Petition for Writ of Certiorari — Fred Davis Clark, Jr., Petitioner v. United States

Supreme Court briefApr 16, 2026

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No.

In the Supreme Court of the United States

_________

FRED DAVIS CLARK, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

THOMAS A. BURNS

Counsel of record

BURNS, P.A.

301 W. Platt St., Ste. 137

Tampa, FL 33606

(813) 642-6350

tburns@burnslawpa.com

April 16, 2026

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether, as this Court suggested in Slack v.

McDaniel, 529 U.S. 473, 484 (2000), the existence of a

circuit split alone, notwithstanding contrary home circuit precedent, can demonstrate that reasonable jurists could find a claim debatable for purposes of

granting a certificate of appealability under 28 U.S.C.

§ 2253(c)(2). (A 3-3 circuit split.)

2. Whether collateral challenges to noncustodial

punishment, such as forfeiture orders or restitution

awards, can be cognizable under § 2255 if the financial penalty is sufficiently severe that it restrains liberty. (A 5-2 circuit split.)

PARTIES TO THE PROCEEDING

The caption identifies all parties in this case.

Fred Davis Clark, Jr. is the petitioner.

The United States of America is the respondent.

RELATED CASES

United States v. Clark, No. 4:13-cr-10034 (S.D. Fla.).

Judgment entered February 16, 2016.

United States v. Clark, No. 16-10811 (11th Cir.).

Judgment entered May 18, 2021.

United States v. Clark, No. 4:23-cr-10027 (S.D. Fla.).

Judgment entered February 18, 2025.

United States v. Clark, No. 25-10955 (11th Cir.).

Judgment entered October 28, 2025.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..............................

PARTIES TO THE PROCEEDING ..................

RELATED CASES .............................................

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

PETITION FOR A WRIT OF CERTIORARI ...

OPINION BELOW ............................................

JURISDICTION ................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............................

STATEMENT .....................................................

REASONS FOR GRANTING THE

PETITION ..........................................................

I. There’s a 3-3 split whether a circuit split

alone can establish that reasonable jurists could find a claim debatable for

purposes of granting a certificate of appealability ..................................................

II. There’s a 5-2 split whether collateral

challenges to noncustodial punishment

are cognizable per § 2255 if the financial

penalty is so severe that it restrains liberty .............................................................

CONCLUSION ..................................................

APPENDIX A: Order of the United States

District Court for the Southern District of

Florida (Feb. 18, 2025) ......................................

APPENDIX B: Order of the United States

Court of Appeals for the Eleventh Circuit

(Oct. 28, 2025) ....................................................

APPENDIX C: Order of the United States

Court of Appeals for the Eleventh Circuit

(Dec. 17, 2025)....................................................

TABLE OF AUTHORITIES

Page

CASES:

