Reply Brief — Fred Davis Clark, Jr., Petitioner v. United States

No. 25-1199

In the Supreme Court of the United States

_________

FRED DAVIS CLARK, JR.,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

_________

PETITIONER’S REPLY BRIEF

_________

THOMAS A. BURNS

Counsel of record

BURNS, P.A.

301 W. Platt St., Ste. 137

Tampa, FL 33606

(813) 642-6350

tburns@burnslawpa.com

August 4, 2026

Counsel for Petitioner

ii

TABLE OF CONTENTS

Page

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

iii

REPLY ................................................................

1

I. The Court should grant certiorari in

both Berry and Clark to decide the certificate-of-appealability standard once

and for all ...................................................

1

II. The Court should also grant certiorari to

decide whether § 2255 challenges to

draconian financial penalties are cognizable when they restrain liberty ...........

10

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

11

APPENDIX A: Time-sensitive motion for

supplemental briefing (Apr. 20, 2021) ..............

1a

APPENDIX B: Order of the United States

Court of Appeals for the Eleventh Circuit

(Apr. 28, 2021)....................................................

20a

iii

TABLE OF AUTHORITIES

Page

CASES:

Amaya v. United States,

71 F.4th 487 (6th Cir. 2023) ........................

8

Barefoot v. Estelle,

463 U.S. 880 (1983) ......................................

5

Bousley v. United States,

523 U.S. 614 (1998) ......................................

10

Brown v. United States,

602 U.S. 101 (2024) ......................................

3–4

Gonzalez v. United States,

792 F.3d 232 (2d Cir. 2015) ......................... 7, 11

Greer v. United States,

593 U.S. 503 (2021) ......................................

3–4

Kaminski v. United States,

339 F.3d 84 (2d Cir. 2003) ........................... 7, 11

Mamone v. United States,

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

7

Ratliff v. United States,

999 F.2d 1023 (6th Cir. 1993) ...................... 7, 11

Rutherford v. Columbia Gas,

575 F.3d 616 (6th Cir. 2009) ........................

8

Slack v. McDaniel,

529 U.S. 473 (2000) ............................... 1–2, 9, 11

United States v. Bernard,

351 F.3d 360 (8th Cir. 2003) ........................

7

United States v. Mayhew,

995 F.3d 171 (4th Cir. 2021) ..................... 6–7, 11

iv

United States v. Rahimi,

602 U.S. 680 (2024) ......................................

2–3

United States v. Ross,

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

7

United States v. Rutigliano,

887 F.3d 98 (2d Cir. 2018) ........................... 6, 11

United States v. Thiele,

314 F.3d 399 (9th Cir. 2002) ........................

7

United States v. Watroba,

56 F.3d 28 (6th Cir. 1995) ............................

8

United States v. Wells,

519 U.S. 482 (1997) ......................................

6, 9

United States v. Williams,

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

6

Weinberger v. United States,

268 F.3d 346 (6th Cir. 2001) ..................... 7–8, 11

STATUTES:

28 U.S.C. § 2253 ..............................................

1–2

28 U.S.C. § 2255 .............................................. 6–11

RULES:

Fed. R. App. P. 40 ...........................................

4

REPLY

I. The Court should grant certiorari in both

Berry and Clark to decide the certificate-ofappealability standard once and for all

1. A certificate of appealability should issue when an

applicant has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

A quarter century ago, this Court suggested in Slack

v. McDaniel that a “substantial showing” under

§ 2253(c)(2) can be established by an underlying circuit split alone. 529 U.S. 473, 484 (2000). That was so

because a circuit split had necessarily (1) “show[n]

that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been

resolved in a different manner” or (2) “show[n] … that

the issues presented were adequate to deserve encouragement to proceed further.” Id. at 483–84 (punctuation and citation omitted).

Since then, as Berry and Clark explain (along with

Berry’s amici), a 3-3 circuit split has crystallized over

exactly what to do with a circuit split when there’s

contrary home circuit precedent. Berry Pet. 12–17;

Berry Reply 2–5; Clark Pet. 8–21. Even the Solicitor

General concedes it’s at least a 2-1 split. Berry BIO

10–11 & nn.1–2. And that split is sufficiently square,

fresh, and entrenched that further percolation would

be pointless. It’s time for this Court to resolve it.

