Simmons v. USA

Filing 16

ORDER ISSUING CERTIFICATE OF APPEALABILITY: On November 15, 2019, I issued an order denying Petitioner Tyrone Simmons's 28 U.S.C. § 2255 petition to vacate his conviction for brandishing a firearm in furtherance of a crime of violence. See ECF No. 164. Now before me is Petitioner's request that the Court issue a certificate of appealability ("COA") pursuant to Federal Rule of Appellate Procedure 22; as further set forth herein. I hereby issue a COA on the two issues described above, permitting Petitioner to appeal these issues to the Second Circuit. The Clerk is directed to terminate the open motion (ECF No. 165) and close the case. (Signed by Judge Alvin K. Hellerstein on 11/19/2019) (mro)

i

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
TYRONE SIMMONS,
Petitioner,
-againstUNITED STATES OF AMERICA,

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEF-IL-ED-:-r-{-r-11/f--(q-+(f..,.....,.~ORDER ISSUING CERTIFICATE
OF APPEALABILITY
16 Civ. 4797 (AKH)
08 Cr. 1133 (AKH)

Respondent.
-------------------------------------------------------------- X
ALVIN K. HELLERSTEIN, U.S.D.J.:
On November 15, 2019, I issued an order denying Petitioner Tyrone Simmons's
28 U.S.C. § 2255 petition to vacate his conviction for brandishing a firearm in furtherance of a
crime of violence. See ECF No. 164. Now before me is Petitioner's request that the Court issue
a certificate of appealability ("COA") pursuant to Federal Rule of Appellate Procedure 22. See
ECF No. 165; Fed. R. App. P. 22(b) ([I]n a 28 U.S.C. § 2255 proceeding, the applicant cannot
take an appeal unless a ... district judge issues a [COA] under 28 U.S.C. § 2253(c)); Second
Circuit Local Rule 22.1. Petitioner seeks a COA as to two of the Court's rulings:
1. First, the Court's holding "that the underlying predicates for Mr. Simmons'
[18 U.S.C.] § 924(c) plea were both Hobbs Act robbery conspiracy and
attempted Hobbs Act robbery. Although the plea agreement recited only
Hobbs Act robbery conspiracy as the underlying offense [with respect to the
§ 924(c) charge], the charging document recited both as the bases for the
924(c) charge." ECF No. 165, at 2.
2. Second, the Court's holding "that attempted Hobbs Act robbery is a crime of
violence under 18 U.S.C. § 924(c)." ECF No. 165, at 2.
Petitioner's request for a COA is granted. Although I believe that my rulings are
correct, "reasonable jurists," as Petitioner argues in his November 15 letter, see ECF No. 165,
might find otherwise. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (reasonable jurists need only
find the matter "debatable"); see Miller-El v. Cockrell, 537 U.S. 322, 337 ("[A] COA does not
require a showing that the appeal will succeed.").

I hereby issue a COA on the two issues described above, permitting Petitioner to
appeal these issues to the Second Circuit. The Clerk is directed to terminate the open motion
(ECF No. 165) and close the case.

SO ORDERED.
Dated:

November 19, 2019
New York, New York
United States District Judge

2