Allen v. Ornoski,

435 F.3d 946 (9th Cir. 2006) ........................

Allen v. Stephens,

805 F.3d 617 (5th Cir. 2015) ........................

Allensworth v. Roe,

2007 WL 9770695 (C.D. Cal. 2007) .............

Arnaiz v. Warden, Fed. Satellite Low,

594 F.3d 1326 (11th Cir. 2010) ....................

Barnickel v. United States,

113 F.3d 704 (7th Cir. 1997) ........................

Bearden v. Georgia,

461 U.S. 660 (1983) ......................................

Blaik v. United States,

161 F.3d 1341 (11th Cir. 1998) ....................

Bowe v. United States,

146 S. Ct. 447 (2026) ....................................

Bradway v. Tilton,

2008 WL 447509 (S.D. Cal. 2008) ...............

Brown v. Davenport,

596 U.S. 118 (2022). .....................................

Buck v. Davis,

580 U.S. 100 (2017) ...................................... 9, 19

Dickinson v. Shinn,

2020 WL 587850 (D. Ariz. 2020) .................

Ellingburg v. United States,

146 S. Ct. 564 (2025) ....................................

Franklin v. Lucero,

2021 WL 4595175 (10th Cir. 2021) .............

Gonzalez v. Thaler,

565 U.S. 134 (2012) ......................................

Gonzalez v. United States,

792 F.3d 232 (2d Cir. 2015) .........................

Gordon v. Sec’y, Dep’t of Corr.,

479 F.3d 1299 (11th Cir. 2007) ....................

Hamilton v. Sec’y, Fla. Dep’t of Corr.,

793 F.3d 1261 (11th Cir. 2015) ............. 10–11, 20

Harbison v. Bell,

556 U.S. 180 (2009) ......................................

Hensley v. Mun. Court, San Jose

Milpitas Judicial Dist.,

411 U.S. 345 (1973) ......................................

Hester v. United States,

586 U.S. 1104 (2019) ....................................

Hohn v. United States,

524 U.S. 236 (1998) ......................................

3, 9

In re Hodges,

882 F.3d 1107 (Fed. Cir. 2018) ....................

Jackson v. Modly,

949 F.3d 763 (D.C. Cir. 2020) ......................

Jennings v. Stephens,

574 U.S. 271 (2015) ......................................

Johnson v. Vandergriff,

143 S. Ct. 2551 (2023) ..................................

Jones v. Cunningham,

371 U.S. 236 (1963) ......................................

vii

Jones v. Gov’r of Fla.,

975 F.3d 1016 (11th Cir. 2020) ....................

Jones v. Hendrix,

599 U.S. 465 (2023) ......................................

Jordan v. Epps,

756 F.3d 395 (5th Cir. 2014) ........................

Jordan v. Fisher,

135 S. Ct. 2647 (2015) ..................................

Joseph v. United States,

574 U.S. 1038 (2014) ....................................

Justices of Boston Mun. Ct. v. Lydon,

466 U.S. 294 (1984) ..................................... 25–26

Kamana’o v. Frank,

2010 WL 1783560 (D. Haw. 2010) ...............

Kaminski v. United States,

339 F.3d 84 (2d Cir. 2003) .......................... 21–22

Lambright v. Stewart,

220 F.3d 1022 (9th Cir. 2000) ......................

Lambrix v. Sec’y, Fla. Dep’t of Corr.,

851 F.3d 1158 (11th Cir. 2017) ....................

Lawrence v. Florida,

421 F.3d 1221 (11th Cir. 2005) ....................

Lozada v. Deeds,

498 U.S. 430 (1991) ......................................

Mamone v. United States,

559 F.3d 1209 (11th Cir. 2009) ....................

McGee v. McFadden,

588 U.S. 923 (2019) ...................................... 9, 14

Miller-El v. Cockrell,

537 U.S. 322 (2003) ...................................... 9, 19

viii

Mitchell v. United States,

43 F.4th 608 (6th Cir. 2022) ........................

Payton v. Davis,

906 F.3d 812 (9th Cir. 2018) ........................

Ratliff v. United States,

999 F.2d 1023 (6th Cir. 1993) ......................

Reilly v. City of Harrisburg,

858 F.3d 173 (3d Cir. 2017) .........................

Rivers v. Guerrero,

605 U.S. 443 (2025) ......................................

Rodella v. United States,

467 F. Supp. 3d 1116 (D.N.M. 2020) ...........

Russ v. Watts,

414 F.3d 783 (7th Cir. 2005) ........................

SEC v. Graham,

21 F. Supp. 3d 1300 (S.D. Fla. 2014),

aff’d in part, rev’d in part, and

remanded,

823 F.3d 1357 (11th Cir. 2016) ....................

Shockley v. Vandergriff,

145 S. Ct. 894 (2025), reh’g denied,

145 S. Ct. 1977 (2025) .................................. 8, 17

Slack v. McDaniel,

529 U.S. 473 (2000) ................ i, 1, 8–9, 12, 16–17

Smith v. GTE Corp.,

236 F.3d 1292 (11th Cir. 2001) ....................

Taylor v. Grubbs,

930 F.3d 611 (4th Cir. 2019) ........................

Tillman v. Hubbard,

2007 WL 9752024 (E.D. Cal. 2007) .............

United States v. Arriaga-Pinon,

852 F.3d 1195 (9th Cir. 2017) ......................

United States v. Bajakajian,

524 U. S. 321 (1998) .....................................

United States v. Barbosa,

896 F.3d 60 (1st Cir. 2018) ..........................

United States v. Crooks,

769 Fed. App’x 569 (10th Cir. 2019)............

United States v. Ferguson,

868 F.3d 514 (6th Cir. 2017) ........................

United States v. Gomez-Sotelo,

18 Fed. App’x 690 (10th Cir. 2001)..............

United States v. Hataway,

933 F.3d 940 (8th Cir. 2019) ........................

United States v. McElhiney,

2018 WL 2087142 (D. Kan. 2018) ...............

United States v. Meyers,

200 F.3d 715 (10th Cir. 2000) ......................

United States v. Michaud,

901 F.2d 5 (1st Cir. 1990) ............................

United States v. Ross,

801 F.3d 374 (3d Cir. 2015) .........................

United States v. Segler,

37 F.3d 1131 (5th Cir. 1994) ........................

United States v. Smith,

949 F.3d 60 (2d Cir. 2020) ...........................

United States v. Wells,

519 U.S. 482 (1997) ..................................... 15–16

United States v. Williams,

504 U. S. 36 (1992) .......................................

Weinberger v. United States,

268 F.3d 346 (6th Cir. 2001) ........................

Wilson v. Sec’y, Pa. Dep’t of Corr.,

782 F.3d 110 (3d Cir. 2015) ........................ 13–14

Young v. Gutierrez,

895 F.3d 829 (5th Cir. 2018) ........................

Young v. Swaney,

2024 WL 4751643 (6th Cir. 2024) ...............

STATUTES:

28 U.S.C. § 1254 ..............................................

28 U.S.C. § 2253 ....................... 1, 3–4, 8, 14, 16, 20

28 U.S.C. § 2255 ........ i, 1–4, 6–7, 14–16, 21–22, 25

110 Stat. 1214 .................................................

RULES:

11th Cir. R. 22.1 .............................................. 7, 18

11th Cir. R. 27.2 ..............................................

11th Cir. R. 40.2 ..............................................

Fed. R. App. P. 22 ...........................................

Sup. Ct. R. 30.1 ...............................................

OTHER AUTHORITIES:

Bannon, Alicia, et al., Criminal Justice

Debt: A Barrier to Reentry (2010) ................

Diller, Rebekah, The Hidden Costs of

Florida’s Criminal Justice Fees (2010),

at https://tinyurl.com/2ejrua8t ....................

Huq, Aziz Z., Habeas and the Roberts

Court, 81 U. Chi. L. Rev. 519 (2014) ...........

NACDL Amicus Br., Young v. United

States, No. 24-571 (S. Ct.), at

https://tinyurl.com/8dcujazh ....................... 22–25

U.S. Courts, Caseload Statistics Data

Tables (Sept. 30, 2025) ................................ 14–15

Zeldin, Michael F., et al., Innocent Third

Parties in Federal Forfeiture

Proceedings: What are their rights?,

8 Crim. Just. 11 (1993) ................................

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Fred Davis Clark, Jr., respectfully petitions for a writ of certiorari to review the judgment of

the United States Circuit Court of Appeals for the

Eleventh Circuit. He seeks review of two circuit splits

of 3-3 and 5-2 regarding habeas issues.

Petitioner was a successful real estate developer. After extensive trial proceedings, he was prosecuted and

convicted under a novel bank fraud theory, sentenced

to 40 years’ imprisonment, and ordered to repay

$179,076,942 in restitution and forfeit $308,878,581.

While his direct appeal was pending, President

Trump commuted Petitioner’s 40-year sentence but

left intact his financial penalties. Thereafter, Petitioner dismissed his appeal on advice of counsel and

pursued a motion to vacate those financial penalties.

The district court denied relief and denied a certificate

of appealability. Similarly, the court of appeals denied

a certificate of appealability and denied reconsideration. That has teed up two circuit splits.

First, there’s a 3-3 circuit split whether, as this

Court suggested in Slack v. McDaniel, 529 U.S. 473,

484 (2000), the existence of a circuit split alone, notwithstanding contrary home circuit precedent, can

demonstrate that reasonable jurists could find a claim

debatable for purposes of granting a certificate of appealability under 28 U.S.C. § 2253(c)(2). The Fifth,

Sixth, and Eleventh Circuit reject the existence of a

circuit split as a basis for granting a certificate of appealability, and the district court followed that precedent: “While Movant cites to cases from other Circuits

that discuss the possibility of raising an argument

that restitution orders are not categorically excluded

from § 2255, the Court sees no reason to disturb the

well-set precedent of the Eleventh Circuit. Movant’s

claim is not cognizable under § 2255.” Pet. App. 6a. In

contrast, the Third, Ninth, and Tenth Circuits have

correctly held that the existence of a circuit split renders a claim debatable. The Court should grant certiorari to correct the unbending rule applied below.

Second, there’s also a 5-2 circuit split whether collateral challenges to noncustodial punishment, such

as forfeiture orders or restitution awards, can be cognizable under § 2255 if the financial penalty is sufficiently severe that it restrains liberty. The inflexible

majority rule of the First, Third, Fifth, Seventh, and

Eleventh Circuits holds that they’re never cognizable.

But the individualized, case-by-case approach of the

Second and Sixth Circuits holds that if a restitution

award or forfeiture order were sufficiently severe that

it restrained liberty, such challenges under § 2255

could be cognizable.

