of relief that Section 2255(b) authorizes. Id. at 916; accord Clark v. United States, 76

F.4th 206, 211 (3d Cir. 2023), cert. denied, 144 S. Ct.

1382 (2024). The final sentence of Section 2255(b) provides that if the court finds that a prisoner’s sentence is

unlawful, the court, in addition to vacating and setting

aside the judgment, “shall [1] discharge the prisoner or

[2] resentence him or [3] grant a new trial or [4] correct

the sentence as may appear appropriate.” 28 U.S.C.

2255(b).

In this case, the district court granted Section 2255

relief to petitioner but rejected his request that it “resentence him,” finding instead that the “appropriate”

remedy under Section 2255(b) was to directly “correct

[his] sentence” by eliminating the invalid Section 924(c)

conviction and its associated sentence while leaving the

other sentences intact, 28 U.S.C. 2255(b). See Pet. App.

29a, 43a. The court thus ordered the entry of an “amended [criminal] judgment” reflecting that the “[Section]

924(c) conviction and its accompanying five-year [consecutive] sentence are vacated” and that petitioner’s

“sentences on the remaining counts of conviction shall

remain intact and undisturbed.” Id. at 46a (capitalization omitted); see id. at 45a-46a (order). And such a corrected judgment was accordingly entered on the docket

of petitioner’s criminal case. See id. at 8a-11a.

There is no sound way to conceive of the Section 2255

proceeding that would allow petitioner to take an appeal

to challenge the form of relief granted on his Section

2255 claim without first obtaining a COA. Most obviously, if the corrected judgment itself was the appeala-

13

ble “final order in the Section 2255 proceeding,” then

petitioner would be required to obtain a COA to appeal

it. 28 U.S.C. 2253(c)(1)(B). If, instead, the order directing that a corrected judgment be entered, but that other

relief be denied, was the appealable “final order,” then

appealing that order required a COA. Ibid. And contrary to what the current certiorari petition appears to

contend (Pet. 20-25), petitioner cannot circumvent the

COA requirement on the theory that the corrected

judgment is not part of the Section 2255 proceeding.

On that theory, an appeal of the corrected judgment

would not encompass the relief ordered in the Section

2255 proceeding at all. Although a final order generally

subsumes prior orders in the same proceeding for purposes of an appeal, Dupree v. Younger, 598 U.S. 729, 735

(2023), that principle provides petitioner no shelter because, under his theory (Pet. 21), the same is not true

for a prior Section 2255 order if it is an order in a civil

case that is itself independent from the criminal case in

which an amended judgment is later entered. Thus, an

appeal as of right from the corrected judgment, on the

theory that it is part of a separate criminal case, would

not subsume the final order in the Section 2255 proceeding, or the election of remedy therein—which was independently appealable. See 28 U.S.C. 2253(a). Instead,

in the absence of a successful appeal of that final order

—which would be subject to the COA requirement, see

28 U.S.C. 2253(c)(1)(B)—an appeal as of right from the

corrected judgment would have to take the relief ordered by the district court in the Section 2255 proceeding as a given. See, e.g., New Haven Inclusion Cases,

14

399 U.S. 392, 481 (1970) (court order remains binding on

party who “took no appeal from the order”). 3

The court of appeals therefore correctly dismissed

petitioner’s appeal of the amended criminal judgment at

issue in this certiorari petition. Pet. App. 1a, 3a. Either

petitioner has appealed from the final order in a Section

2255 proceeding that lacks a COA, or he has appealed

from a different proceeding altogether that seeks to

challenge the final order in a Section 2255 proceeding

that has already concluded (still without a COA). Either

way, petitioner’s challenge was not one that the court of

appeals could entertain.

And for similar reasons, the court of appeals correctly dismissed petitioner’s appeal of the order directing the entry of a corrected judgment, which is the subject of his other pending certiorari petition. As explained in the government’s brief in opposition to that

petition, assuming that order was the final order in a

Section 2255 proceeding, it required a COA—which petitioner has never obtained. 23-7806 Br. in Opp. at 1217 (Nov. 22, 2024).