2. The best way to resolve this split is to grant and

consolidate both Berry and Clark, which present narrow and broad versions of the same conflict. At minimum, the Court should grant Berry and hold Clark.

Here’s why: Berry involves an acknowledged circuit

split on an underlying issue in which those courts of

appeals have expressly held that their holdings di-

2

verge. Thus, granting in Berry alone would pose the

issue in its narrowest framing: whether an acknowledged circuit split presents a sufficiently “substantial

question” under § 2253(c)(2) to obtain a certificate of

appealability, or whether home circuit precedent is

dispositive.

But Clark is slightly different, and granting both petitions together would allow the Court a rare chance

to pursue a more consequential prize. Unlike Berry,

which involves the narrowest kind of underlying split,

Clark involves either an underlying split that’s

unacknowledged but still actual or at minimum what

even the Solicitor General concedes are many instances of Article III jurists “find[ing] a claim debatable,” Slack, 529 U.S. at 784, and leaving it open for

future cases.

Thus, granting Berry and Clark together would allow the Court to consider the core issue in a broader

framing: whether an acknowledged circuit split, an

unacknowledged-but-actual circuit split, or dicta from

this Court, a sister circuit, or an Article III jurist alone

present a sufficiently “substantial question” under

§ 2253(c)(2) to obtain a certificate of appealability, or

whether home circuit precedent is dispositive.

Given that broader framing of the issue if this Court

simultaneously granted in Berry and Clark for consolidated merits proceedings, consider the various rules

that this Court might ultimately adopt:

First, the Court could agree with the Solicitor General’s merits argument and hold home circuit precedent is always dispositive, which in practice would

stymy habeas applicants by inexorably leaving home

circuit precedent immune from en banc review and

“trapped in amber.” United States v. Rahimi, 602 U.S.

3

680, 691 (2024). Second, the Court could agree with

Berry but not Clark by drawing the line somewhere

between them and holding that acknowledged circuit

splits despite contrary home circuit precedent are sufficient for certificates of appealability (Berry),

whereas unacknowledged-but-actual circuit splits or

dicta from this Court, a sister circuit, or Article III jurists alone are not (Clark). Third, the Court could

agree with Berry and Clark that acknowledged circuit

splits, or unacknowledged-but-actual circuit splits, or

dicta from this Court, a sister circuit, or Article III jurists are sufficient.

Thus, judicial efficiency and finality in the form of

granting Berry and Clark together would outweigh judicial incrementalism in the form of granting Berry

alone. Indeed, Berry’s and Clark’s simultaneous pendency presents a rare opportunity to fully deliberate

and decide the certificate-of-appealability standard

once and for all. So ultimately, the question at the certiorari stage turns on how narrowly or broadly the

Court would prefer to consider the issue.

Recent history supports the broader approach. For

instance, in the recent past, this Court has often

granted multiple petitions together to consider particular issues with a 360-degree factual view along with

the full panoply of possible legal formulations of the

ultimate holding. Consider two recent examples:

First, in Brown v. United States, this Court granted

two defendants’ certiorari petitions and consolidated

the cases. 602 U.S. 101, 108 (2024). That allowed this

Court to consider three different timing rules for when

predicate offenses might qualify as ACCA predicates.

See id. at 108–11. Second, in Greer v. United States,

this Court granted two defendants’ certiorari petitions

and consolidated the cases. 593 U.S. 503, 507 (2021).

4

Doing so allowed this Court to consider on plain-error

review whether there was a “reasonable possibility”

that one defendant would’ve been acquitted and

whether the other wouldn’t have pleaded guilty. Id. at

508. Thus, in cases like Brown and Greer, the purpose

of granting two petitions and consolidating the cases

was to allow this Court to consider the full array of

options at its disposal. And that’s what the Court

should do here as well.

3. Regardless whether this Court takes a narrow or

broad approach, the Solicitor General’s vehicle concerns about Berry and Clark are unpersuasive.

3.a. For starters, resolving the split is meaningful.