This case is a good vehicle for resolving both circuit

splits. As for procedure, both issues were exhaustively

litigated in and addressed by the lower courts. On the

merits, rejecting circuit splits as merely the product of

unreasonable jurists perverts the certificate of appealability inquiry and conflates it with a merits question.

And Petitioner’s financial penalties—which amount

to almost half a billion dollars—continue to restrain

his liberty (and his wife’s liberty) because they prevent or thwart him from making living arrangements,

obtaining credit, and pursuing business ventures. The

Court should grant certiorari.

OPINION BELOW

The orders of the district court (Pet. App. 1a–7a) and

the court of appeals (Pet. App. 8a–9a) are unreported.

JURISDICTION

The court of appeals filed its order denying a certificate of appealability on October 28, 2025. Pet. App. 8a.

Petitioner timely sought reconsideration. The court of

appeals filed its order denying reconsideration on December 17, 2025. Pet. App. 9a. On January 20, 2026,

Justice Thomas granted a 30-day extension (25A824)

to file this petition from March 17, 2026 until April 16,

2026. See Sup. Ct. R. 30.1. Petitioners now invoke this

Court’s jurisdiction under 28 U.S.C. § 1254(1); see also

Hohn v. United States, 524 U.S. 236, 253 (1998) (“this

Court has jurisdiction under § 1254(1) to review denials of applications for certificates of appealability by a

circuit judge or a panel of a court of appeals”).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. § 2253, which provides:

(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a district judge, the final

order shall be subject to review, on appeal, by the

court of appeals for the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final

order in a proceeding to test the validity of a warrant

to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken

to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court; or

(B) the final order in a proceeding under section

2255.

(c)(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional right.

(c)(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph

(2).

STATEMENT

Petitioner was a successful real estate developer. Initially, his company grossed $750 million in revenue,

including $300 million in real estate sales. Alas, during the Great Recession, his enterprise failed. At first,

when the SEC brough a civil proceeding against him,

he prevailed, SEC v. Graham, 21 F. Supp. 3d 1300,

1316 (S.D. Fla. 2014), aff’d in part, rev’d in part, and

remanded, 823 F.3d 1357 (11th Cir. 2016). But then,

he was prosecuted under a novel bank fraud theory.

See D.Ct. Doc. 351, United States v. Clark, No. 4:13cr-10034 (S.D. Fla.). After two jury trials, Petitioner

was convicted, sentenced to 40 years’ imprisonment,

and ordered to repay $179,076,942 in restitution and

forfeit $308,878,581. See D.Ct. Docs. 524, 630 & 631,

United States v. Clark, No. 4:13-cr-10034 (S.D. Fla.).

On direct appeal, Petitioner challenged his conviction. See C.A. Docs. 47 & 89, United States v. Clark,

Nos. 16-10811 & 16-14410 (11th Cir.). But because

there were so many grounds on which to challenge his

conviction, his 16,000-word appellant’s brief and almost 9,000-word reply brief—both of which were

drafted by the Hon. William F. Jung before his appointment to be a federal district judge—lacked room

to challenge his forfeiture order or restitution award.

See id. After briefing and oral argument concluded,

see C.A. Docs. 127–128, U.S. v. Clark, Nos. 16-10811

& 16-14410 (11th Cir.), President Trump commuted

the carceral component of Petitioner’s sentence on

January 13, 2021, but left Petitioner’s forfeiture order

and restitution award intact. C.A. Doc. 133, United

States v. Clark, Nos. 16-10811 & 16-14410 (11th Cir.).

At that point, while his direct appeal was still pending, Petitioner sought leave from the court of appeals,

over the government’s opposition, to provide supplemental briefing regarding his forfeiture order and restitution award. See C.A. Docs. 141 & 144, United

States v. Clark, Nos. 16-10811 & 16-14410 (11th Cir.).

As Petitioner explained, if leave were granted, he intended to brief those financial issues while voluntarily

dismissing or withdrawing all of his other arguments.

See C.A. Doc. 141 at 7–24, United States v. Clark, Nos.

16-10811 & 16-14410 (11th Cir.). That request for supplemental briefing wasn’t idle, because the forfeiture

order and restitution award were deeply flawed. Id. at

16–23.

For instance, the restitution award was indefinite

because the district court “failed to make a specific

factual finding on the actual amount of losses”—in

other words, “the actual amount of losses isn’t supported by or ascertainable from the record evidence,

and the district court failed to timely make the requisite, specific findings of fact.” Id. at 16–17 (footnote

and citations omitted). There were also “serious questions about the proper scope of the scheme” beyond

which Petitioner couldn’t be ordered to pay restitution. Id. at 17. Similarly, it was “undisputed that, at

sentencing, the district court established the loss

amount for the sentencing guidelines calculation by

considering relevant conduct that almost exclusively

involved uncharged and acquitted conduct.” Id. at 18–

19. Lastly, there were unresolved offset calculations

for assets sold and a settlement between a bank and

the Department of Justice. Id. at 21–22.

The forfeiture order raised further legal and factual

questions. Id. at 22–23. Specifically, its numbers

seemed to derive from the counts that were mistried,

not the counts of conviction. Id. There also were questions whether a forfeiture money judgment would be

available in the first place. Id.

Shortly after the government responded in opposition to Petitioner’s request for supplemental briefing,

the court of appeals denied Petitioner’s request. C.A.

Doc. 145, United States v. Clark, Nos. 16-10811 & 1614410 (11th Cir.). So, on advice of counsel, Petitioner

dismissed his appeal in its entirety. See C.A. Docs. 146

& 148, United States v. Clark, Nos. 16-10811 & 1614410 (11th Cir.).

Thereafter, Petitioner challenged his forfeiture order and restitution award by pursuing collateral relief

via 28 U.S.C. § 2255. See D.Ct. Doc. 1, Clark v. United

States, No. 4:23-cv-10027 (S.D. Fla.). The government

opposed, and Petitioner replied. D.Ct. Docs. 4.6 & 4.9,

Clark v. United States, No. 4:23-cv-10027 (S.D. Fla.).

Eventually, the district court denied relief, denied a

certificate of appealability, and entered judgment. See

D.Ct. Docs. 5–6, Clark v. United States, No. 4:23-cv10027 (S.D. Fla.). In particular, the order denying relief noted, “While Movant cites to cases from other

Circuits that discuss the possibility of raising an argument that restitution orders are not categorically

excluded from § 2255, the Court sees no reason to disturb the well-set precedent of the Eleventh Circuit.”