Petitioner suggests (Pet. 21) that “a state prisoner in [petitioner’s ] position would not need a COA” after receiving a federal

habeas order “vacat[ing]” his state-court criminal judgment. But

the order of a federal court in a habeas proceeding would not in itself

directly vacate or otherwise alter a state-court judgment; instead, it

would grant a writ of habeas corpus. See Pet. 21 n.8 (citing Fay v.

Noia, 372 U.S. 391, 430-431 (1963), overruled in part on other

grounds by Wainwright v. Sykes, 433 U.S. 72 (1977)). And if a state

court elects to vacate its own criminal judgment and to conduct a

resentencing of a state prisoner in the wake of a federal court’s conditional writ of habeas corpus, the prisoner would be differently situated from petitioner, whose Section 2255 order directly corrected

his sentence.

3

15

2. Petitioner asserts (Pet. 9-11) that the decision of

the court of appeals in this case conflicts with decisions

by the Second, Fourth, and Sixth Circuits, which have

allowed a successful Section 2255 movant to challenge a

district court’s decision “declining to resentence him”

by appealing (without a COA) the new criminal judgment entered as a result of the Section 2255 order. Pet.

9; see Pet. 9-11 (citing Kaziu v. United States, 108 F.4th

86 (2d Cir. 2024); Ajan v. United States, 731 F.3d 629

(6th Cir. 2013); and United States v. Hadden, 475 F.3d

652 (4th Cir. 2007)). But he does not identify any disagreement that would extend beyond the limited subset

of cases that involve sentences that are directly corrected without a resentencing proceeding (as opposed

to granting another form of postconviction relief, see 28

U.S.C. 2255(b), or denial of postconviction relief altogether ). And any further review is unwarranted in this

case, because it is far from clear that any court of appeals permitting such an appeal would conclude that petitioner was entitled to more relief than he received.

a. The district court here determined in its Section

2255 ruling (Pet. App. 29a-44a) that “a full resentencing

[would be] inappropriate” as a remedy for the unconstitutionality of petitioner’s Section 924(c) conviction and

its five-year consecutive sentence, because eliminating

the Section 924(c) conviction and sentence did “not ‘unravel’ an interdependent sentencing plan.” Id. at 43a.

The court emphasized that the sentencing court had

been “abundantly clear” that it had imposed “ ‘the highest sentence available’ ”—choosing “the applicable statutory maximum sentence on each count” of conviction

and running all sentences “consecutive[ly]”—in order to

“ensure[] that [p]etitioner would be ‘imprisoned for the

rest of his life.’ ” Id. at 42a (citations and brackets omit-

16

ted); see pp. 4-5, supra (discussing sentencing). And

because the remaining terms of imprisonment were already at the maximum, a full resentencing would not

permit “a harsher sentence on the remaining counts in

order to rebalance [p]etitioner’s sentence” to compensate for the removal of the consecutive term for the Section 924(c) offense. Pet. App. 43a. There is no sound

basis for concluding that the Second, Fourth, or Sixth

Circuits would require resentencing in these circumstance.

In United States v. Hadden, the Fourth Circuit determined that a district court had not abused its discretion in choosing “to ‘correct’ [a] sentence” by vacating

the defective Section 924(c) portion thereof “in lieu of

conducting a formal ‘resentencing’ ” where (a) “the Government did not seek” to, and the district court “did

not, in fact, increase,” the prisoner’s remaining original

sentences in the original sentencing proceedings, and

(b) “the district court itself—by striking the § 924(c)

sentence and reentering the remaining sentence—

indicated that it was satisfied with the resulting

sentence.” 475 F.3d at 668-669 (explaining that the

“sentence-package theory of sentencing” does not require a “formal ‘resentencing’ ” in that context) (brackets omitted). As just explained, that is the case here.