In Clark, as he did in Berry, the Solicitor General asserts that resolving the circuit split about the certificate-of-appealability standard is “unwarranted” because he thinks an acknowledged 3-3 or 2-1 circuit

split that has hardened over a quarter century merely

reflects “limited disagreement” and would have no

“significant practical effect.” BIO 13. In Berry, he

claimed the “burdens of briefing and merits disposition of every case in which the issue is asserted, with

an outcome controlled by circuit precedent, will secure

no significant offsetting benefit to litigants or courts.”

Berry BIO 12. He is mistaken. See Berry Reply 6–13;

Clark Pet. 9–15.

Most obviously, the issuance of a certificate of appealability triggers the appointment of counsel and

the availability of both a petition for initial hearing en

banc and a petition for rehearing en banc. See Fed. R.

App. P 40(a), (g). In particular, petitions for initial

hearing en banc can be especially useful tools for appellants when unreasoned circuit precedent has gone

off the rails from the jump. See, e.g., C.A. Docs. 42 &

53, United States v. Ruan, No. 24-12319 (11th Cir.)

5

(seeking initial en banc review of post-Ruan II 2-2-1

circuit split regarding pain clinic conspiracy convictions based on incorrect substantive-count instructions). And en banc rehearing can be useful even when

both circuit precedent and sister circuits have incorrectly albeit unanimously rejected an appellant’s position. See, e.g., C.A. Docs. 117 & 123, United States v.

Lebarron, 178 F.4th 646 (11th Cir. 2026) (No. 2112157) (seeking rehearing of causation, mens rea, and

actus rei elements of Controlled Substances Act’s

death enhancements at panel’s unanimous invitation). Thus, the Solicitor General errs when he says

“the issuance of a certificate of appealability to allow

the prisoner to appeal would simply authorize an appeal to an appellate panel that itself would be bound

by the same precedent.” Berry BIO 12. That’s just not

how ordinary en banc appellate procedures work.

And resolving the split is judicially efficient. Granting certificates of appealability on debatable issues

notwithstanding contrary home circuit precedent facilitates issue percolation and precedential refinements, which could simplify or even reduce this

Court’s caseload. See Berry Reply 8. Similarly, the

burdens on courts of appeals that correctly issue certificates of appealability despite contrary home circuit

precedent are minimal. See id. at 10 (citing Barefoot

v. Estelle, 463 U.S. 880, 889 (1983)).

3.b. Also, the Solicitor General’s vehicle concerns

about Berry are fanciful (see Berry Reply 13–15), and

his vehicle concerns about Clark are equally feigned.

Indeed, the Solicitor General doesn’t seriously dispute that the issue is important and recurring or that

it implicates major structural concerns for the development of federal habeas law. See Clark Pet. 14–15.

Nor does the Solicitor General dispute that Petitioner

6

“‘pressed’” his question in both the district court and

the court of appeals, both of which “‘passed’” on it.

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

see also Clark Pet. 15–16. Instead, he raises two other

vehicle concerns. Neither has merit.

3.b.1. The Solicitor General quibbles with the taxonomy of Petitioner’s underlying circuit split about the

redressability of financial penalties under § 2255. BIO

8–12. In fact, trying to dodge the question, he tactically inverts the order of Petitioner’s certiorari arguments. BIO 8–14. Regardless, he’s wrong.

He doesn’t dispute that, as Petitioner already explained, “[t]he First, Third, Fifth, Seventh, and Eleventh Circuits have adopted an inflexible, one-size-fitsall rule that financial penalties are never cognizable

under § 2255.” Pet. 21 (collecting cases). Instead, he

takes issue with Petitioner’s interpretation of the Second and Sixth Circuit’s precedents. BIO 8–12. Citing

a treatise plus cases from the majority side of the split,

most of which Petitioner already cited (Pet. 21), he

says, “no court of appeals to have fully considered and

squarely addressed the question has held that Section

2255 authorizes challenges to such monetary sanctions.” BIO 9 (citations omitted).