D.Ct. Doc. 5 at 4, Clark v. United States, No. 4:23-cv10027 (S.D. Fla.) (citing three examples of circuit precedent for the proposition that collateral challenges to

noncustodial punishment, such as forfeiture or restitution challenges, aren’t cognizable under § 2255).

Petitioner appealed, see D.Ct. Doc. 7, Clark v. United

States, No. 4:23-cv-10027 (S.D. Fla.), and sought a certificate of appealability from the court of appeals, see

C.A. Doc. 9, Clark v. United States, No. 25-10955 (11th

Cir.). Alas, Petitioner was unsuccessful: on October

28, 2025, the Eleventh Circuit denied a certificate of

appealability. Pet. App. 8a.

As permitted by circuit rules, Petitioner timely

sought reconsideration 21 days later. See C.A. Doc. 13,

Clark v. United States, No. 25-10955 (11th Cir.); see

also 11th Cir. R. 22.1(c) (“denial of a certificate of appealability, whether by a single circuit judge or by a

panel, may be the subject of a motion for reconsideration but may not be the subject of a petition for panel

rehearing or a petition for rehearing en banc”); id. 27.2

(allowing 21 days for motion for reconsideration); id.

40.2 (allowing 21 days for petition for rehearing). The

court of appeals denied reconsideration on December

17, 2025. Pet. App. 9a.

Petitioner now seeks certiorari from this Court regarding a 3-3 split over the certificate of appealability

process and a 5-2 split whether financial penalties are

ever cognizable under § 2255.

REASONS FOR GRANTING THE PETITION

I. There’s a 3-3 split whether a circuit split

alone can establish that reasonable jurists

could find a claim debatable for purposes of

granting a certificate of appealability

The Court should grant the petition to resolve a 3-3

circuit split whether, as this Court suggested in Slack

v. McDaniel, 529 U.S. 473, 484 (2000), the existence of

a circuit split alone, notwithstanding contrary home

circuit precedent, can demonstrate that reasonable jurists could find a claim debatable for purposes of

granting a certificate of appealability under 28 U.S.C.

§ 2253(c)(2). (This issue is already pending via a certiorari petition filed March 10, 2026 in Berry v. United

States, No. 25-7026 (S. Ct.), and this Court already

called for a response from the Solicitor General on

April 8, 2026.)

To be sure, this Court has flirted with the contours

of this issue before. See, e.g., Jordan v. Fisher, 135

S. Ct. 2647, 2651–52 (2015) (Sotomayor, Ginsburg,

and Kagan, JJ., dissenting from denial of certiorari)

(“reasonable minds could differ—had differed—on the

resolution of Jordan’s claim” because two circuit

judges had found claim debatable, and sister circuit

sitting en banc had granted relief on a similar claim);

Johnson v. Vandergriff, 143 S. Ct. 2551, 2553–54

(2023) (Sotomayor, Kagan, and Jackson, JJ., dissenting from denials of stay and certiorari) (court of appeals “was too demanding in assessing whether reasonable jurists could debate the merits of Johnson’s

habeas petition” because “[r]easonable jurists ha[d]

already disagreed” when state supreme court had denied claim over dissent, and three circuit judges had

dissented as to rehearing); Shockley v. Vandergriff,

145 S. Ct. 894, 897 (2025) (Sotomayor and Jackson,

JJ., dissenting from denial of certiorari) (“reasonable

jurists could obviously debate the merits of Shockley's

claim, as they have done at the Missouri Supreme

Court, the Eighth Circuit, and now this Court as

well”), reh’g denied, 145 S. Ct. 1977 (2025).

That’s not surprising: since the inception of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 110 Stat. 1214, this Court has repeatedly

granted review to superintend the certificate of appealability process, addressing: this Court’s ability to

review certificate of appealability rulings by the

courts of appeals, Hohn v. United States, 524 U.S. 236,

238–39 (1998); the jurisdictional nature of the statutory requirements for certificates of appealability,

Gonzalez v. Thaler, 565 U.S. 134, 137, 140–48 (2012);

the category of cases and orders subject to them, Jennings v. Stephens, 574 U.S. 271, 282–83 (2015); Harbison v. Bell, 556 U.S. 180, 183 (2009); Slack, 529 U.S.

at 480–82; the certificate of appealability standard itself, Slack, 529 U.S. at 483–85; and the application of

that standard to different fact patterns, see, e.g., Buck

v. Davis, 580 U.S. 100, 115–18, 122–23, 128 (2017);

Miller-El v. Cockrell, 537 U.S. 322, 335–38, 341–48

(2003).

Alas, the certificate of appealability process has

gone off the rails in several courts of appeals yet

again. But fixing it is part of the job description: “We

have periodically had to remind lower courts not to

unduly restrict this pathway to appellate review.”

McGee v. McFadden, 588 U.S. 923, 928 (2019) (Sotomayor, J., dissenting from denial of certiorari). As

before, the Court should grant review to superintend

the certificate of appealability process.

1.a. The petition raises a square, fresh, and entrenched circuit split.

For a decade, the Eleventh Circuit has repeatedly

held that a circuit split isn’t sufficient when there’s

contrary circuit precedent: “no [certificate of appealability] should issue where the claim is foreclosed by

binding circuit precedent because reasonable jurists

will follow controlling law.” Hamilton v. Sec’y, Fla.

Dep’t of Corr., 793 F.3d 1261, 1266 (11th Cir. 2015).

Since then, the Eleventh Circuit has repeatedly used

Hamilton’s procedural hurdle to bar habeas petitioners from receiving merits review of their habeas

claims. E.g., Lambrix v. Sec’y, Fla. Dep’t of Corr., 851

F.3d 1158, 1171 (11th Cir. 2017) (circuit splits don’t

present debatable claims “because reasonable jurists

would follow controlling law”); Gordon v. Sec’y, Dep’t

of Corr., 479 F.3d 1299, 1300 (11th Cir. 2007) (“If the

petitioner’s contention about the procedural ruling

against him is foreclosed by a binding decision—one

from the Supreme Court or this Court that is on

point—the attempted appeal does not present a substantial question, because reasonable jurists will follow controlling law.”); Lawrence v. Florida, 421 F.3d

1221, 1225 (11th Cir. 2005) (“The district court should

not have issued a [certificate of appealability] on the

statute of limitations issue because binding circuit

precedent clearly disposed of the issue.”).

Two other courts of appeal—the Fifth and Sixth Circuits—have joined the Eleventh Circuit. Those courts

of appeals likewise hold that certificates of appealability must be denied where a habeas petitioner seeks

to raise an issue on appeal that binding home circuit

precedent foreclosed—even if a sister circuit has resolved that issue in his favor.