See Pet. App. 42a-43a.

The Sixth Circuit, in Ajan v. United States, observed

that a district court is “certainly free” to “choose a correction over a different remedy” by simply vacating the

part of a sentence based on an invalid Section 924(c)

conviction and leaving the remaining sentence unchanged. 731 F.3d at 633. The Sixth Circuit remanded

Ajan’s case to district court only because the district

court’s decision left it unclear “whether the district

17

court exercised its [Section 2255] discretion or thought

it had none.” Id. at 633-634. And when a district court

does exercise its discretion to vacate a defective Section

924(c) portion of the sentence and leaves the rest unchanged, the Sixth Circuit does not overturn that decision where the district court determines that “vacating

[the Section] 924(c) sentence did ‘not impact the sentences

[the prisoner] received on the other counts.’ ” United

States v. Augustin, 16 F.4th 227, 232 (6th Cir. 2021) (citation omitted), cert. denied, 142 S. Ct. 1458 (2022).

In this case, the district court expressly recognized

that it had “considerable discretion in determining

whether a resentencing is required.” Pet. App. 28a.

And it exercised that “ ‘broad and flexible power’ ” by

determining that “the proper course ‘following [petitioner’s] successful [Section] 2255 motion’ ” was to correct petitioner’s sentence rather than hold a full resentencing. Id. at 41a-43a (citation omitted). Nothing indicates that the Sixth Circuit would find that discretionary determination to be impermissible.

Nor is there any such indication in the Second Circuit, whose decision in United States v. Peña, 58 F.4th

613, cert. denied, 144 S. Ct. 147 (2023), agreed with the

Sixth Circuit that Section 2255(b)’s “plain text” “vests

[a] district court[] with discretion to select the appropriate relief from a menu of options” after it vacates a

conviction under Section 2255, id. at 619-620 (finding

Augustin’s “reasoning to be persuasive”). And Peña

went on to explain that a district court does not abuse

its discretion in declining to conduct a full resentencing

where such a “resentencing would have been ‘strictly

ministerial,’ serving simply to delete sentences on the

now-vacated counts.” Id. at 623. The district court permissibly found that to be the case here.

18

Petitioner’s reliance (Pet. 11, 17) on Kaziu v. United

States is misplaced. There, the original sentencing judge

imposed four concurrent prison terms of 27, 15, 15, and

27 years for the four counts of conviction, yielding a total term of 27 years of imprisonment—well below statutory maximum term of life imprisonment for two of the

counts. 108 F.4th at 88. A different district court judge

later granted Section 2255 relief by vacating a Section

924(c) conspiracy conviction and its 27-year term of imprisonment. Id. at 90; see id. at 88. The judge then

“chose to reweigh the [Section] 3553(a) sentencing factors” for the remaining 27-year sentence based on paper submissions and reduce it to 25 years. Id. at 90, 94.

The Second Circuit concluded that the judge abused his

discretion in declining to conduct a full resentencing because, in significant part, “the sentencing transcript” did

not sufficiently reveal “the rationale behind the original

sentence” (imposed by a different judge), so as to refute

the possibility that “the now vacated conviction[] may

have inflated Kaziu’s sentences on the remaining convictions.” Id. at 92.

Here, however, the sentencing record could not be

more clear. The sentencing judge sentenced petitioner

to the statutory maximum term for every count of conviction and ran each term consecutively to each other to

produce “ ‘the highest sentence available’ ” and “ensure[]

that ‘[p]etitioner would be ‘imprisoned for the rest of his

life.’ ” Pet. App. 42a-43a (citations and brackets omitted). No relief is warranted, and petitioner fails to

demonstrate that any circuit would provide it.

b. Petitioner suggests (Pet. 16-17) that the Court

should disregard the problems with his “ultimate merits

case” and resolve the jurisdictional question that he

presents. But this Court grants certiorari to “decide[]

19

questions of public importance” and “resolv[e] conflicts

among the Courts of Appeals” “in the context of meaningful litigation” in which the Court’s resolution of those

questions could plausibly affect the outcome in the case.

The Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180,

184 (1959).

Petitioner provides no plausible basis for concluding

that he would obtain a lesser sentence if his appeal were

allowed to proceed. Petitioner suggests (Pet. 17) that

he might show that the district court abused its discretion by declining to grant a full resentencing because

“everything that is relevant to reaching a proper

sentence”—including rehabilitation—is also “relevant

to the decision of whether to correct or to resentence.”

Ibid. (quoting Kaziu, 108 F.4th at 94 n.7). But the decision on which petitioner relies does not support that

view. Kaziu found an abuse of discretion based on the

“combin[ation]” of “two factors” that—when considered “in tandem”—were deemed to “limit the district

court’s discretion to dispense with plenary resentencing”: (1) the judge who granted Section 2255 relief did

not conduct the original sentencing and did not know

“the rationale behind the original sentence,” which the

record did not reveal and, in addition, (2) “plausible arguments of changed circumstances” were presented

that could have affected the relevant analysis. Kaziu,

108 F.4th at 92, 94 (emphasis added).

The record here, by contrast, is “abundantly clear”

that eliminating petitioner’s Section 924(c) conviction

and sentence would not have affected his other sentences, which, if reduced, would provide petitioner an

unwarranted “windfall.” Pet. App. 42a-43a. Moreover,

even if petitioner’s federal sentence (with more than

four decades remaining) were reduced to such an extent

20

as to lead to his release from federal imprisonment, any

such victory would be Pyrrhic, because petitioner (who

is now 78) must still serve his consecutive state-court

life and 30-year sentences for murdering and kidnaping

Reso, which require that he serve at least 45 years of

his state prison sentences after finishing his federal

sentence before he could become eligible for state parole. See p. 6, supra.

3. Finally, petitioner’s argument (Pet. 25) that he

was in fact entitled to a COA revisits the second question presented in his other petition for a writ of certiorari, 23-7806 Pet. at ii, 19-21, not any issue that he has

raised as an independent question here, Pet. i, 1 (seeking review of orders at Pet. App. 1a-4a). The other petition, however, did not argue that a circuit conflict warranted review on the COA question. 23-7806 Pet. at 1921. The government’s brief in opposition accordingly

emphasized that “petitioner does not identify a division

of authority that would warrant this Court’s review of

[that] question,” 23-7806 Br. in Opp. at 22, and petitioner declined to file a reply. In any event, to the extent that petitioner is entitled to supplement the other

petition’s argument on that issue with the new argument

in the petition here, his argument is unsound.

Contrary to petitioner’s contention (Pet. 11-12, 25),

Williams v. United States, 150 F.3d 639 (7th Cir. 1998),

does not reflect a division of authority on the COA question. Petitioner quotes (Pet. 11, 25) language from Williams suggesting that a movant “might” establish an

entitlement to a COA by “showing that, had his constitutional rights been respected at the time of conviction,

the sentence imposed at the time would have been

lower.” 150 F.3d at 641. But because the court found

that “Williams cannot make a showing of this kind,” it

21

neither resolved whether such a showing would actually

be sufficient, nor elaborated on what would qualify as

such a showing. Ibid. And in the 26 years since Williams, only three court of appeals decisions have cited

Williams’s discussion of the COA standard, all for different propositions not pertinent here.4

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

ANN O’CONNELL ADAMS

Attorneys

APRIL 2025

United States v. Jumah, 431 Fed. Appx. 494, 496-497 (7th Cir.

2011) (unpublished); Owens v. Boyd, 235 F.3d 356, 358 (7th Cir.

2001); United States v. Moreland, 175 F.3d 1021, 1999 WL 265286,

at *3 (7th Cir. 1999) (Tbl.).

4