But two of his cases expressly acknowledged “the

possibility that an exceptionally draconian restitution

order ‘might entail a sufficiently severe restraint on

liberty ... as to amount to a form of custody,’ so that a

challenge to the order could constitute a claim ‘to be

released’ within the meaning of § 2255.” United States

v. Mayhew, 995 F.3d 171, 183 n.4 (4th Cir. 2021); accord United States v. Rutigliano, 887 F.3d 98, 105–07

(2d Cir. 2018) (“we have left open the question

whether such fines and orders ‘could ever be such a

7

restraint on the liberty of a petitioner as to amount to

custody’” (citation omitted)). Others never considered

that possibility either way. Mamone v. United States,

559 F.3d 1209, 1210–11 (11th Cir. 2009); United

States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003);

United States v. Thiele, 314 F.3d 399, 401–02 & n.3

(9th Cir. 2002). And one of his cases (BIO 9) involved

a challenge to a $100 special assessment, see United

States v. Ross, 801 F.3d 374, 380–81 (3d Cir. 2015),

which is a teeny bit different from the half billion dollars in financial penalties to which Petitioner (and his

wife) remain subjected.

Thus, contrary to the Solicitor General’s framing,

it’s more accurate to say that no court of appeals to

have fully considered and squarely addressed the

question has rejected the possibility that § 2255 authorizes challenges to draconian monetary sanctions.

In fact, beyond the Fourth Circuit in Mayhew, the Solicitor General concedes that the Second Circuit has

expressly and repeatedly left open the possibility that

financial penalties could be so draconian that they

qualify as “custody” for § 2255 purposes. BIO 9–10

(discussing Gonzalez v. United States, 792 F.3d 232,

237 (2d Cir. 2015), and Kaminski v. United States, 339

F.3d 84, 87 (2d Cir. 2003)). But neither the Fourth nor

the Second Circuit has encountered a § 2255 challenge to truly draconian financial penalties as here.

Next, the Solicitor General tries to cabin the Sixth

Circuit’s holdings in Ratliff v. United States, 999 F.2d

1023, 1027 (6th Cir. 1993), and Weinberger v. United

States, 268 F.3d 346, 362 (6th Cir. 2001), as “limited

to Section 2255 claims challenging restitution based

on constitutionally ineffective counsel.” BIO 10–12.

But he’s evading Petitioner’s assertion that an openair debtor’s prison—which is exactly what a half-bil-

8

lion-dollar financial penalty is—still qualifies as “custody” within § 2255’s meaning. And his suggestion

that the government “did not argue” to the Sixth Circuit whether § 2255 reaches financial-penalty claims

is wrong. See Weinberger, 268 F.3d at 351 n.1.

Regardless whether financial penalties are framed

as constitutional violations or the deprivation of effective counsel, it’s indisputable that the Sixth Circuit

has twice held that restitution awards were cognizable via § 2255. Weinberger, 268 F.3d at 351 n.1; Ratliff, 999 F.2d at 1027. Those holdings can’t be harmonized with the majority of circuits to consider that

statutory question, so there’s an actual circuit split.

The Sixth Circuit’s subsequent holdings in United

States v. Watroba, 56 F.3d 28, 351 n.1 (6th Cir. 1995),

and Amaya v. United States, 71 F.4th 487, 490 (6th

Cir. 2023), don’t alter that precedent. Watroba “rejected a prisoner's challenge in a § 2255 motion to the

imposition of the costs of his imprisonment and supervised release—not a restitution order.” Weinberger,

268 F.3d at 351 n.1. And Amaya was a § 2255 challenge to a special assessment. 71 F.4th at 490. Moreover, the Sixth Circuit’s horizontal stare decisis places

exclusive precedential weight on the first panel to decide a question, with no exceptions for prior panels

that overlooked possible arguments. See Rutherford v.

Columbia Gas, 575 F.3d 616, 621 (6th Cir. 2009).

So what’s the upshot? No court of appeals to have

fully considered and squarely addressed the question

has rejected the possibility that § 2255 authorizes

challenges to draconian monetary sanctions. But at

least one court of appeals (the Second) has expressly

and repeatedly left that question open, and another

(the Fourth) has acknowledged the possibility that it

could be an open question. As a general matter, five

9

courts of appeals have adopted rules that generally reject the possibility that financial penalties are cognizable under § 2255, at least in mine run cases. But

at least one (the Sixth) has twice held that restitution

awards were cognizable.