For example, a Fifth Circuit panel a decade ago denied a certificate of appealability over dissent because, although a sister circuit had “taken a different

approach” to the same issue, “we are bound by our own

prior precedent on this issue.” Jordan v. Epps, 756

F.3d 395, 411 n.5 (5th Cir. 2014). As such, that panel

held his claim “would fail under our precedent” and

denied a certificate of appealability. Id.

The Fifth Circuit followed that approach again a

year later when it denied a certificate of appealability

because a petitioner’s argument was “foreclosed by

binding circuit precedent.” Allen v. Stephens, 805 F.3d

617, 633 (5th Cir. 2015). It explained, “although Allen

cites precedents from the Sixth and Seventh Circuits,

we must follow our own precedent.” Id. (footnote omitted). “Therefore, we deny a [certificate of appealability] on this claim.” Id.

Similarly, the Sixth Circuit relied on Hamilton and

held “our precedent [i]s the proper reference point” for

certificates of appealability. Mitchell v. United States,

43 F.4th 608, 616 (6th Cir. 2022). Thus, it held the habeas petitioner was “not eligible” for a certificate of

appealability because circuit precedent “bar[red]” the

petitioner’s claim. Id.

Since then, the Sixth Circuit has again applied

Mitchell to deny a certificate of appealability on an issue foreclosed by home circuit precedent. Young v.

Swaney, 2024 WL 4751643, at *2 (6th Cir. 2024) (citing Mitchell and its quotation of Hamilton). That was

so even though the petitioner relied on contrary precedent from a sister circuit. See id.

1.b. In contrast, at least two other circuits (the

Ninth and Tenth Circuits) and probably a third circuit

(the Third Circuit) have held the existence of a circuit

split alone is sufficient even when home circuit precedent is to the contrary.

Take, for instance, the Ninth Circuit, which happens

to have been the first circuit nationwide to address the

question in Lambright v. Stewart, 220 F.3d 1022 (9th

Cir. 2000). There, the panel explained, “[t]he Supreme

Court has made clear that the application of an apparently controlling rule [in a circuit] can nevertheless be

debatable for purposes” of a certificate of appealability. Id. at 1025.

To that end, Lambright interpreted this Court’s decisions in Slack and Lozada v. Deeds, 498 U.S. 430

(1991), to support this proposition. Lambright, 220

F.3d at 1027–28. That’s because, in Lambright’s view,

a circuit split renders an issue “debatable” and therefore “satisfies the standard for obtaining a [certificate

of appealability].” Id. “Under Slack, it is thus clear

that we should not deny a petitioner an opportunity to

persuade us through full briefing and argument to reconsider circuit law that apparently forecloses relief.”

Id. at 1026. And that’s what Lambright did: it granted

a certificate of appealability on an issue foreclosed by

well-settled circuit precedent because sister circuits

had accepted it. See id. at 1027–28 & n.6 (citing cases).

Since Lambright, the Ninth Circuit has repeatedly

reaffirmed that holding in other precedential opinions. A few years later, it again held that “[e]ven if a

question is well settled in our circuit, a constitutional

claim is debatable if another circuit has issued a conflicting ruling.” Allen v. Ornoski, 435 F.3d 946, 951

(9th Cir. 2006). And more recently, it recognized that

an issue was debatable and granted a certificate of appealability due to “the Sixth Circuit’s contrary holding” in Payton v. Davis, 906 F.3d 812, 821 (9th Cir.

2018) (citing Ornoski).

Unsurprisingly, district courts within the Ninth Circuit follow Lambright and grant certificates of

appealability given circuit splits notwithstanding contrary home circuit precedent. See, e.g., Dickinson v.

Shinn, 2020 WL 587850, at *6–8, *12 (D. Ariz. 2020);

Kamana’o v. Frank, 2010 WL 1783560, at *10 (D.

Haw. 2010); Bradway v. Tilton, 2008 WL 447509, at

*4, *16 (S.D. Cal. 2008); Tillman v. Hubbard, 2007 WL

9752024, at *1 (E.D. Cal. 2007); Allensworth v. Roe,

2007 WL 9770695, at *1 (C.D. Cal. 2007).

The rule in the Tenth Circuit is much the same. Panels there have granted certificates of appealability

when sister circuits’ conflicting decisions made constitutional claims debatable notwithstanding contrary

home circuit precedent. See, e.g., Franklin v. Lucero,

2021 WL 4595175, at *5 (10th Cir. 2021) (granting

certificate of appealability although circuit “precedent

unquestionably resolves the issue against Mr. Franklin” because “the existence of a circuit split” sufficed);

United States v. Crooks, 769 Fed. App’x 569, 572 (10th

Cir. 2019); United States v. Gomez-Sotelo, 18 Fed.

App’x 690 (10th Cir. 2001) (“Although this issue has

been settled in this circuit and not overturned by the

Supreme Court, the existence of a split among the circuits persuades us that reasonable jurists could debate [it].”).

Much like the Ninth Circuit, district courts within

the Tenth Circuit follow those decisions even though

they’re technically unpublished and therefore not

precedential. See, e.g., Rodella v. United States, 467

F. Supp. 3d 1116, 1126 (D.N.M. 2020) (granting certificate of appealability per Crooks); United States v.

McElhiney, 2018 WL 2087142, at *2 (D. Kan. 2018)

(applying Gomez-Sotelo).

Finally, the Third Circuit probably aligned itself

with the Ninth and Tenth Circuits when one of its

panels issued a certificate of appealability in Wilson

v. Sec’y, Pa. Dep’t of Corr., 782 F.3d 110, 115 (3d Cir.

2015). There, the ground was a sister circuit’s decision

that conflicted with district court orders within the

Third Circuit. Id. According to Wilson, that was

enough to demonstrate that reasonable jurists could

deem claim debatable because disagreement between

a sister circuit’s decision and within-circuit district

courts’ orders “demonstrates that the issue Wilson

presents is ‘debatable among jurists of reason.’” Id.

2. The issue is important and recurring. Indeed, it

implicates major structural concerns for the development of federal habeas law.

Thousands of federal inmates file motions to vacate

under 28 U.S.C. § 2255 each year. As recently as 2017,

the number of such motions approached 25,000. Last

year, it was closer to 4,000. So the existence of circuit

splits as a potential way to open courthouse doors is

significant. Thus, the question presented occurs with

great frequency.

Under AEDPA, a certificate of appealability is required to appeal the denial of any habeas corpus petition brought by a state petitioner and any § 2255 motion to vacate brought by a federal petitioner. 28

U.S.C. § 2253(c)(1). Notably, that includes capital

cases. These filings represent sizable portions of federal dockets. Between September 2024 and September 2025 alone, there were over 10,000 habeas corpus

petitions filed by state petitioners and over 3,000

§ 2255 motions filed by federal petitioners. See U.S.

