Philippeaux v. United States of America

Filing 51

ORDER: It has come to the Court's attention, however, that in its prior orders, it inadvertently neglected to rule on whether a certificate of appealability shall issue. See 28 U.S.C. § 2253. Given that a district court may clarify its prior orders "in aid of the appeal," United States v. Viola, 555 F. App'x 57, 60 (2d Cir. 2014), it shall do so now. Because Petitioner makes no substantial showing of a denial of a constitutional right, a certificate of appealabilit y shall not issue as to any of the orders at Dkts. 38, 40, 42, and 44. See 28 U.S.C. § 2253(c)(2); Thaler v. United States, 706 F. Supp. 2d 361, 378-79 (S.D.N.Y. 2009) (a certificate of appealability "is required to appeal from a final o rder in a habeas corpus proceeding," as well as from "Fed R. Civ. P. 60(b) or 59(e) motions where the decision the court is being asked to amend or reconsider is a decision on the merits") (citations omitted). (Signed by Judge Ronnie Abrams on 6/24/2020) (rj)

Case 1:18-cv-05974-RA-SN Document 51 Filed 06/24/20 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 6/24/2020

PHILANDER PHILIPPEAUX,
Petitioner,

18-CV-5974 (RA)
ORDER

v.
UNITED STATES OF AMERICA,
Respondent.
RONNIE ABRAMS, United States District Judge:

Petitioner Philander Philippeaux, proceeding pro se, moved pursuant to 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence in connection with his September 2015 conviction. On
March 9, 2020, the Court adopted Magistrate Judge Netburn’s Report and Recommendation in its
entirety, and denied both the § 2255 petition and Petitioner’s collateral motions. See Dkt. 38.
Petitioner subsequently filed motions to alter or amend the Court’s Order, which the Court denied
several times. See Dkts. 40, 42, 44. On April 23, 2020, Petitioner filed a Notice of Appeal to the
Court of Appeals for the Second Circuit, Dkt. 45, and on April 29, 2020, he filed an Amended
Notice of Appeal, Dkt. 48. Pursuant to the Amended Notice of Appeal, Petitioner seeks to appeal
the Court’s March 9th Order, Dkt. 38, as well as its subsequent orders regarding Petitioner’s
motions to alter or amend the judgment, Dkts. 40, 42, 44.
It has come to the Court’s attention, however, that in its prior orders, it inadvertently
neglected to rule on whether a certificate of appealability shall issue. See 28 U.S.C. § 2253. Given
that a district court may clarify its prior orders “in aid of the appeal,” United States v. Viola, 555
F. App’x 57, 60 (2d Cir. 2014), it shall do so now. Because Petitioner makes no substantial
showing of a denial of a constitutional right, a certificate of appealability shall not issue as to any
of the orders at Dkts. 38, 40, 42, and 44. See 28 U.S.C. § 2253(c)(2); Thaler v. United States, 706

Case 1:18-cv-05974-RA-SN Document 51 Filed 06/24/20 Page 2 of 2

F. Supp. 2d 361, 378-79 (S.D.N.Y. 2009) (a certificate of appealability “is required to appeal from
a final order in a habeas corpus proceeding,” as well as from “Fed R. Civ. P. 60(b) or 59(e) motions
where the decision the court is being asked to amend or reconsider is a decision on the merits”)
(citations omitted).
SO ORDERED.
Dated:

June 24, 2020
New York, New York
Ronnie Abrams
United States District Judge

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