This disarray reflects that reasonable jurists are actively debating the question per Slack and awaiting a

case with appropriate facts to resolve it. But even

though Petitioner’s case arose with the appropriate

facts, the Eleventh Circuit’s one-size-fits-all rule that

renders home circuit dispositive barred it from issuing

a certificate of appealability and prevented it from

considering the question en banc via a petition for initial hearing en banc or a petition for rehearing en

banc. That’s the problem—and that’s why it’s so critical for this Court to revisit the certificate-of-appealability standard broadly to resolve it once and for all.

3.b.2. Reprising his similarly baseless objection in

Berry (see Berry BIO 18–20), the Solicitor General

says Petitioner procedurally defaulted his claims

about his financial penalties when he dismissed his

appeal. BIO 13–14. But he’s wrong.

Factually, he overlooks that Petitioner’s 25-page

motion for supplemental briefing presented his substantive arguments about restitution and forfeiture

(Pet. Supp. App. 11a–17a), and the court of appeals

denied leave after considering those merits (id. 20a).

Thus, for preservation purposes, Petitioner “‘pressed’”

the question, and the court of appeals “‘passed’” upon

it. Wells, 519 U.S. at 488 (citation omitted). If a claim

is preserved for further appellate review, it can’t be

procedurally defaulted per § 2255. Indeed, the Solicitor General cites no authority for the proposition that

litigants procedurally default positions asserted by

motion (see Pet. Supp. App. 1a–19a) and rejected by

10

interlocutory order (see id. 20a). And Petitioner is

aware of none.

Bousley v. United States, 523 U.S. 614, 622–23

(1998) (cited at BIO 14), doesn’t hold otherwise. Instead, it describes the procedural-default standard

that the court of appeals would apply on remand. See

Berry Reply 13–15. Indeed, it’s odd that the Solicitor

General is pursuing a procedural-default argument

that tries to capitalize on the government’s prior successful opposition to Petitioner’s motion for supplemental briefing. See C.A. Doc. 144 at 2–12, United

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

4. Finally, the Solicitor General’s merits defense of a

rule that always renders home circuit precedent dispositive (BIO 8) is half-hearted and wrong. See Berry

Reply 5; Clark Pet. 16–21.

II. The Court should also grant certiorari to

consider whether § 2255 challenges to draconian financial penalties are cognizable

when they restrain liberty

A half billion dollars is a lot of money. See Clark Pet.

21–26. That financial penalty is so draconian that it

bars Petitioner (and his wife) from participating in political and commercial life. Id. In effect, they’re unconstitutionally imprisoned by financial penalties. Id.

The Solicitor General doesn’t dispute that this issue

is important or that this Court has unambiguously

held that restitution and forfeiture awards are criminal punishment. Pet. 22. Nor does he dispute that

criminal justice debt wreaks havoc on defendants

even after they’ve completed their sentences, including the loss of voting rights and limitations on the

ability to engage in commerce. Id. at 22–24. Nor does

he dispute this Court has repeatedly held that physi-

11

cal custody is not a strict jurisdictional requirement

under § 2255. Id. at 25–26. Nor does he dispute that

debtor’s prisons are unconstitutional. Id. at 26.

Thus, if the Court grants certiorari on the certificate-of-appealability question, it should also grant

certiorari on the substantive question whether draconian financial penalties are cognizable via § 2255. The

Sixth Circuit has twice held restitution awards are

cognizable, Weinberger, 268 F.3d at 351 n.1; Ratliff,

999 F.2d at 1027, the Fourth Circuit has acknowledged the possibility that financial penalties could be

cognizable, Mayhew, 995 F.3d at 183 n.4, and the Second Circuit has repeatedly and expressly left that

question open, Rutigliano, 887 F.3d at 105–07; Gonzalez, 792 F.3d at 237; Kaminski, 339 F.3d at 87. No

circuit has expressly rejected the possibility. This

Court should resolve it. And resolving it would also

buttress that the Slack standard means what it says.

CONCLUSION

The Berry and Clark petitions should be granted and

consolidated. Alternatively, the Berry petition should

be granted, and the Clark petition should be held.

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

August 4, 2026

Counsel for Petitioner