Courts, Caseload Statistics Data Tables, tbl. C-3 at 1–

2 (Sept. 30, 2025).

Almost all those petitions are denied. See McGee v.

McFadden, 588 U.S. 923, 927 (2019) (Sotomayor, J.,

dissenting from denial of certiorari) (citing study that

reported habeas denial rate above 99%). And those denials generate appeals. Between September 2024 and

September 2025, there were over 2,000 appeals filed

in state-petitioner habeas cases and over 1,000 filed

in federal-petitioner § 2255 cases. See U.S. Courts,

Caseload Statistics Data Tables, tbl. B-1A at 1–2

(Sept. 30, 2025).

For nearly every denial, both district courts and

courts of appeals must decide whether to issue certificates of appealability. The rare exception is when a

petitioner prevails, as the government doesn’t need a

certificate of appealability. Fed. R. App. P. 22(b)(3).

But federal habeas law abounds with circuit splits:

AEDPA’s “text is so ambiguous, and so generative of

circuit splits, that it might as well have been drafted

as a delegation to the Court.” Aziz Z. Huq, Habeas and

the Roberts Court, 81 U. Chi. L. Rev. 519, 531 (2014).

So habeas issues often end up here. E.g., Bowe v.

United States, 146 S. Ct. 447, 454 (2026); Rivers v.

Guerrero, 605 U.S. 443, 459 (2025); Jones v. Hendrix,

599 U.S. 465, 477 (2023); Brown v. Davenport, 596

U.S. 118, 126–27 (2022).

The upshot is that circuit splits over AEDPA will

continue to proliferate faster than this Court can resolve them. Indeed, the circuit split here—over the

proper application of the certificate of appealability

standard itself—has festered since 2014. It’s now

firmly entrenched and past time for this Court to resolve it.

3. This case raises the issue in a clean vehicle. This

Court “may address a question properly presented in

a petition for certiorari if it was ‘pressed [in] or passed

on’ by the Court of Appeals.” United States v. Wells,

519 U.S. 482, 488 (1997) (quoting United States v. Williams, 504 U.S. 36, 42 (1992)).

Petitioner pressed the question in the district court.

See, e.g., D.Ct. Doc. 754 at 2–4, United States v. Clark,

No. 4:13-cr-10034 (S.D. Fla.). The district court unambiguously passed on the question: “While Movant cites

to cases from other Circuits that discuss the possibility of raising an argument that restitution orders are

not categorically excluded from § 2255, the Court sees

no reason to disturb the well-set precedent of the Eleventh Circuit.” Pet. App. 6a.

On appeal, Petitioner gave the court of appeals two

opportunities to reconsider its precedent. First, in his

initial application to the court of appeals or a certificate of appealability, Petitioner pressed the same

question he had advanced in the district court. See

C.A. Doc. 9 at 20–22, Clark v. United States, No. 2510955 (11th Cir.). Citing Slack, the court of appeals

spurned that effort. Pet. App. 8a. Then, on reconsideration, Petitioner pressed the question to the court of

appeals yet again. See C.A. Doc. 13 at 10–23, Clark v.

United States, No. 25-10955 (11th Cir.). Alas, the

court of appeals remained unmoved. Pet. App. 9a.

4. The order below is probably wrong. “Under

AEDPA, a [certificate of appealability] may not issue

unless “‘the applicant has made a substantial showing

of the denial of a constitutional right.’” Slack, 529 U.S.

at 483 (quoting 28 U.S.C. § 2253(c)). To make that

“substantial showing,” a habeas petitioner must satisfy either prong of a two-pronged test by (1) “showing

that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been

resolved in a different manner” or (2) “showing … that

the issues presented were adequate to deserve

encouragement to proceed further.” Id. at 483–84

(punctuation and citation omitted).

Given that two-pronged test, the court of appeals

erred in two ways. First, instead of also considering

whether issues raised “were adequate to deserve encouragement to proceed further,” it truncated Slack’s

two-pronged test into one prong about what “reasonable jurists could debate”—and even there, what they

could debate under home circuit precedent. Id. Second, the court of appeals categorically excluded all jurists who preside in sister circuits from the classification of “reasonable.”

That can’t be right. By denying a certificate of appealability whenever home circuit precedent contradicts an issue, the court of appeals made it impossible

to seek further appellate review from the en banc

court of appeals. And there are other “significant consequences.” Shockley, 145 S. Ct. at 895 (2025). For instance, “[a]t the certificate of appealability stage,

briefing is confined to less than half the word limit of

an ordinary appeal, and oral argument is presumptively denied.” Id. And “the grant of a certificate of appealability often marks the appointment of counsel, so

its denial generally deprives indigent litigants of the

opportunity for a counseled appeal.” Id.

All of those procedural wrinkles matter. Every court

of appeals applies some form of vertical stare decisis

by which panels are bound by prior panel precedent.

E.g., United States v. Barbosa, 896 F.3d 60, 74 (1st

Cir. 2018); Reilly v. City of Harrisburg, 858 F.3d 173,

177 (3d Cir. 2017); Taylor v. Grubbs, 930 F.3d 611, 619

(4th Cir. 2019); Young v. Gutierrez, 895 F.3d 829, 830

(5th Cir. 2018); United States v. Ferguson, 868 F.3d

514, 515 (6th Cir. 2017); United States v. Hataway,

933 F.3d 940, 946 (8th Cir. 2019); United States v.

Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017);

United States v. Meyers, 200 F.3d 715, 720 (10th Cir.

2000); Smith v. GTE Corp., 236 F.3d 1292, 1302–03 &

n.11 (11th Cir. 2001); In re Hodges, 882 F.3d 1107,

1120–21 (Fed. Cir. 2018). The only partial exceptions

are the Second, Seventh, and D.C. Circuits, which allow panels to overrule prior panel precedent so long as

they circulate the slip opinion to every active judge on

the court before publication. E.g., United States v.

Smith, 949 F.3d 60, 65 (2d Cir. 2020); Russ v. Watts,

414 F.3d 783, 784 n.1 (7th Cir. 2005); Jackson v.

Modly, 949 F.3d 763, 776 n.14 (D.C. Cir. 2020).

But the court of appeals forbids panels from overruling prior panel precedent, GTE Corp., 236 F.3d at

1302–03 & n.11, and its local rules forbid petitioners

from seeking en banc review of the denial of a certificate of appealability, see 11th Cir. R. 22.1(c) (“denial

of a certificate of appealability … may be the subject

of a motion for reconsideration but may not be the subject of a petition for panel rehearing or a petition for

rehearing en banc”). So the only possibilities for further appellate review from the court of appeals is by

filing a motion for reconsideration from the individual

judge or a motions panel (not a petition for en banc

rehearing) or seeking certiorari from this Court.

