Simmons v. United States
- Alvin Hellerstein
- 1:16-cv-04797
- U.S. District Court · Southern District of New York
- 2
In Simmons v. United States, Judge Hellerstein granted Simmons a certificate allowing him to appeal two issues from his denied petition.
Tyrone Simmons received permission to appeal two issues concerning his firearm conviction; the United States remains the respondent, and the appeal may proceed to the Second Circuit on those issues.
What happened
In Simmons v. United States, Tyrone Simmons had asked the court to vacate his conviction for brandishing a firearm during a violent crime. On November 15, 2019, the court denied that petition.
Simmons then asked for a certificate of appealability, which is required before he could appeal the ruling. He identified two issues: whether his conviction was based on both Hobbs Act robbery conspiracy and attempted Hobbs Act robbery, and whether attempted Hobbs Act robbery qualifies as a violent crime under the federal firearm statute.
Judge Alvin K. Hellerstein granted the certificate for both issues, allowing Simmons to appeal them to the Second Circuit. The judge stated that reasonable judges could disagree about the issues, but he did not change the earlier ruling or say that the appeal would succeed. The clerk was directed to terminate the motion and close the case.
The detailed version
- Simmons v. United States · No. 1:16-cv-04797
- Alvin Hellerstein
- Nov. 19, 2019
Background
On November 15, 2019, the court denied Tyrone Simmons’s petition under 28 U.S.C. § 2255 to vacate his conviction for brandishing a firearm in furtherance of a crime of violence. This order addresses only Simmons’s later request for a certificate of appealability, or COA. A COA is required before a person may appeal the denial of a § 2255 petition.
Issues Identified for Appeal
Simmons sought a COA on two rulings from the earlier order:
1. Whether the underlying offenses for his conviction under 18 U.S.C. § 924(c) were both conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. The plea agreement identified only Hobbs Act robbery conspiracy for that charge, while the charging document identified both offenses. 2. Whether attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c).
Ruling
Judge Alvin K. Hellerstein granted Simmons’s request for a COA on both issues and issued the certificate, permitting him to appeal those issues to the Second Circuit. The judge stated that he believed the earlier rulings were correct but that reasonable judges might find the issues debatable. The order did not decide that Simmons would prevail on appeal. The clerk was directed to terminate the open motion and close the case.
Disposition
The request for a certificate of appealability was granted. The order did not vacate the conviction, reverse the earlier denial of the § 2255 petition, or otherwise decide the merits of the appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.