Alas, that is not judicially efficient. Rather, allowing

such procedural prohibitions to fester would result in

situations where this Court is left to clean up a lower

court’s messes instead of letting it clean up after itself.

That’s baffling. After all, “we usually allow the courts

of appeals to clean up intra-circuit divisions on their

own, in part because their doing so may eliminate any

conflict with other courts of appeals.” Joseph v. United

States, 574 U.S. 1038, 1038 (2014) (statement of Kagan, Ginsburg & Breyer, JJ.).

So unless the judicial objective is to set in stone a

legal framework that would inevitably deluge this

Court with certiorari petitions about habeas circuit

splits that the court of appeals never bothered to tidy

up, the prohibition applied below is senseless.

Moreover, by focusing on whether an argument

would prevail on appeal, the courts of appeals are

transforming the certificate of appealability inquiry

into a merits inquiry. That’s wrong, because it’s not

supposed to be “coextensive with a merits analysis.”

Buck, 580 U.S. at 115. Indeed, “[w]hen a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a [certificate of appealability] based on its adjudication of

the actual merits, it is in essence deciding an appeal

without jurisdiction.” Miller-El, 537 U.S. at 336–37.

Instead, “a claim can be debatable even though every

jurist of reason might agree, after the [certificate of

appealability] has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338.

In fact, that’s precisely why this Court reversed the

denials of certificates of appealability in both MillerEl and Buck: those court of appeals had effectively adjudicated and rejected the petitioners’ claims on the

merits rather than merely asking whether reasonable

jurists could debate them. See Buck, 580 U.S. at 116–

17 (“court below phrased its determination in proper

terms … but reached [its] conclusion only after essentially deciding the case on the merits”); Miller-El, 537

U.S. at 342 (court of appeals “was incorrect for an even

more fundamental reason” because until a certificate

of appealability issued, it “had no jurisdiction to resolve the merits of petitioner’s constitutional claims”).

So too here: by focusing entirely on whether Petitioner would prevail under binding circuit precedent,

the court of appeals conducted a quintessential merits

analysis instead of truly asking whether reasonable

jurists could debate his argument. That inverted the

statutory requirements and conflated the merits analysis for the certificate of appealability analysis. Miller-El, 537 U.S. at 342 (“a [certificate of appealability]

determination is a separate proceeding, one distinct

from the underlying merits”).

Lastly, beyond conducting an improper merits analysis, the procedural prohibition applied below subtly

but materially rewrote the certificate of appealability

standard in two ways.

First, it limited “reasonable jurists” to judges within

the petitioner’s home circuit. But the statutory language leaves that approach dead on arrival: the objective “reasonable jurist” standard used for the certificate of appealability determination isn’t limited to the

judges serving in the petitioner’s home circuit—rather, it includes a “circuit justice or judge.” 28 U.S.C.

§ 2253(c)(1). Because a “circuit justice” may issue certificates of appealability but isn’t bound by circuit

precedent, it cannot be that the “reasonable jurist” for

certificate of appealability purposes is limited only to

judges who are serving in the petitioner’s home circuit

and bound by home circuit precedent.

Second, even if that weren’t true, the standard applied below is still wrong. Cases like Hamilton ask

whether reasonable jurists would “follow” binding circuit precedent. Well, of course they would. But that’s

the wrong question, and it improperly reformulates

the certificate of appealability standard. The correct

question instead is whether a reasonable jurist could

“debate” the correctness of binding circuit precedent.

And when other circuits have reached a contrary conclusion, then by definition the issue is one that reasonable jurists could debate—the disagreement itself

reflects that they have already done so.

II. There’s a 5-2 split whether collateral challenges to noncustodial punishment are cognizable per § 2255 if the financial penalty is

so severe that it restrains liberty

The Court should also grant the petition to resolve a

5-2 circuit split about whether collateral challenges to

noncustodial punishment, such as forfeiture orders or

restitution awards, can be cognizable under § 2255 if

the financial penalty is sufficiently severe that it restrains liberty. Here, the financial penalties are almost $500 million. That’s a lot of money.

1.a. The First, Third, Fifth, Seventh, and Eleventh

Circuits have adopted an inflexible, one-size-fits-all

rule that financial penalties are never cognizable under § 2255. See United States v. Michaud, 901 F.2d 5,

7 (1st Cir. 1990); United States v. Ross, 801 F.3d 374,

380 (3d Cir. 2015); United States v. Segler, 37 F.3d

1131, 1137 (5th Cir. 1994); Barnickel v. United States,

113 F.3d 704, 706 (7th Cir. 1997); Mamone v. United

States, 559 F.3d 1209, 1211 (11th Cir. 2009); see also

Arnaiz v. Warden, Fed. Satellite Low, 594 F.3d 1326,

1330 (11th Cir. 2010); Blaik v. United States, 161 F.3d

1341, 1342 (11th Cir. 1998).

1.b. In contrast, the Second and Sixth Circuits have

adopted a flexible, case-by-case rule that if a restitution award or forfeiture order is sufficiently severe

that it restrains liberty, such challenges under § 2255

can be cognizable. See Gonzalez v. United States, 792

F.3d 232, 237 (2d Cir. 2015) (restitution order may

sufficiently severe restrain liberty to support § 2255

jurisdiction (discussing Kaminski v. United States,

339 F.3d 84, 87 (2d Cir. 2003)); Weinberger v. United

States, 268 F.3d 346, 351 n.1 (6th Cir. 2001) (§ 2255

doesn’t categorically bar challenges to restitution);

Ratliff v. United States, 999 F.2d 1023, 1027 (6th Cir.

1993) (vacating restitution order under § 2255 due to

counsel’s ineffectiveness).

2. The split is important. This Court has unambiguously held that restitution and forfeiture awards are

criminal punishment. Ellingburg v. United States,

146 S. Ct. 564, 568 (2026) (restitution); United States

v. Bajakajian, 524 U. S. 321, 328 (1998) (forfeiture).

But if petitioners can’t seek habeas review of such financial penalties, that means many forfeiture and

restitution orders might never receive any review—

which is precisely what happened here. And it also

might mean such petitioners, upon release, would still

not truly be free. Instead, they’d remain shackled by

the myriad collateral consequences that follow felony

convictions—which again is precisely what happened

here. See NACDL Amicus Br. 16–20 (collateral consequences of financial penalties), 1a–14a (Petitioner’s

and wife’s struggles with financial penalties since

their prosecution), Young v. United States, No. 24-571

(S. Ct.), at https://tinyurl.com/8dcujazh.

For instance, “criminal justice debt wreaks havoc on

individuals’ credit scores, … housing and employment

prospects.” Alicia Bannon et al., Criminal Justice

Debt: A Barrier to Reentry 27 (2010). Criminal justice

debts can eventually result in liens, garnishment, or

driver license suspensions. Ibid.; see also Rebekah

Diller, The Hidden Costs of Florida’s Criminal Justice

Fees 6 (2010), at https://tinyurl.com/2ejrua8t.

Similarly, a criminal defendant’s freedom often

turns on repaying criminal-justice debt. See Bannon

et al., supra, at 21 (15 states with highest prison

populations “make at least some forms of criminal justice debt a condition of probation or parole, including

for the indigent, putting individuals at risk of incarceration if a court finds that missed payments were

willful” (collecting state statutes)). Failure to pay

criminal-justice debt can also violate probation, disqualifying defendants from certain federal public benefits and putting those vital resources out of reach forever. See id. at 28 (collecting federal statutes).

Moreover, restoring defendants’ voting rights can

turn on whether they can buy them back, a prohibitive

burden for many. “Alabama, Arizona, Florida, and

Virginia all explicitly condition the restoration of voting rights on the repayment of at least some forms of

criminal justice debt.” Id. at 29. The court of appeals

recently upheld Florida’s repayment regime as constitutionally tolerable. See Jones v. Gov’r of Fla., 975

F.3d 1016, 1025 (11th Cir. 2020). Georgia and Texas

“require individuals to complete their ‘sentences,’

which may potentially include the payment of fines,

restitution, or other forms of criminal justice debt.”

Bannon, supra, at 29. And Louisiana, North Carolina,

and Texas “disenfranchise people on probation, while

also allowing the court to extend probation if a defendant has not paid off his or her debt by the expiration

of the probation term … effectively continu[ing] to

deny the right to vote.” Ibid. (emphasis added).

Financial penalties affect not only those convicted,

but also their families, friends, and communities. See

Michael F. Zeldin et al., Innocent Third Parties in Federal Forfeiture Proceedings: What are their rights?, 8

Crim. Just. 11 (1993). Criminal forfeiture of family

homes due to coconspirators’ conduct illustrates the

harm. In fact, that’s exactly what happened to Petitioner and his wife. See NACDL Amicus Br. 1a–14a,

Young v. United States, No. 24-571 (S. Ct.), at

https://tinyurl.com/8dcujazh.

Petitioner was a successful real estate and hospitality entrepreneur who worked alongside his wife and

partner. Id. In 2014, they were indicted for bank fraud

and money laundering for supposedly defrauding investors and lenders in a resort development project.

Id. Although the jury acquitted Petitioner’s wife of all

charges, it found Petitioner guilty of lesser charges of

providing mortgage down payment assistance to some

of his relatives who bought condos in the project. Id.

Nonetheless, the district court imposed a forfeiture

order of $309 million and a restitution award of $179

million on Petitioner, based on the total amount of

real estate closings in the project, even though the

jury had rejected the government’s theory that the

project was a Ponzi scheme. Id. Thus, the district

court forced Petitioner and his wife to disgorge hundreds of millions of dollars they never obtained, for

charges on which they were acquitted. Id.

The almost $500 million in financial penalties now

either entirely prevent (or at least significantly hamper) Petitioner from accessing credit, owning any assets, or pursuing his entrepreneurial gifts to his fullest extent. Id. Despite that hardship, Petitioner and

his wife founded Promising People, an organization

that recently received funding from the state of Florida to pilot virtual-reality-based trade job training

programs in prisons not unlike the ones that incarcerated them. Id. But for their overbearing financial penalties, Petitioner and his wife could expand Promising

People, providing access to job training and reducing

recidivism rates for the formerly incarcerated. Id.

And all of these financial penalties have been imposed without review by any court. On direct appeal,

after President Trump commuted his sentence, the

court of appeals forbade Petitioner from briefing his

restitution and forfeiture obligations. See C.A. Docs.

141 at 7–24 & 145, United States v. Clark, Nos. 1610811 & 16-14410 (11th Cir.). And on habeas review,

the district court refused to consider the question under circuit precedent. Pet. App. 8a. Finally, the court

of appeals likewise parried the merits questions on jurisdictional grounds. Pet. App. 8a–9a. That’s three

cases where Petitioner got no review.

That can’t be what Congress or the Founders intended. After all, modern in personam criminal forfeiture statutes mark a dramatic and draconian departure from two centuries of American legal tradition.

See NACDL Amicus Br. 1–16, Young v. United States,

No. 24-571 (S. Ct.), at https://tinyurl.com/8dcujazh;

see also Hester v. United States, 586 U.S. 1104, 1106

(2019) (Gorsuch and Sotomayor, JJ., dissenting from

denial of certiorari) (“allowing judges, rather than juries, to decide the facts necessary to support restitution orders” is “important,” “doubtful,” and not “‘wellharmonized’” with this Court’s precedents).

Also, this Court has repeatedly held that physical

custody is not a strict jurisdictional requirement under § 2255: “History, usage, and precedent can leave

no doubt that, besides physical imprisonment, there

are other restraints on a man’s liberty, restraints not

shared by the public generally, which have been

thought sufficient in the English-speaking world to

support the issuance of habeas corpus.” Jones v. Cunningham, 371 U.S. 236, 240 (1963) (defendant serving

parole was still in custody for habeas purposes); accord Justices of Boston Mun. Ct. v. Lydon, 466 U.S.

294, 301 (1984) (defendant released on personal recognizance was still in custody for habeas purposes);

Hensley v. Mun. Court, San Jose Milpitas Judicial

Dist., 411 U.S. 345, 351–53 (1973) (same). When astronomical financial penalties are imposed on criminal defendants, at least in cases like this one, they

should be subject to habeas review.

3. This case raises the issue in a clean vehicle. As

with the first issue, Petitioner “pressed” this question

in both the district court and the court of appeals, and

those courts “passed upon” it by applying circuit precedent that barred it from taking it up on jurisdictional

grounds. See supra Reasons I.3; see also C.A. Docs. 4.2

at 23–27, 4.9 at 3–5, 9 at 28–39, 13 at 7–16.

4. The order below is probably wrong. Its inflexible

one-size-fits-all majority rule takes no account of how

financial penalties or obligations can restrict liberty.

But a debtors’ prison is still a debtors’ prison whether

it’s enclosed by walls or in the open air. See supra Reasons II.2 (describing collateral consequences of criminal debts); see also Bearden v. Georgia, 461 U.S. 660,

664–73 (1983) (debtors prisons are unconstitutional).

CONCLUSION

The petition should be granted.

Respectfully submitted,

THOMAS A. BURNS

Counsel of record

BURNS, P.A.

301 W. Platt St., Ste. 137

Tampa, FL 33606

(813) 642-6350

tburns@burnslawpa.com

April 16, 2026

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.